Friday 9 October 2015

consumer rights



The definition of Consumer right is 'the right to have information about the quality, potency, quantity, purity, price and standard of goods or services’, as it may be the case, but the consumer is to be protected against any unfair practices of trade. It is very essential for the consumers to know these rights.
However there are strong and clear laws in India to defend consumer rights, the actual plight of consumers of India can be declared as completely dismal. Out of the various laws that have been enforced to protect the consumer rights in India, the most important is the Consumer Protection Act, 1986. According to this law, everybody, including individuals, a firm, a Hindu undivided family and a company, have the right to exercise their consumer rights for the purchase of goods and services made by them. It is significant that, as consumer, one knows the basic rights as well as about the courts and procedures that follow with the infringement of one’s rights.
 In general, the consumer rights in India are listed below:
  • The right to be protected from all kind of hazardous goods and services
  • The right to be fully informed about the performance and quality of all goods and services
  • The right to free choice of goods and services
  • The right to be heard in all decision-making processes related to consumer interests
  • The right to seek redressal, whenever consumer rights have been infringed
  • The right to complete consumer education
The Consumer Protection Act, 1986 and several other laws like the Weights, Standards & Measures Act can be formulated to make sure that there is fair competition in the market and free flow of correct information from goods and services providers to the ones who consume them. In fact, the degree of consumer protection in any country is regarded as the right indicator of the progress of the country.There is high level of sophistication gained by the goods and services providers in their marketing and selling practices and different types of promotional tasks viz. advertising resulted in an increasing requirement for more consumer awareness and protection. The government of India has realized the condition of Indian consumers therefore the Ministry of Consumer Affairs, Food and Public Distribution has incorporated the Department of Consumer Affairs as the nodal organization to protect the consumer rights, redress the consumer grievances and promote the standards governing goods and services provided in India.
If there is infringement of rights of consumer then a complaint can be made under the following circumstances and reported to the close by designated consumer court:
  • The goods or services purchased by a person or agreed to be purchased by a person has one or more defects or deficiencies in any respect
  • A trader or a service provider resort to unfair or restrictive practices of trade
  • A trader or a service provider if charges a price more than the price displayed on the goods or the price that was agreed upon between the parties or the price that was stipulated under any law that exist
Goods or services that bring a hazard to the safety or life of a person offered for sale, unknowingly or knowingly, that cause injury to health, safety or life.

Will




How to make your Will
We’ll explain how to make your Will, simply, and briefly.
A Will is your direction that after your death, which of your asset (ie Estate) should be distributed to whom (ie Legatee).
Since you will not be around to ensure its distribution, you should mention who will do this (ie Executor).
In order to prove that the Will is indeed prepared and signed by you, you need two people to witness this (ie Witnesses). Of course you have to be an adult and of sound mind to make a Will.
A Will is the least legal of legal documents and if you follow a few simple rules, you can prepare it yourself and it can even be hand written. Contrary to what is the general belief, a Will does NOT have to be Registered, does NOT need to be on a Stamp Paper or even the green legal paper and does NOT need to be Notarized.
You can use www.indianwillmaker.com to make your Will, then print it on a plain paper, sign every page and the last page along with two witnesses, and it becomes a valid Will. Leave this with someone you trust or keep it with yourself and inform someone you trust where it can be found. Although not necessary, you may register the Will (go through FAQs on registration) to make it difficult for people to claim that it is not genuine.
You can add/sell assets that are mentioned in your Will. You can change or withdraw your Will at any time. The latest Will is applicable even though an earlier one may be registered (although it is then better to register the latest).
You don’t need to worry about complicated terms although they are simply explained in this site (FAQ's).
In your Will, you can give or bequeath -
  • everything you bought from your income
  • asset that you inherited without conditions on future use
  • your share of every other asset
  • only 1/3 of your assets, if you are a Muslim.
It is possible that you have appointed nominee(s) for certain assets. Doing this is not enough because a nominee strictly speaking, is not a legal heir. A nominee is someone who takes care of your asset after your death until it is transferred to the real legal heir. If you don’t have a Will, the legal heir is determined by law and could stake a claim from the nominee and disputes could arise. A Will overrides a nomination.
Here are a few good practices in making a Will -
  • Keep your Will simple.
  • In general, the order of preference to distribute  asset to legatees and their alternates is : (1) Spouse (2) Children (3) Parent(s) (4) Brothers/Sisters (5) Other Relatives (6) Friends. Many people prefer giving something to charity too.
  • Preferably don't give a asset to more than one person even if you specify their shares, since that can complicate distribution.
  • You can describe more specifically some assets which don't change often, such as real estate, or which may be confused with others.
  • Don't describe more specifically some assets that change often, such as "shares of X company" or "Y Mutual Fund".
  • Always select alternates to replace legatees. This is because death can come at any time and it's possible that a legatee has died before or along with you.  You may therefore not have a chance to change your Will.
  • Certain persons are required to implement your Will after your death, such as Executors, Guardians, Witnesses etc. These people should preferably be younger than you, since their work starts after your death.
  • After making your Will, if there is any addition to the family or a key legatee or Executor or Guardian or Witness has expired, you should change your Will.
  • Any legatee (and an Executor, if you are a Christian or a Parsi) should not be made a Witness.
  • Keep the Will confidential. Nobody needs to read your Will, including Witnesses. They only witness your signature.
www.indianwillmaker.com is designed to help you avoid common legal and logical mistakes and follow many good practices.
You should not stop at just making your Will. You should organise your documents and information so that these can be found easily to make your asset distribution smoother. We have provided a Checklist of documents and information that you should organise to ease the distribution. This is available free of cost under "Services". Keep this Checklist of Important Information with yourself and inform the Executor or someone you trust as to where it can be found.
Whether your Will is prepared by yourself or by a lawyer or by using this site, you should understand that it is not possible to foresee all situations, some of which could lead to complications in implementation.
We are NOT qualified legal advisers (although we have sought their advise during the development of this site). We cannot and will not provide you with any legal advice. Please go through our Terms of Use for this site.

You don’t have to be rich or old to make a Will. Every adult should make a Will.

