The Best Study Material for Judicial Services
This is a sample of the notes we provide for State Judicial Service exams. If you are interested in getting access to the full material, click the button below!Find Out More
Important Case Law on Hindu Marriage Act
All judgments have been especially summarized by Delhi Law Academy for use by its students only
- List of Judgments on HMA:
- Surajmani Stella Kujur Durga Charan Hansdah [2001 SC]
- Bhaurao Shankar Lokhande State of Maharashtra [1965 SC]
- Kailash Wati Ajodhia Parkash [1971 P&H]
- Swaraj Garg K. M. Garg [1978 Del.]
- Babui Panmato Kuer Ram Agya Singh [1968 Pat]
- Bipinchandra Jaisinghbai Shah Prabhavati [1957 SC]
- Savitri Pandey Prem Chandra Pandey [2002 SC]
- G. Dastane v. S. Dastane [1975 SC]
- Sureshta Devi Om Prakash [1992 SC]
- Sarla Mudgal v. Union of India [1995 SC]
- Lily Thomas Union of India [2000 SC]
- Dharmendra Kumar Usha Kumar [1977 SC]
- Hirachand Managaonkar Sunanda [2001 SC]
Case Law for section 2(2) HMA:
Surajmani Stella Kujur v. Durga Charan Hansdah 
Who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955 is a question of law to be determined in this appeal.
Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses (a), (b) and (c) of sub-section (1) of Section 2 make the Act applicable to a 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 and to a person who is a Buddhist, Jain or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.
The term “Hindu” has not been defined either under the Act or the Indian Succession Act or any other enactment of the legislature.
In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended from time to time both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that “the parties to the petition are two tribals, who otherwise profess Hinduism, but their marriage being out of the purview of the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santhal customs and usage”.
The appellant has, however, relied upon an alleged custom in the tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code.
No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for determination of civil rights of parties including their status, establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence.
The expression “custom and usage” has been defined under Section 3(a) of the Act as:
- (a) 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; Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
For custom to have the colour of a rule or law, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.
In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnised with the respondent in Delhi “according to Hindu rites and customs”.
Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage void, the appellant was under an obligation to show the existence of a custom which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which are normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24-10-1992 she has stated that “I am a Hindu by religion”. The complaint was dismissed by the trial court holding, “there is no mention of any such custom in the complaint nor is there evidence of such custom. In the absence of pleadings and evidence reference to book alone is not sufficient”. The High Court held that in the absence of notification in terms of Section 2 (2) of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law.
In view of the fact that parties admittedly belong to the Scheduled Tribes and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent.
Case Law for section 7 HMA:
Bhaurao Shankar Lokhande v. State of Maharashtra [1965 SC]
Bhaurao Shankar Lokhande, Appellant 1, was married to the complainant Indubai in about 1956. He married Kamlabai in February 1962, during the lifetime of Indubai. Deorao Shankar Lokhande, Appellant 2, is the brother of the first appellant. These two appellants, together with Kamlabai and her father and Accused 5, a barber, were tried for an offence under Section 494 IPC. Appellant 1 was convicted under Section 494 IPC and Appellant 2 for an offence under Section 494 read with Section 114 IPC.
- The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the Appellant 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through. It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when Appellant 1 and Kamlabai married each other. On behalf of the State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of Appellant 1 with Kamlabai was a valid marriage. It is also urged for the State that it is not necessary for the commission of the offence under Section 494 IPC that the second marriage be a valid one.
Prima facie, the expression “whoever …marries” must mean “whoever … marries validly” or “whoever … marries and whose marriage is a valid one”. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.
- Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of Sections 494 and 495 IPC shall apply accordingly. The marriage between two Hindus is void in view of Section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be “solemnized”, that marriage will not be void by virtue of Section 17 of the Act and Section 494 IPC will not apply to such parties to the marriage as had a spouse living. The word “solemnize” means, in connection with a marriage, “to celebrate the marriage with proper ceremonies and in due form”, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is “celebrated or performed with proper ceremonies and due form” it cannot be said to be “solemnized”. It is therefore essential, for the purpose of Section 17 of the Act, that the marriage to which Section 494 IPC applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make them ceremonies Prescribed by law or approved by any established custom.