Maintenance







Code of Criminal Procedure:
Section 125 of the Code of Criminal Procedure reads as follows:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :
This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not being a married daughter) who has attained majority, where such child by reason of any physical or mental abnormality or injury unable to maintain itself or a person's father or mother unable to maintain himself or herself.
From the reading of the section it is clear that a person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in a Civil Court, this Section is provided to get maintenance as early as possible. For a person, food, clothing and shelter is essential. While ordering maintenance, Court has to consider whether the wife is living separately on reasonable grounds. The wife can refuse to live with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance from her husband under this Section if she is living in adultery, or husband and wife are living separately by mutual consent. The petitioner can file any number of petitions under Section 125 Cr.P.C for enhancement of
maintenance when the circumstances change. The Court after considering the change of circumstances can enhance the maintenance accordingly. Originally a magistrate can order Rupees 500 per month as maximum maintenance. After the recent amendment maintenance exceeding Rs.500 can be ordered according to the circumstances of each case.
Wives right to maintenance is not absolute under 125 of the Code. It is Circumscribed by the fact that she is unable to maintain herself and further the husband having sufficient means neglected or refused to maintain her. No doubt, there is a clear distinction between the locus standi or competence to file a petition for maintenance under Section 125 of The Code by any of the persons illustrated in the Section and their being entitled on merits to particular amounts of maintenance thereunder. However, the premises for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated in the Section. K.M.Nagammalappa Vs. B.J.Lalitha, 1985 Cr.L.J 1706 (KANT) See also Hyma Krishnadass Vs. M.Krishnadass, 1985 (2) CRIMES 661 (KER), Habeebulla Vs. Shakella, 1984 Cr.L.J 1062.
Quantum of Maintenance
Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956.
The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said observation by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc.. While fixing the amount of maintenance, the Court should also take into account considering the inflation and cost of living and his obligation to support the minor child and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).
There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is only the independent income of the payee which is to be considered. While granting relief of permanent alimony, the court has to keep in view the following considerations:
i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.
Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab)
In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the Hindu Marriage Act.
Enforcement:
After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this Section unless applications made to the Court to levy such amount within a period of one year it became due. Proceedings under Section 125 Cr.P.C is considered to be of a civil nature. Though they are wholly governed by the procedure of the code of criminal procedure, they are really of civil nature, but are dealt with summarily in a Criminal Court for the purpose of speedy disposal on grounds of convenience and social order. Pandharinadh Sakharam Thuve Vs. Surekha Pandharinadh Thuve, 1999 Cr.L.J 2919 (BOM). It is to be borne in mind that a petition filed under Section 125 Cr.P.C is not a complaint and the person arrayed as the opposite party is not an accused. Following the decision of the Supreme Court in AIR 1963 SC 1521, which held that instant proceedings under 125 Cr.P.C is a proceedings of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceedings of this nature, provided, sufficient grounds are shown. SK.Alauddin Vs. Khadizebb, 1991 Cr.L.J 2035.
Hindu Law Text enjoins upon the husband a mandatory duty to maintain his wife. The duty to maintain is dehors his possession of any property. A decree for maintenance creates a charge on his property. IN Raghavan Vs. Nagammal (AIR 1979 Mad 200) the High Court of Madras held that an order of maintenance, in term of Section 39 of the Transfer of property Act, creates a charge on the property Act. This principle was extended to an order passed under Section 125 Cr.P.C. in Diwakaran Vs. Barghavy Chellamma (1985 (2) DMC 486).
Apart From the above, Section 125 (3) of the Cr. P.C. r/w Section 128 of the Cr.P.C. empowers the Magistrate to enforce the execution in case of default by the person ordered to pay maintenance. Section 51 of the C.P,.C. can also be utilised for enforcing the order of maintenance.
Validity of Marriage
Validity of the marriage for the purpose of summary proceedings under Section 125 Cr.P.C is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of a marriage in such proceedings is not as strict as is required in a trial of offences under Section 494 IPC. If the claimant in proceedings under Section 125 of The Code succeeds in showing that she and the respondent have lived together as husband and wife the Court can presume that they are legally wedded spouses, and in such a situation the party who denies the marital status can rebut the presumption. Undisputedly marriage procedure followed in the temple, that too, in the presence of the idol of Lord Jaganath, which is worshiped by both the parties is considered to be valid. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe in to whether the said procedure was complete as per the Hindu rites in the proceedings under Section 125 Cr.P.C. Dwarika Prasad Satpathi Vs. Bityut Prava Dixit, (1999) 7 SCC 675 = 1999 (4) CRIMES 206 = 2000 Cr.L.J 1, See also Raju Vs. Pushpa Devi, 1999 Cr.L.J 2294.
The High Court of Bombay in K.M. Vyas Vs. R.K.Vyas (AIR 1999 Bom 127) held that the second wife is entitled to get maintenance under Section 24 of the Hindu Marriage Act even if the Second Marriage of the husband is void. In Devinder Singh Vs. Jaspal Kaur (1999 (1) MDM (535) the Punjab and Hariyana High Court held that the Right to claim maintenance under Section 25 of the Hindu Marriage Act is not defeated even where the marriage is dissolved by a Decree of Nullity. In Malika Vs. P.Kulandai (2001 (1) DMC 354) the court held that when the husband contracted the Second marriage by suppressing the fact of the first marriage, the wife and child are entitled to maintenance under Section 125 of the Cr.P.C.
Recent Trends:-
The Apex Court in Komalam Amma Vs. Kumarapillai (2008(14)SCC 345) held that the Hindu Wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence,if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or other just cause she is compelled to live apart from him. Right to Residence is part and parcel of wife's right to maintenance. The Right to Maintenance cannot be defeated by the husband executing a will to defeat such right..... For the purpose of maintenance the term "Wife" includes Divorced Wife.
The said court in Sipra Bhattacharyya's case (2009 (4) SCC 366), has held that the tiral court is duty bound to dispose of the Appliction for maintenance before the suit for Divorce is decided and that too within a time frame. In Rajesh Varman's case (2009 (1) SCC 398) the said court held that the term maintenance and support are comprehensive in nature and of wide amplitude and they would take within their sweep medical expenses. However, in Vimalaben Ajithbai Patel's case (2008 (4)
SCC 649) the court held that the mother-in-law cannot be fastened with any legal liability to maintain her daughterin- law from her own property or otherwise. A wife is only entitled to maintenance from her husband.
The recent trend feathering the concept of "live-in" and same sex relationships has created the need to extend maintenance in such relationship also. In Western Countries unmarried relationships and same sex relationships have been recognized by statutes and judicial notice has been taken by courts. The dependent partner in such relationship have been held entitled to support which is termed as "Palimony". The said concept of unmarried relationship is gaining momentum amongst the youth in India also. Consequently, it would be essential to protect the dependent partner if the relationship is broken.

Divorce under Muslim Law



Marriage or "Nikah" in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the "Nikah" Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.
There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have sexual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery.
The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations, impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.

Divorce in Islam: Lal Mohd
Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in Islam.
After solemnization of marriage between parties, if some problems arise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq.

The main points in his article were:
Talaq and divorce are strongly condemned within Islam.
In case of difficulties within a marriage that the husband and wife cannot solve by themselves, each shall appoint an arbitrator or conciliator to resolve the matter.
( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation."
TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended.
Caliph Umer legitimized this form of divorce as an emergency measure.
Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still permits it." 1 In all such countries arbitration councils and judicial interventions have been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile the couple. When all efforts fail, the matter is referred for investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the above discussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.

Divorce by Mutual Consent





In India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce. However, socio-economic changes complemented by legal reforms in the last half a century, have enabled partners, especially women, to opt out of unequal and abusive marriages.
The wave of globalization in the nineties ushered in further changes in the Indian social institutions, especially in urban areas. Couples living and working in cities and metros, were exposed to more economic and relationship options, which prompted them to break out of unsatisfactory or unequal marriages. However, the divorce procedure in India continues to be one of the most protracted in the world, especially in cases where either party contests the divorce. Following, is a brief guide to the procedure of filing a divorce, as well as associated matters like child custody, alimony demands and divorcing a non-resident Indian.
Divorce under various acts
Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.
Divorce by Mutual Consent
Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a "no-fault divorce" under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.
Procedure for Filing for Divorce
The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or "streedhan" and litigation expenses.
However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.
However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:
  • Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.
  • Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.
  • Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former.
  • Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner.
  • Insanity or suffering from incurable disease by the spouse of the petitioner.
The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.
After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:
  • Income tax statements for the last 2-3 years
  • Details of the petitioner's profession and present remuneration
  • Information related to family background of the petitioner
  • Details of properties and other assets owned by the petitioner
Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.
After the first petition for divorce has been filed, the petitioner can sign a "vakalatnama" is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.
Alimony
A divorce is not just a dissolving of a personal relationship. Since marriage is a social institution, its dissolution has far-reaching consequences on the whole family. And these consequences are both emotional and financial. The worst sufferers of divorce are women, who are not only find themselves bereft of the means to acquire basic necessities like food, clothing and shelter, but are also left to take care of the children from a broken marriage. To protect their interests, the Indian legal system has consistently tried to better the financial situation of women, by provisions of alimony.
Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce. Alimony is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. However, due to the concept of equality of the sexes and with increasingly economic independence of women, alimony can now be sought by either spouse, depending on the particular financial condition of each. Some of the factors which determine whether alimony is to be paid, how much and for how long are:
Current financial support. Alimony is generally not granted by the court to the seeking party if the latter is already receiving financial support, during the time of the divorce.
Duration of marriage. The quantum and duration of alimony depends on how long the couple had been married before filing for divorce. Spouses who have been married for more than ten years, for instance, may be granted lifelong alimony.
Age of the recipient. Often the alimony granted to a younger spouse is for a shorter tenure, if the court thinks that the recipient can eventually become financially sound, with career advancement.
Financial position of either spouse. If the divorce takes place between two parties with unequal resources, the higher-earning spouse is generally asked to pay a substantial amount as alimony, in order to equalize the financial condition of the spouses. Similarly, a spouse with very profitable financial prospects is usually asked to cough up the alimony amount.
Health of spouse. If the seeker is in poor health, the court usually orders the other spouse to pay a high alimony to take care of the former's healthcare expenses.
Respective marriage laws. The terms and conditions of alimony, also vary from one personal law to another. Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married.
Maintenance by public body. In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body. 
While in the Western countries, alimony is an obligation ordered by the court to the financially stronger spouse, in India it is not yet an absolute right of the seeker. Rather the awarding of alimony, its amount and duration are determined by the financial position and family circumstances of the respective spouses. 
Child custody. Another aspect of divorce which leads to a great deal of emotional trauma and legal complication, is child custody. This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.
Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent, the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested.
NRI Divorce
While the procedure of getting a divorce in India is protracted enough, the situation gets further complicated if the marriage involves one or both non-resident Indians. The Indian legal system does not have very exhaustive divorce laws for marriages with or among non-resident Indians. However if a couple has got married in India under the Hindu Marriage Act 1955, the partners can file for divorce by mutual consent, like other Indians residing in the country. If both the spouses are residing in a foreign country, Indian law will recognize their divorce according to the laws of that country, only if it is by mutual consent. Even when the divorce is taking place abroad, it is always better to hire a lawyer who is aware of Indian divorce laws relating to non-resident Indians.
The whole procedure of going through a divorce in India is fraught with emotional, social and legal complexities. Besides being an exceedingly traumatic personal experience, partners, especially women, going through divorce face discrimination from their communities and even their families. Moreover, the long drawn-out litigation creates pressure on already stretched resources. However, there are several state agencies as well non-government organizations, which offer legal and emotional counselling and sometimes even financial aid, for spouses going through divorce. The important thing is to keep one's courage through it all and continue to fight for one's own well being.

6 months cooling period not to come in way of divorce by mutual consent: SC
Agencies : New Delhi, Sat Aug 25 2012, 21:39 hrs
The Supreme Court has held the six months cooling period should not come in the way for allowing the plea for dissolution of marriage by mutual consent when it has broken down irretrievably.
Agreeing that "technicality should be tampered by pragmatism, if substantive justice was to be done to the parties," a bench comprising justices Altamas Kabir and J Chelameswar said there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation.
"We have carefully considered the submissions made on behalf of the parties and have also considered our earlier decision. It is no doubt true that the Legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage.
"It is also true that the intention of the Legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation," the bench said.
The bench allowed the appeal of a couple, the woman based in Delhi and her husband in Canada, against the order of the lower court which on April 13 posted the hearing of their joint petition on October 15 for the purpose of second motion, as contemplated under Section 13-B of the Hindu Marriage Act which deals with divorce by mutual consent.

How To Get A Divorce In India






There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:
  • Divorce by Mutual Consent
  • Contested Divorce
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce
As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
ANNULMENT OF MARRIAGE:
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
VOID MARRIAGE:
There are certain form of marriages which are null and void despite the performance /solemnization of the same. Marriage is void under following circumstances:-
a) neither party has a spouse living at the time of the marriage

b) 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;


c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible with in two to four weeks.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
Maintenance
Maintenance flows from the concept of marriage. The question of maintenance is not dependent upon the divorce proceedings. Even before the case of divorce is filed, Indian Law provides the right to claim maintenance through the medium of the Court.
If we look at the entire gamut of Indian matrimonial law, we will find that the provisions for maintenance are available in following statues in case of Hindu Marriage:
  • Section 125 Criminal Procedure Code( Cr.P.C.)
  • Section 20 of Protection of women from Domestic Violence
  • Section 18 of Hindu Adoption and Maintenance Act
  • Section 24 of Hindu Marriage Act
  • Section 25 of Hindu Marriage Act
A general conjoint reading of the aforesaid provision makes it amply clear that the objective of law is to provide maintenance to the Spouse who does not have sufficient means to maintain himself/herself by the one who has capacity and means to provide maintenance. The object is salutary and the scheme appreciating.
A cursory look at the past practices and belief is a clear cut indication of the fact that it is the man who has been bestowed with the power, capacity and capability to look after the family. Womanhood is expected to take care of the domestic chores while men were held responsible for all financial support to the family.
Law is expected to change with time. So, when women starting assuming proactive roles in the society, then maintenance law in India took care of this fact and brought the working men and women in the same pedestal. In number of cases, it was held that Husband is entitled to maintenance if he does not have sufficient means and the wife is working.
While awarding maintenance, Court considers following factors among other:
  • Status of the husband and wife.
  • Salary/ Income of the husband
  • Salary /Income of the wife
  • Liabilities of husband, if any
  • Dependants
  • Reasonable wants of claimant.
  • Financial Background
  • Movable & Immovable properties of the Husband
Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income.
It will be a no defence in case of maintenance that other spouse is at fault or marriage is solemnised on the strength of fraud, the other claimant wilfully and without reasonable cause left the society of the spouse, etc. Court awards maintenance on the strength of marriage and conduct of the party could play a part in determining the quantum of maintenance. Thus, as a matter of general rule maintenance is awarded.
The Job of Divorce/maintenance lawyer as well as the Court is to have an award of reasonable maintenance depending upon the status of the parties.
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The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.

Let us have a look at the various grounds for divorce in India.

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

  • If the husband has indulged in rape, bestiality and sodomy.
  • If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
  • A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  • If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

Based on the Dissolution of Muslim Marriage act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

  • The husband’s whereabouts are unknown for a period of four years.
  • The husband has failed to provide maintenance to the wife for at least two years.
  • The husband has been under imprisonment for seven or more years.
  • The husband is unable to meet the marital obligations.
  • If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
  • The husband indulges in acts of cruelty.

Let us check out the following grounds of divorce mentioned under the Indian Divorce Act, 1869.

  • Adultery
  • Conversion to another religion
  • One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.
  • Not been seen or heard alive for the period of seven or more years.
  • Failure in observing the restitution of conjugal rights for at least two years.
  • Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
  • Wife can file a divorce based on the grounds of rape, sodomy and bestiality.

The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.

  • Continuous absence of seven years.
  • Non-consummation of marriage within one year.
  • Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
  • Pregnancy by some other man provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
  • Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
  • Act of cruelty
  • Suffering from venereal disease or forcing the wife into prostitution.
  • Sentenced to prison for seven years or more
  • Desertion for two or more years
  • Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.

HINDU MARRIAGE ACT


Update on 18th March,2010
CHAPTER I
PRELIMINARY
  1. Short title and extent.-(1) This Act may be called THE HINDU MARRIAGE ACT, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends, who are outside the said territories.
Objects and Reasons:- The words “domiciled in India” have been changed to “domiciled in the territories to which this act extends” to make the position clear, so that the law will be applicable to all Hindus with such domicile, who may, for the time being, be outside the said territories-whether they be in Jammu and Kashmir or outside India altogether.
  1. Application of Act.- (1) This Act applies-
  1. 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;
  2. to any person who is a Buddhist, Jaina or sikh by religion; and
  3. to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is
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1. The Act has been extended to (1) Dadra and Nagar Haveli by regulation 6 of 1963 (w.e.f.1-7-1965) and (2) Pondicherry by regulation 7 of 1963 (w.e.f.1-10-1963); Sikkim by Noti.No.S.O.311(E), dated 28-4-1989 (w.e.f.1-5-1989).
     This Act has also been applied to the State of Jammu & Kashmir by the J & K. Hindu Marriage Act, 1955 (J & K. Act 8 of 1955) subject to certain modifications. Now the 1955 Act has been repealed by J & K. Act 4 of 1980. Hence, this Act does not apply to J & K.
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Proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation.-  The following persons are Hindua, Buddhists, Jainas or Sikhs by religion, as the case may be:-
  1. any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas of Sikh by religion;
  2. any child, legitimate or illegitimate, one of whose parents is a  Hindu, Buddhist, Jaina of 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
  3. any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazzette, 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.
State Amendment-[Pondicherry].- In its application to the Union territory of Pondicherry, in S.2, after sub-S.(2), insert the following sub-section, namely.-
“(2-A) Notwithstanding anything contained in sub-section (1), nothing contained in this act shall apply to the Renoncants of the Union territory of Pondicherry.”- See Regn. 7 of 1963, S.2(w.e.f.1-10-1963).
Update on 19th March,2010
COMMENTS
Where both the parties to the petition were two Tribals, who otherwise profess Hinduism, held, their marriage being out of the purview of Hi ndu Marriage Act, 1955 in light of section 2(2) of the Act were governed only by their Santal  Customs and usage: Surajmani Stell Kujur V. Durge Charan Hansdah A.I.R. 2001 S.C.938.
In view of S.19 read Alongwith Ss. 1 and 2, the Hindu Marriage Act, 1955 applies to all Hindus who got married according to Hindu rites, irrespective of domicile and / or residence: Nitaben v. Dhirendra Chandrakanth Sukhla (1984) 1 D.M.C. 252; (1984-1) 25 Guj. L.R. 276.
  1. Definitions.- In this Act, unless the context otherwise requires,-

  1. the expression “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
  1. “district court” means in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other Civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