- We may now determine what the essential ceremonies for a valid marriage between the parties are. It is alleged for the respondent that the marriage between Appellant 1 and Kamlabai was in “gandharva” form, as modified by the custom prevailing among the Maharashtrians. It is noted in Mulla’s Hindu Law:
The Gandharva marriage is the voluntary union of a youth and a damsel which springs from desire and sensual inclination. It may be noted that the essential marriage ceremonies are as much a requisite part of this form of marriage as of any other unless it is shown that some modification of those ceremonies has been introduced by custom in any particular community or caste.
(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely—
(1) invocation before the sacred fire, and
(2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire….
(2) A marriage may be completed by the performance of ceremonies other than those referred to in sub-section (1), where it is allowed by the custom of the caste to which the parties belong.
- It is not disputed that these two essential ceremonies were not performed when Appellant 1 married Kamlabai in February 1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was. It led evidence of what was performed at the time of the alleged marriage. It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the “gandharva” form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the “marriage” of the Appellant 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage.
- What took place when Appellant 1 married Kamlabai, has been stated thus, by PW 1:
Accused nos. 1 and 3 then garlanded each other. Then they each struck each other’s forehead.
He stated in cross-examination:
There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act.
- It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage. In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage.
This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act.
- We are therefore of opinion that the prosecution has failed to establish that the marriage between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.
- It follows therefore that the marriage between Appellant 1 and Kamlabai does not come within the expression “solemnized marriage” occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of Appellant1 was living when he married Kamlabai in February 1962.
- The result is that the conviction of Appellant 1 under Section 494 IPC and of Appellant 2 under Section 494 read with Section 114 IPC cannot be sustained.
Case Law for section 9 HMA:
Kailash Wati v. Ajodhia Parkash [1971 P & H]
Does the Hindu Marriage Law countenance or sanctify the concept of (what may be conveniently so called) a weekend marriage as of right at the unilateral desire of the wife?
- The appellant Smt. Kailash Wati was married to the respondent Ajodhia Parkash on in June, 1964, and at that time both of them were employed at village level teachers-the appellant at her parental village of Bilga and the respondent at village Kot Ise Khan. After the Marriage, the appellant was transferred to the station of her husband’s posting and in all they stayed together in the matrimonial home for a period of 8 to 9 months.
The allegation of the respondent-husband which is well borne out from the record is that the appellant manoeuvred to get herself transferred again to village Bilga and virtually ever since has been residing there with her parents against his wishes. It is the common case that but for a paltry spell of 3 or 4 days in September, 1971 when the appellant accompanied the respondent to Moga, the couple has not lived together. Ajodhia Parkash respondent, therefore, filed an application for the restitution of conjugal rights under section 9 of the Hindu Marriage Act (hereinafter called as the Act) on the 4th of November, 1971, and in her written statement the appellant took up the plea that she had never refused to honour her matrimonial obligations but was firm in her stand that in the existing situation she would not revert to the matrimonial home. It was categorically stated that she was not prepared to resign her job and to return to the conjugal home despite the insistence of the respondent.
The Trial Court decreed the suit of the husband respondent on the 5th of February, 1973. On an appeal preferred by the wife the learned Single Judge upheld the findings and the decree of the trial court.
- The husband’s stand is that even at the time of the original presentation of the petition in 1971, his wife had unilaterally withdrawn from the matrimonial home for a continuous period of six years He claims to be in a position to maintain his wife in dignified comfort at his place of posting with his salary, income from agricultural land and from other sources. It is highlighted on his behalf that for the twelve long and best years of his life the wife has denied him the society and substance of conjugal life and if she persists in her adamance, there is little possibility of her returning home till perhaps her superannuation from Government service.
- On the other hand the wife’s consistent position is that the husband at the time of marriage with his eyes open had accepted her as a working wife and she was, therefore, under no obligation to live with her husband because considerations of employment prevented her to do so. She claims a right to live separately because of the fact of her posting elsewhere. Her stand is that she has never positively denied access to her husband as and when possible in the peculiar circumstances.