Objects and Reasons.- The definition of “district court” has been modified to make it clear that where there is a City Civil Court, it is that Court alone which shall have jurisdiction under this law. By another amendment, the power to notify inferior Courts as districts courts for the purposes of this law is a sought to be vested in the State Government instead of in the Central Government, as originally proposed.
  1. “full blood” and :half blood” – two persons are said to be related to each other by full blood when they are sescended from a common ancestor by the same wife and by half blood when they are sescended from a common ancestor but by different wives;
  2. “uterine blood” – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;
   Explanation.- In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;
  1. “prescribed” means prescribed by rules made under this Act,
  2. (1) “sapinda relationship” with reference t any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii)  two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
  1. “degrees of prohibited relationship” – two persons are said to be within the “degrees of prohibited relationship”-
(i) if one is a lineal ascendant of the other; or
      (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
      (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
      (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
Explanation:- For the purposes of clause (f) and (g), relationship includes-
(i) relationship by half or uterine blood as well as by full blood;
      (ii) illegitimate blood relationship as well as legitimate;
      (iii) relationship be adoption as well as by blood;
and all terms of relationship in those clauses shall be construed accordingly.
Objects and reasons.- The definition of “prohibited degrees” and “sapinda relationship” are on the lines of the Rau committee’s Report. As has been pointed out by that committee, the strict rule prohibiting marriages within the limits of sapinda relationships defined in the Smritis (seven and five degrees) have been considerably relaxed by custom and the limits have, therefore, been reduced to five and three degrees, as is generally recognized now. A definition of “prohibited degrees” is also necessary because there is the greatest diversity among Hindus in different parts of India as to what are the prohibited degrees for marriage. The usual rule is that the parties should not be sapindas of each other. Not only, however, has the sapinda relationship been interpreted in different ways by different authors, but the rule itself has been subjected to modification by custom. Some kind of limit has, therefore, to be provided to prevent incestuous marriages, subject to judicially recognized customs or well-established customs which satisfy the requirements of the definition of that expression.
Joint Committee Report:- The definition of prohibited degrees in sub-clause (g) has been expanded so as to include the brother’s widow, the paternal or maternal uncle’s widow, the widow of the grand-father’s or grand-mother’s brother and the children of brother and sister. In the opinion of the Joint Committee, marriage within such relationships should be discouraged; but wherever there is a custom to the contrary, ample recognition of such custom is contained in clause.

Update to be 20th March, 2010
COMMENTS
The customs/usage is to be tested on the touchstone of the definition of custom/usage. As per reading of the definition it is to be found that there are five ingredients of the aforesaid definition, namely (i) it has been continuously and uniformly observed for a long time; (ii) it has obtained the force of law among Hindus in any local area, tribe, community, group or family; (iii) it is certain; (iv) it is not unreasonable or opposed to public policy; and (v) in case of a rule applicable only to a family, it has not been discontinued by the family: Sharad Dutt v. Kiran (1997) 2 D.M.C. 643: (1997) 69 del.L.T. 510.
  1. Overriding effect of Act:-  Save as otherwise expressly provided in this Act,-

  1. any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provisions is made in this Act;
  2. any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
COMMENTS
In view of sub-S. (2) of S. 29, overriding effect of S.4(a) will not operate subject to, of course, the existence of custom. Thus, where customary divorce is proved to be in existence in any caste, the custom is saved. G.Thimma Reddy v. Special Tahsildar Land Reforms, Adoni II (1993) 1 An W.R.2: (1992) 3 An. L.T.733.
CHAPTER II
HINDU MARRIAGES
  1. Conditions for a Hindu marriage:- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely;-
    1. neither party has a spouse living at the time of the marriage;
    2. at the time of the marriage, neither party-
  1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
  2. 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 unit for marriage and the procreation of children; or
  3. has been subject to recurrent attacks of insanity;
    1. the bridegroom has completed the age of (twenty-one years) and the bride, the age of (eighteen years) at the time of the marriage;
    2. in 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;
    3. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
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2. Substituted by Act 68 of 1976, S.2, for Cl. (ii) (w.e.f.25-5-1976).
3. The words “or epilepsy” omitted by Act 39 of 1999, S.2 (w.e.f. 29-12-1999)
4. Substituted by Act 2 of 1978, S.6 and /sch., for “eighteen years” and “fifteen years”, respectively (w.e.f.1-10-1978).
5. Cl. (vi) omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
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Objects and Reasons:-  This section prescribed the essential requisites for a Hindu marriage, sub-clause (i) of which introduces monogamy. Sub-clauses (iv) and (v) require that the parties should not be within the degrees of prohibited relationship or be sapindas of each other unless in either case there is a custom or usage modifying that rule.
In sub-clause (vi), the amendment will ensure that until the bride attains majority, no marriage takes place without the consent of the guardian-in-marriage. Under the original Bill, consent of the guardian was required only if the girl was between the ages of 15 and 16, and once she attained her 16th year she could dispense with the consent of her guardian although she was still a minor.
COMMENTS
The concept of Hindu marriage under the Act is still a sacrament as envisaged under the Hindu Law. It cannot, therefore, be contracted by mere consent of the parties to it. A marriage to be valid under the Act must satisfy the conditions laid down in S.5 and should be solemnized as specified in S.7: Ravinder Kumar v. Kamal Kanta I.L.R (1973) Bom. 1220; 1973 Mah.L.J.310.
Hindu marriage if is to be solemnized under S.5 then both the parties of such marriage must be Hindua. As seen from sub-S, (3) of S.2 a person though not a Hindu by religion has to be regarded as Hindu and the Hindu Marriage Act applies to him because of sub-Ss. (1) and (2) of S.2 thereof. However, Hindu marriage could be solemnized in accordance with the customary rights and ceremonies of either party thereto as is envisaged in S.7; Jacintha Kamath v. K.Padmanabha Kamath A.I.R. 1992 Karn. 372 (1992) 2 Hindu L.R.114(D.B.)
A wife whose marriage has been declared null and void ipso jure under s.11 as envisaged under S.5(i), (iv), held, ceases to be a wife within the meaning of S.18 of the Hindu Adoptions and Maintenance act, 1956; she is not entitled to claim maintenance under the latter provision: Basappa v. Siddagangamma (1992) 2 Karn. L.J.357:I.L.R. (1992) Karn.1798.
The expression “incurably of sound mind”, held, cannot be so widely interpreted as to cover the feeble minded or possessors of weak or dull intellects who are capable of understanding the nature and consequences of their acts or controlling themselves and their affairs and reactions in the normal way; S.5(ii) lay down that neither party to a marriage must be incapable of giving valid consent due to unsoundness of mind or should have been suffering from mental disorder; S.12(i)(b) enables the other party to avoid the marriage contravening such a condition; S.13(1)(iii) provides for divorce where the other party has, subsequent to the marriage, developed incurable unsoundness of mind: Parvati Mishra v. Jagadananda Mishra (1995) 1 D.M.C. 77 (Madh.Pra.).
The marriages solemnized in violation of S.5(iii) remains unaffected; neither the marriage is void nor voidable: Rabindra Prasad v. Sita Devi A.I.R. 1986 Pat.128.
  1. Guardianship in marriage:- [Omitted by the child marriage Restraint (Amendment) Act, 1978 (2 of 1978), section 6 and Schedule (w.e.f.1-10-1978).]
  2. 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 scared fire), the marriage becomes complete and binding when the seventh step is taken.
COMMENTS
A marriage is not proved unless the essential ceremonies required for its solemnization are proved to have been performed: Kanwal ram v. Himachal Pradesh Administration A.I.R. 1966 S.C.614.
      A valid marriage can be performed between a Sikh and a Hindu by anand karaj, or by saptapadi: Aswani Kumar v. asha Rani (1992) 1 Hindu L.R. 307 (P.&.H.)
Section 7-A
State Amendments-[Pondicherry]:- In its application to the Union territory of Pondicherry, after S.7, insert the following section, namely:-
“7-A. Special provision regarding suyamariythai and seethiruththa marriages.- (1) This section shall apply to any marriage between any two Hindus, whether called suyamariythai marriage or  seethiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons-
  1. by each party to the marriage declaring in any language (which is understood by the parties and by at least two persons in whose presence the marriage is solemnized), that each takes the other to be his wife or, as the case may be, her husband; or
  2. by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
  3. by the tying of the thali.
(2)(a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnized after the commencement of the Hindu Marriage (Pondicherry Amendment) Act, 1971, shall be good and valid in law.
(b)  Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Pondicherry Amendment) Act, 1971, or in any other in force immediately before such commencement or in any judgement, decree or order of any Court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to-
  1. render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Pondicherry Amendment) act, 1971,-
(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another, or
  1. render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or
  2. render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto:

Provided that nothing contained in the sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.
(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to their legitimate child:
            Provided that in case falling under sub-clause (i) or, sub-clause(ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii)-Pondicherry Act 14 of 1971, S.2 (w.e.f.9-7-1971).
[Tamil Nadu]:- In its application to the State of Tamil Nadu, after S.7, insert the following section, namely:-
“7-A. Special provision regarding suyamariythai and seethiruththa marriages.- (1) This section shall apply to any marriage between any two Hindus, whether called suyamariythai marriage or  seethiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons-
(a) by each party to the marriage declaring in any language (which is understood by the parties and by at least two persons in whose presence the marriage is solemnized), that each takes the other to be his wife or, as the case may be, her husband; or
(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
( c )by the tying of the thali.
(2)(a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.
(b)  Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other in force immediately before such commencement or in any judgement, decree or order of any Court, but subject to sub-section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage respectively, good and valid in law.
(3) Nothing contained in this section shall be deemed to-
  1. render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) act, 1967,-
(i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another, or
  1. render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or

  1. render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto:
Provided that nothing contained in the sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.
(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to their legitimate child:
            Provided that in case falling under sub-clause (i) or, sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii)-Pondicherry Act 21 of 1967, S.2 (w.e.f.20-01-1968).
  1. Registration of Hindu marriages:- (1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

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6. see the Hindu Marriage (Mysore) Rules, 1966, the Hindu Marriage Registration (Tamil Nadu) Rules, 1967; the Madhya Pradesh Hindu Marriage (Registration) Rules, 1956; the Pondicherry Hindu Marriage (Registration) Rules, 1969 and the Hindu Marriage Registration (Sikkim) Rules, 1991.
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(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment 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.
COMMENTS
Merely because a marriage between the parties has been registered under S.8, held, that does not ipso facto imply the existence of a complete and lawful marriage between the parties: Krishan Paul v. Ashok Kumar Pal 1982 Hindu L.R.478: (1981-1982) 86 Cal.W.N.1088.
CHAPTER III
RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION
  1. Restitution of conjugal rights:- 7[*] 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.
8[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.]
9[***]
Objects and Reasons-Clause 3:- Sub-clause (a) seeks to insert a new Explanation in sub-section (1) of section 9 to clarify that the burden of proving reasonable excuse for withdrawing from the society shall be on the person who has withdrawn from the society of other.
Sub-clause (b) seeks to omit sub-section (2) of section 9 as it has the unintended effect of restricting the scope of defense of reasonable excuse available to the respondent.
COMMENTS
S.9 is not violative of Art. 19(1)(g) of the Constitution: Sumitra Devi v. Narender Singh (1993-1) 103 Punj.L.R.422(F.B.).
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7. The brackets and figure “(1)” omitted by Act 68 of 1976, S.3 (w.e.f.27-5-1976).
8. Added by Act 68 of 1976, S.3 (w.e.f.27-5-1976).
9. Sub-S. (2) Omitted by Act 68 of 1976, S.3(w.e.f.27-5-1976).
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When the marriage is not one under the Hindu marriage Act, S.9 of the Act has no application: Chitralekha Shibu Kunju v. Shibu Kunju (1998) 2 D.M.C. 454 (Born) (D.B.).
The words “reasonable excuse” should be understood in their ordinary meaning. It would be sufficient if the court is satisfied that there was reasonable cause for the objecting spouse to withdraw from the society of the petitioning spouse: Krishnamurthy v. Shymanthakamani (1976) 2 Karn.L.J. 361:1977 Hindu L.R.163 (D.B.).
When a petition under S.9 of the Hindu Marriage Act, 1955 is pending before the Family Court, S.24 of the 1955 Act can be invoked automatically for grant of interim maintenance, it is not necessary that there should be a separate provision for this purpose in the Family Courts Act, 1984: Vedantham v. Virmala (1990-1) 105 Mad.L.W.580: (1991)2 Hindu L.R.608.
The execution proceedings for a decree under S.9 conceives of only one contingency that if the decree is not obeyed, then the property of the opposite party can be attached; no force can be used to get the lady to the conjugal house: Vijay Kumar v. Neelam Rani A.I.R.2004 Raj. 256.
  1. Judicial separation:- 10[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying fr 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.
Objects and reasons:- Section 10 deals with judicial separation and the main consequences which flow from a decree for judicial separation. A decree for judicial separation does not have the effect of terminating the marriage.
Joint Committee Report:-In considering this and the following clauses, the Joint Committee have taken into account the language employed and the scheme adopted in the Special Marriage Act, 1954, recently passed by the Parliament. In view, however, of the fact that Hindu Law has so far recognized polygamy, the Joint Committee feel that the approach to the problems of judicial separation and divorce need not necessarily be the same in both the cases and that it is neither necessary nor desirable in the present case that grounds for judicial separation and grounds for divorce should be identical as in the Special Marriage Act, 1954. Moreover, having regard to the high ideals which the Hindu Community has always lived up to, divorce should not be made easy and the law should be so framed as to provide the maximum opportunities for mutual adjustment. The scheme of this Bill is, therefore, slightly different. Apart from the changes in the language employed, the major changes made in clause 10 are,-
  1. “cruelty” is now a self-contained definition;
  2. One act of infidelity to the marriage tie now furnishes a ground for judicial separation instead of adultery as proposed in the original Bill; and
  3. The definition of “desertion” has been widened so as expressly to include willful neglect of the respondent.

COMMENTS
Judicial separation does not put an end to the marital status of the party: M.Narasimha Reddy v. M.Boosamma A.I.R. 1976. Andh. Pra. 77 (D.B.).
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10. Substituted by Act 68 of 1976, S.4, for sub-S. (1) (w.e.f.27-5-1976).
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If the Court comes to the conclusion that there are sufficient grounds to grant judicial separation, it shall grant judicial separation. If it finds that the grounds are not sufficient to grant judicial separation, it has to dismiss the petition for judicial separation. It is not legal for any Court to grant a decree for judicial separation only for a period of nine months or for any specified period: P.Kalyanasundaram v. K.Paquialatchamy A.I.R.2003 Mad.43 (D.B.).           
S. 13-A contemplates giving an alternative relief only when the grounds mentioned in S.10 exist. Thus, where none of the grounds alleged for obtaining divorce had been established, held, no decree for judicial separation could be granted: Manthena Siromani v. M.Venkateswara Raju (1988) 2 Hindu L.R. 209 (Andh.Pra.) (D.B.).

CHAPTER IV
NULLITY OF MARRIAGE AND DIVORCE
  1. Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, 11[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified I clauses (i), (iv) and (v) of section 5.

Objects and reasons:- Section 11 and 12 deal with cases where a marriage is null and void and cases where a marriage is voidable at the opinion of either party to the marriage. Until so avoided a voidable marriage should be regarded as good for all purposes. Where a marriage is a bigamous marriage or contravenes the rule relating to prohibited degrees, the marriage is regarded as null and void from the very beginning. In other cases the marriage is rendered voidable at the option of the parties as in many other systems of law.
COMMENTS
The marriage covered by S.11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. A marriage in contravention of S.11 must be treated as null and void from its very inception. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav A.I.R. 1988 S.C.644.
A wife whose marriage has been declared null and void ipso jure under S.11 an envisaged under Cl. (i), (iv) of Cl. (v) of S.5, held,ceases to be a wife within the meaning of S.18 of the Hindu Adoption and Maintenance Act, 1956; she is not entitled to claim maintenance under the latter provision: Basappa v. siddagangamma (1992) 2 Karn.L.J. 357: I.L.R. (1992) Karn. 1798.
  1. Voidable marriages:- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

12[(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 guardian in marriage of the petitioner 13[was required under section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978], the consent of such guardian was obtained by force
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11. Inserted by Act 68 of 1976, S.5 (w.e.f.27-5-1976)
12. Substituted by Act 68 of 1976, S.6 for Cl. (a) (w.e.f.27-5-1976).
13. Substituted by Act 2 of 1978, S.6 and Sch., for “is required under section 5” (w.e.f.1-10-1978).
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14[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
  1. 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;
            (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 the 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 15 [the said ground].
COMMENTS
The bar contained in S.14 regarding filing of petition before one year from date of marriage does not apply to the petition for annulment of marriage: Smritikana Bag v. Dilip Kumar Bag A.I.R. 1982 Cal.547.
“Impotent” means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary and complete intercourse. However, the degree of sexual satisfaction obtained by the parties is irrelevant: Gayatri Bai v. Pradeep Kumar chaurasia (1998) 2 D.M.C. 211 (Madh.Pra.).
The word “fraud” within the meaning of S.12(1)(c) is not each and every misrepresentation or concealment, which may be fraudulent. The word “fraud” in the section has a limited meaning. In the section “fraud” refers to and refers only to the consent of the petitioner to the solemnization of the marriage. Therefore, (1) fraud within the meaning of S.12(1)(c) means either  (a) deception as to the identity of the other party to the marriage, or (b) deception as to the nature of the ceremonies being performed; (2) where consent is given with the intention to marry the other party and with the knowledge that what is being solemnized is marriage, an objection to the validity of the marriage on the ground of any fraudulent misrepresentation  or concealment is not tenable. Thus, mere concealment of the fact that the husband had been once married to another woman could not be a ground for annulment of marriage under S.12(1)(c): Rajaram Vishwakarma v. Deepabai A.I.R. 1974 Madh. Pra. 52.
  1. Divorce:- (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-
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14. Substituted by Act 68 of 1976, S.6, for “or fraud” (w.e.f.27-5-1976).
15. Substituted by Act 68 of 1976, S.6, for “the grounds for a decree” (w.e.f.27-5-1976).
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  [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuo’s period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mine, 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,-
  1. 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;
  2. the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(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;
[Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
[1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
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16. Substituted by Act 68 of 1976, S.7, for Cl. (i) (w.e.f.27-5-1976)
17. Substituted by Act 68 of 1976, S.7, for Cl. (iii) (w.e.f.27-5-1976)
18. The words “for a period of not less than three years immediately preceding the presentation of the petition” omitted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
19. The word “or” omitted by Act 44 of 1964, S.2.
20. Inserted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
21. Cls. (viii) and (ix) omitted by Act 44 of 1964, S.2.
22. Inserted by Act 44 of 1964, S.2.
23. Substituted by Act 68 of 1976, S.7, for “two years” (w.e.f.27-5-1976).
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(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.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any marriage 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:
            Provide that in either case the other wife is alive at the time of the presentation of the petition; or
            (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or [bestiality; or]
            [(iii) that in a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of the Criminal Procedure, 1898 (5 of 1898)), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
            (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.]
            Object and Reasons:- Section 13 specifies the grounds on which a decree for divorce may be obtained by either party to the marriage. In particular, a decree of divorce may be obtained if there is no reconciliation between the parties within a specified period after the passing of a decree for judicial separation or if a decree for restitution of conjugal rights is not complied with within a special period.
            Section 13(1)(ii), read with section 23(1)(a).- A change in religion is not inconsistent with the continuance of conjugal love and it should, therefore, not be permissible for a party to the marriage to get a divorce by changing his or her religion. The right to get a divorce under this law is, therefore, given to the party who continues to be a Hindu….. a somewhat similar right is given to a person changing his religion to Christianity under the converts’ Marriage Dissolution Act, 1866.
            State Amendment-[Uttar Pradesh].- In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in S.13-
            (i) in sub-S. (1), after Cl. (i), insert (and shall be deemed always to have been inserted) the following, namely:-
            “(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, or”, and
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24. Substituted by Act 68 of 1976, S.7, for “two years” (w.e.f.27-5-1976).
25. Substituted by Act 68 of 1976, S.7, for “bestiality” (w.e.f.27-5-1976).
26. Inserted by Act 68 of 1976, S.7 (w.e.f.27-5-1976).
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(ii) for Cl. (viii) (since repealed,) substitute (and shall be deemed always to have been so substituted) the following, namely:-
“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and-
  1. a period of two years has elapsed since the passing of such decree, or
  2. the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”- Uttar Pradesh Act 13 of 1962, S.2 (w.e.f.7-11-1962).
COMMENTS
Irretrievable break down of marriage is not a ground recognized by law for grant of decree of divorce: Sudhir Singhal v. Neeta Singhal A.I.R.2001 Del.116.
The expression “cruelty” as envisaged under S.13 clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes his being treated with cruelty whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision: Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.
Mental cruelty in S.13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. V.Bhagat v. D.Bhagat (Mrs.) A.I.R. 1994 S.C.710: (1994) S.C.C. 337; Neelu Kohli v. Naveen Kohli A.I.R.2004 All.1.
Leveling of disgusting allegations of unchastity and indecent familiarity of wife with different  persons outside wedlock and her having extra-marital relations with other persons, themselves will amount to cruelty: Jai Dayal v. Shakunthal Devi A.I.R.2004 Del.39.
The fact that wife was pregnant from some other person at the time of marriage would amount to cruelty and mental agony to the husband: Pawan Kumar v. Mukesh Kumari A.I.R. 2001 Raj.1.
A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act: Sarla Mudgal President, Kalyani v. Union of India 1995 D.N.J 252: (1995) 2 D.M.C. 351 (S.C.).
Grounds of divorce are to be construed liberally: Reynold Rajamani v. Union of India A.I.R. 1982 S.C. 1261: (1982) 2 S.C.C. 474.
After the amendment of S.13 by the Marriage Laws (Amendment) Act, 1976, the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage: Sanjukta Padhan v. Laxminarayan Padhan A.I.R. 1991 Ori.39; Rajendra Agrawal v. Sharda Devi A.I.R.1993 Madh. Pra. 142; Gali Kondaiah v. Gali Ankamma A.I.R. 1988 Andh. Pra. 68 (D.B.).
The burden to prove the adultery is on the peson who seeks dissolution of marriage on the ground of adultery: A.Hemamalini v. A.Pankajanaban (1995) 1 D.M.C. 258: (1994) 2 Hindu L.R. 671 (Andh. Pra.) (D.B.).
It is quite possible that a particular conduct may amount to “cruelty” in one case but the same conduct necessarily may not amount to “cruelty” due to change of various factors, in different set of circumstances. Therefore, it is essential for the petitioner, who claims relief, to prove that a particular/part of conduct or behaviour resulted in “cruelty” to him. No prior assumptions can be made in such matters: Naval Kishore Somani v. Poonam Somani A.I.R. 1999 Andh. Pra. 1 (D.B.).
Even a single act of violence which is of grievous and inexcusable in nature satisfies the test of cruelty: Mohanan v. Thankamani (1995) 1 D.M.C. 327; (1995) 2 Hindu L.R. 174 (Ker.) (D.B.); Sulekha Bairagi v. Kamala Kanta Bairagi A.I.R. 1980 Cal. 370 (D.B.).
“cruelty” under the Act can be both mental and physical. The degree of “cruelty” necessary to claim a matrimonial relief has not been defined under the Act. It depends from case to case and the Legislature has also refrained from giving a comprehensive definition of the expression that may cover all cases. In order to claim divorce on the ground of cruelty, it may be shown that the other spouse has treated the complaining spouse with cruelty which may be physical mental: Praveen Mehta v. Inderjeet Mehta (2002) 5 S.S.C.C. 706; A.I.R.2002 S.C.2582. Besides mental cruelty is a state of mind and feeling of one of the spouses due to the behaviour or behavioural pattern of the other. It is a matter of inference to be drawn from the facts and circumstances of the case and proper approach requires the assessment of the cumulative effect of the attending facts, and circumstances as established from the facts and circumstances on record. Physical cruelty on the other hand consists of such acts which endanger a physical health of one of the parties to the marriage and includes the inflicting bodily injury or giving cause for such injuries: Savitri Pandey v. Preme Chandra (2002) 2 S.C.C. 73: A.I.R. 2002 S.C. 591; Neelam Kumari v. Gurnam Singh A.I.R. 2004 P. & H.9.
The decisions of various Courts in India including the Supreme Court lead to the conclusion that a decree for divorce in terms of S.13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may  behave strangely or oddly inappropriate and be progressive in deterioration in the level of work which may lead to a conclusion that he or she suffers from an illness of slow growing developing over the years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating short temper and somewhat erratic behaviour on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder: Sharda v. Dharmapal (2003) 4 S.C.C.493.
A matrimonial Court has the power to order a person to undergo medical test. Passing of such an order by the Court would not be in violation of the right to personal liberty under Art. 21. However, the court should exercise such a power if the applicant has a strong prima facie case ands there is sufficient material before the court. If despite the order of the Court the respondent refuses to submit himself to medical examination, the Court will be entitled to draw and adverse inference against him:  Sharda v. Dharmapal (2003) 4 S.C.C.493.
Desertion implies not only the factum of separation but also the intention to separate permanently and put an end to the matrimonial relationship and cohabitation; there can be no desertion without animus deserendi or if the husband himself is responsible for the wife living away from the husband or if the wife has sufficient reason to live away from the husband: Saroja v. Arumugam (1989-1) 103 Mad. L.W.116(1989) 1 Hindu L.R.528.
The onus of proving that the other spouse is of incurably unsound mind or is suffering from mental disorder, held, lies on the party alleging it; it must be proved by cogent and clear evidence: Parvati Mishra v. Jagadananda (1995) 1 D.M.C. 77 (Madh.Pra.).
For the success of a petition under S.13(2)(iv), the petitioner has to prove three things; (a) that her marriage was solemnized before she attained the age of 15 years; (b) that she repudiated the marriage after attaining the age of 18 years; and (c) that she repudiated the marriage before attaining the age of 18 years. Whether the marriage was consummated or not is immaterial and beside the point. It is also immaterial whether the repudiation was made before the Marriage Laws (Amendment) Act, 1976 came into force or thereafter. Even if the repudiation was made before coming into force of the Amending Act, the wife can take advantage of this provision in such a petition and can be granted a decree for divorce under S.13(2)(iv) of the Act: Raju v. Ratan (1988) 2 Hindu L.R.257(Raj.).
 [13-A. Alternate relief in divorce proceedings.- In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the Court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
COMMENTS
The Court is not competent to grant the relief of judicial separation under S.13-A, when the petitioner had prayed for relief under S.13(1)(ia) and (ib) but failed to prove: Vijayalakshmi Balasubramanian v. R.Balasubramaniam (1998) 1 D.M.C. 210 (Mad.) (D.B.).
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27. Ss.13-A and 13-B inserted by Act 68 of 1976, S.8 (w.e.f. 27-5-1976).
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13-B. Divorce 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, 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 that 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.]
COMMENTS
            A petition under S.13-B is not entertainable by the Appellate Court; it has to be filed in the original Court: N.Vijaya Raghavan v. K.Sharda A.I.R. 2001 Karn.300 (D.B.).
            No decree can be passed otherwise than under section 13-B for divorce on the basis of compromise: Munesh v. Anasuyamma A.I.R. 2001 Karn.355 (D.B.).
            A decree of divorce by mutual consent can be granted when and only when the Court is satisfied about (i) marriage having been solemnized between the parties; (ii) the parties have been living separately for more than a year before presenting the petition; (iii) they were not able to live together at the time of presenting the petition and continue to live apart; (iv) they had mutually agreed to dissolve the marriage before or at the time the petition was presented; and (v) the averments made in the petition are true and conditions under S.23 are fulfilled. Thus, the Court amongst other factors has to exclude the possibility of the consent of other party being obtained by force, fraud or undue influence, and also see through if there is any collusion: Krishna Khetarpal v. Satish Lal A.I.R. 1987 P. & H.19].
            There cannot be any written agreement between husband and wife for divorce contrary to the provisions contained in Hindu Marriage Act, both spouses being Hindus: Malayaiah v. G.S.Vasatha Lakshmi (1997) 2 D.M.C. 88 (Karn).
14. No petition for divorce to be presented within one year of marriage:- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, {unless at the date of the presentation of the petition one year has elapsed} since the date of the marriage:
            Provided tat 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
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28. Substituted by Act 68 of 1976, S.9, for “unless at the date of the presentation of the petition three years have elapsed” (w.e.f.27-5-1976).
29. Substituted by Act 68 of 1976, S.9, for “before three years have elapsed” (w.e.f.27-5-1976).
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the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the [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].
15. Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:
16. Legitimacy of children of void and viodable marriages:- (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, 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.
(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.]
COMMENTS
S.16 Intends to bring about social reforms, conferment of social status of legitimacy on a group of innocent children, otherwise treated as bastards, is its prime object: Parayan Kandiyal Eravath Kanapravan Kalliani Amma v. K.Devi J.T. (1996) 4 S.C. 656.
            Children born of viod or viodable marriage, held, not entitled to claim inheritance in ancestral coparcenary property but entitled to claim inheritance in property of parents: Jinia Keotin v. Sitaram Manjhi (2003) 1 S.C.C. 730.
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30. Substituted by Act 68 of 1976, S.9, for “expiry of three years” (w.e.f.27-5-1976).
31. Substituted by Act 68 of 1976, S.9, for “expiration of the said three years” (w.e.f.27-5-1976).
32. Substituted by Act 68 of 1976, S.9, for “expiration of three years” (w.e.f.27-5-1976).
33. Substituted by Act 68 of 1976, S.9, for “said three years” (w.e.f.27-5-1976).
34. Proviso omitted by Act 68 of 1976, S.10 (w.e.f.27-5-1976).
35. Substituted by Act 68 of 1976, S.11 (w.e.f.27-5-1976).
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17. Punishment of bigamy:- Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal code (45 of 1860) shall apply accordingly.
COMMENTS
S.17 of the Hindu Marriage Act which makes bigamy punishable is not ultra vires Art 21 of the Constitution: Chander Pal v. Kehsv Deo (1989) 2 Hindu L.R.11 (All.) (D.B.).
18. Punishment for contravention of certain other conditions for a Hindu marriage:-  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 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;
           
            Joint Committee Report:- The Joint Committee are of the opinion that it is desirable to provide for the punishment of persons contravening the other important conditions for a Hindu marriage specified in clause 5 (section 5). Clause 17 (section 17) has already made provision for the punishment of bigamous marriages and this clause seeks to punish persons who contravene the conditions specified in sub-clauses (iii), (iv), (v) and (vi) (now omitted) of clause 5. In framing the punishment the Joint Committee have had in mind the gravity of the offence in each case and the punishment prescribed for certain similar offences in the Child Marriage Restraint Act, 1929.
CHAPTER V
JURISDICTION AND PROCEDURE
[19. Court to which petition shall be presented:- Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction-
            (i) the marriage was 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
            [(iii-a) 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.]
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36. Substituted by Act 2 of 1978, S.6 and Sch., for “(v) and (vi)” (w.e.f.1-10-1978).
36a. Substituted by the Prohibition of Child Marriage Act, 2006 (6 of 2007), S.20, for Cl. (a). Prior to its substitution, Cl. (a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;”.
37. The word “and” omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
38. Cl.(c) omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).
39. Substituted by Act 68 of 1976, S.12, for S.19 (w.e.f.27-5-1976).
40. Inserted by Act 50 of 2003, S.4 (w.e.f.23-12-2003).
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20. Contents and verification of petitions:- (1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded [and, except in a petition under section 11, shall also sate] that there is no collusion between the petitioner and the other party to the marriage.
            (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.
21. Application of Act 5 of 1908:- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).
COMMENTS
In view of S.21, the matrimonial proceedings before the District Courts are to be regulated by ordinary rules of procedure including those relating to the provisions for recording evidence contained in the Evidence Act. Thus, in accepting or rejecting a prayer for obtaining expert opinion regarding blood test, the Court would be generally guided by the principles embodied in S.45 of the Evidence Act: Kartick Chandra v. Sabita Das (1986) 2 Hindu L.R. 219 (D.B.).
[21-A. Power to transfer petition in certain cases.- (1) Where-
(a) a petition under this Act has been presented to a district Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter  by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district Court or in a different District Court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).
            (2) IN a case where sub-section (1)  applies,-
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district Court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district Court in which the earlier petition was presented.
            (3) In a case where clause (b) of sub-section (2) applies, the Court or the Government, as  the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the district Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.]
            21-B. Special provision relating to trail and disposal of petition under the Act:- (1) The trial of a petition under this Act shall, so far as is practicable consistently with the interest of justice in respect of the trial, be continued from day to day until its conclusion unless the court
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41. Substituted by Act 68 of 1976, S.13, for “and shall also state” (w.e.f.27-5-1976).
42. Inserted by Act 68 of 1976, S.14 (w.e.f.27-5-1976).
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Finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.]
[21-C. Documentary evidence:- Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]
[22. Proceedings to be in camera and may not be printed or published:- (1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court of the Supreme  Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.]
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 or such relief, and
            (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]
  1. [the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and
  2. There has not been any unnecessary or improper delay in instituting the proceeding, and
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43. Inserted by Act 68 of 1976, S.14 (w.e.f.27-5-1976).
44. Substituted by Act 68 of 1976, s.15, for S.22 (w.e.f.27-5-1976).
45. Inserted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
46. The words, brackets and figures “in clause (f) of sub-section (1) of section 10, or” omitted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
47. Substituted by Act 68 of 1976, S.16, for “the petition” (w.e.f.27-5-1976).
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  1. there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
(2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.
            [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) of clause (vii) of sub-section (1) of section 13.]
(3) For the purpose of the aiding the Court in bringing about such reconciliation, the court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court, as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceeding have due regard to the report.
(4) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.]
COMMENTS
S.24 of the Act is not controlled by S.23: Gopal v. Dhapubai (1986) 2 Hindu L.R. 253 (Madh.Pra.).
[23-A. Relief for Respondent in divorce and other proceedings:- In any proceeding for divorce or judicial separation or resolution 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 the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]
24. Maintenance pendent elite and expenses of proceedings:- Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.
            [Provide 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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48. Added by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
49. Inserted by Act 68 of 1976, S.16 (w.e.f.27-5-1976).
50. Inserted by Act 68 of 1976, S.17 (w.e.f.27-5-1976).
51. Inserted by Act 49 of 2001, S.8 (w.e.f.24-9-2001).
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Objects and Reasons:- Sections 24 and 26 of the Hindu Marriage Act, 1955 do not contain any time-limit for disposal of applications for alimony pendente lite or the maintenance and education of minor children. More than 670 cases or understood to be pending in various High Courts under section 24 of the Hindu Marriage Act, 1955. As a part of the judicial reforms process, it is proposed to make necessary amendments in the enactments, i.e., sections 36 and 41 of the Indian Divorce Act, 1869, sections 39 and 49 of the Parsi Marriage and Divorce Act, 1936, sections 36 and 38 of the Special Marriage Act, 1954 and sections 24 and 26 of the Hindu Marriage Act, 1955 with a view to making provisions that an applications for alimony pendent elite or the maintenance and education of minor children shall be disposed of within sixty days from the date of service of notice on the respondent.
COMMENTS
            Relevant consideration for grant of maintenance pendent elite is that the spouse seeking maintenance should not have independent income sufficient for her/his support- Once Court reaches its conclusion in that regard, it has to grant maintenance and only discretion left with the Court is with regard to quantum of maintenance: Amarjit Kaur v. Harbhajan Singh (2003) 10 S.C.C. 228
            S.24 is enacted to provide relief by way of maintenance and litigation expenses to a spouse unable to maintain itself during the pendency of the proceedings; it is a benevolent provision: Lata v. Dhanpal (1995) 2 D.M.C. 440 (Madh. Pra).
            Cases where the parties disclose their actual income are extremely rare. Experience, therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, the quantum to be granted, the safer and surer method to be employed for coming to a realistic conclusion is to look at the status of the parties, since whilst incomes can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle is enjoyed by waring spouses, he should not be heard to complaint or plead that he has only a meager income: Radhika v. Vincent Rangta A.I.R.2004 Del 323.
            The maintenance does not mean only the bare maintenance of food and clothing, but it does include the basic additional expenses for education of the child if the status of she father or the family is of such type: Remani Menon v. K.G. Omnakuttan A.I.R.2004 Guj.23.
            The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation: Sushila Viresh Chhadva v. Viresh Nagshi Chandra (1996) 1 Mah.L.J.288.
The doctrine of alimony in its strict sense means the allowance due to wife from husband; when the wife has no separate means sufficient for her defence and subsistence, she can claim for maintenance pendent elite. No distinction can be made between a case filed under S.12 and another filed under S.13 of the Hindu Marriage Act: Sandeep Kumar v. State of Jharkhand A.I.R. 2004 Jhar.22.
            Question of maintenance pendent elite and litigation expenses arises with the filing of an application for matrimonial reliefs under the Hindu Marriage Act. It ends as the proceedings terminate. It has no separate existence and cannot stand by itself. No application for maintenance pendent elite or litigation expenses can exist independently unless lis is there: Ramactar Verma v. Chintamani A.I.R. 2004 Madh. Pra.137.
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 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 he 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
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 52. The words “while the applicant remains unmarried” omitted by Act 68 of 1976, S.18 (w.e.f.27-5-1976).
53. Substituted by Act 68 of 1976, S.18, for “and the conduct of the parties” (w.e.f.27-5-1976).
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Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(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 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 in such manner as the Court may deem just.]
COMMENTS
The relief of permanent alimony cannot be given where the main petition for relief under the Act such as divorce, judicial separation, etc., is dismissed or withdrawn: Badri Prasad v. Urmila Mahobiya A.I.R. 2001 Madh.Prad. 106.
S.24 and S.25 are enacted with the object of removing the handicap of a wife or husband with no independent income sufficient for living or meeting litigation expenses; such a relief can be granted to the husband as well who may also be deprived of the same on proof of his having sexual intercourse outside the wedlock: Lalit Mohan v. Tripta Devi A.I.R.1990 J&K.7.
“Illegitimate wife” [or faithful mistress”] cannot be included in the word “wife” as contained in S.25 of the Hindu Marriage Act: Bhausaheb v. Leelabai A.I.R. 2004 Bom. 283 (F.B.)
Under S.25 of the Hindu Marriage Act, the Court is entitled to pass an order of alimony even when the original petition is dismissed. If the Court is competent to pass an order of alimony even at the time of dismissal of the petition, there is no reason why Court cannot grant an interim alimony during the pendency of the petition on the ground that the petitioner is not likely to succeed in the main petition: Mangilal S.Mundada v. Mangala M.Mundada A.I.R. 2004 Bom.266.
When the words of S.25 of the Hindu Marriage Act, 1955 are very much clear on the point that such application can be filed after passing of the decree, therefore, mere fact that the appeal is pending in higher Court would not effect the fate of the application, which was filed after passing of the decree: Surendra Kumar Bhansali v. Judge, Family Court A.I.R. 2004 Rsj.257.
The Court may grant permanent maintenance to a party while disposing of the main petition even if no proper application has been moved: Chandrika v. Vijayakumar (1996-1) 117 Mad. L.W. 695 (D.B.).
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 been just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter 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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54. Substituted by Act 68 of 1976, s.18, for “it shall rescind the order: (w.e.f.27-5-1976).
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            [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.]
COMMENTS
            S.26 enables the Court from time to time, to pass such interim order and make such provisions in a decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. It enables the Court to do so, not only during the time the proceedings are pending but also after a decree has been passed in any proceedings under the Hindu Marriage Act: Vivek Yashavant Bhagwat v. Rekhs Vivek Bhagwat (1986) 1 Hindu L.R.46 (Madh.Pra.).
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 the husband and the wife.
COMMENTS
S.27 of the Act dealing with “disposal of property” is unambiguous and, therefore, marginal note of said section may not be used as an aid to its interpretation: Shakuntala v. Mahesh Atmaram Badlani A.I.R. 1989 Bom.353.
            S.27 of the Hindu Marriage Act does not confine or restrict the jurisdiction of matrimonial Courts to deal only with the joint property of the parties, which is presented at or about the time of marriage but also permits disposal of exclusive property of the parties provided they were presented at or about the time of marriage: Hemant Kumar Agrahari v. Lakshmi Devi A.I.R.2004 All.126 (D.B.).
            No order under S.27 can be passed with the respect to the property which exclusively belongs to the wife: Inderjit Singh v. Manjit Kaur (1987) 2 Hindu L.R.496(1988) 1 D.M.C. 129 (P.&H.).
28. Appeals from decrees and orders:-  (1) All decrees made by the 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 every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.
(2) Orders made by the Court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.
(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 the decree or order.
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55. Inserted by Act 49 of 2001, S.9 (w.e.f.24-9-2001).
56. Substituted by Act 68 of 1976, S.19, for S.28 (w.e.f.27-5-1976).
57. Substituted by Act 50 of 2003, S.5, for “period of thirty days” (w.e.f.23-12-2003). S.6 of the Marriage Laws (Amendment) Act, 2003 provides as under:- “6. Transitory provisions.- All decrees and orders made by the Court in any proceedings under the Special Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5, as the case may be, as if this Act came into operation at the time of the institution of the suit.
            Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.”
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Condonation of delay in filing appeal, is permissible: Ratan Malla v. Sefali Malla A.I.R. 2004 Gau. 36 (D.B.).
28-A. Enforcement of decrees and orders:- All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.]
CHAPTER VI
SAVINGS AND REPEALS
29. Savings:- (1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or even to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.
(2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.
(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.
(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage act, 1954 (43 of 1954) with respect to marriage between Hindus solemnized under that Act, whether before or after the commencement of this Act.
Objects and Reasons:- This clause expressly saves, inter alia, customs and special enactments like the Madras Marumakkattayam Act (12 of 1933) which provides for termination of Hindu marriage in any other manner. It is also provides that marriages solemnized under the Special Marriage Act, 1872, are not effected by any thing contained in this Bill. (Now see Special Marriage Act, 1954).
30. Repeals:- {Repealed by the Repealing and Amending Act, 1960 (58 of 1960), section 2 and Schedule (w.e.f. 26-12-1960).}