The appellant wife was willing to allow access to her husband as an when it may be possible at her place of posting at Bilga where she was residing with her parents. In the present case where both the spouses are employed at a place more than eighty miles apart, the practical position is that the husband might on an alternative week end or on any holiday make a visit to his wife and perhaps at her option the wife if so inclined may return a visit in similar circumstances.
- The direct issue that arises herein is whether the hallowed concept of the matrimonial home can be whittled down to a weekend or an occasional nocturnal meeting, at the unilateral desire of the wife to live separately?
- Such an arrangement poses not the least difficulty where the two spouses willingly agree to the same. So long as it is consensual such an arrangement may indeed be to the mutual benefit of both the spouses.
- The bundle of indefinable right and duties which bind the husband and the wife can perhaps be best understood only in the context of their living together in the marital home.
Marital or conjugal rights include the enjoyment of association, sympathy, confidence, domestic happiness, comforts of dwelling together in the same habitation, eating meals at the same table and profiting by the joint property rights as well as the intimacies of domestic relations. Withdrawal from the matrimonial home by either spouse would inevitable involve a total or partial loss of consortium to either spouse and, consortium lies at the very root of the marital relationship.
- Three situations obviously come to the mind in such a withdrawal by the wife from the matrimonial home. The first one is, as in the present case, where the husband marries a woman already in public or private service. Does he by doing so impliedly give up his right to claim a common matrimonial home with his wife? The true position in law appears to be that any working woman entering into matrimony, by necessary implication consents to the obvious and known marital duty of living with a husband as a necessary incident of Marriage.
- It may perhaps be possible for the parties to expressly bind themselves to this effect by a clear agreement. It has been held in English Law that a mutual agreement by husband and wife not to insist on the right and obligation of each to live together is not against public policy.
- The second possibility that arises is where a husband either encourages or at least allows his wife to take up employment after marriage. Does he by doing so again abandon his legal right of having his wife live within the matrimonial home? A particular situation or financial circumstances at one or the other stage of marriage, require that both the spouses may have to seek work. In such a situation, either by mutuality or even at the instance of the husband, a wife might obtain gainful employment away from the matrimonial home. Merely from this to infer that thereafter the said condition must necessarily continue or a permanent right accrues to the wife to live away from the matrimonial home on the ground of employment elsewhere, does not appear to me as supportable either on principle or authority.
- The third and the last situation is where a wife against the wishes of her husband accepts employment away from the matrimonial home and unilaterally withdraws therefrom. This, to my mind, would be an obvious case of a unilateral and unreasonable withdrawal from the society of the husband and thus a patent violation of the mutual obligation of husband and wife to live together.
- However, the husband must actually establish a matrimonial home wherein he can maintain his wife in dignified comfort in accordance with the means and standards of living of the parties. Secondly, the husband whilst claiming the society of his wife in the marital home should be acting in good faith and not merely to spite his wife.
- On general principles alone a wife is not entitled to unilaterally withdraw from the matrimonial home and live elsewhere merely by taking shelter behind the plea that she would not deny access to the husband as and when possible. Considerations only of employment elsewhere also would not furnish her reasonable ground for withdrawal from the society and companionship of the husband which in practical terms is synonymous with withdrawal from the matrimonial home.
- The crucial issue still is as to locus of the matrimonial home. It was in terms contended that in the present times the husband had no superior right to determine the location of the matrimonial and the wife was equally entitle to do so. In the particular context of this case, it was suggested that the husband was welcome to set up house with the wife at her place of posting and thus live with her.
- It is first useful to examine this matter also dehors the strict rules of Hindu Law and upon larger principles. Almost as a matter of unanimity all civilised marriage law impose upon the husband a burden to maintain not only the wife but also the children from the wedlock, whilst there is no such corresponding obligation on the wife to maintain either the husband or the family despite the fact that she may independently be in comfortable financial circumstances. Closely connected to this legal liability is the factor that the husband usually, if not invariably, is the wage earner of the family and is thus compelled to live near his place of work. It stands to reason, therefore, that the right of choosing a home wherefrom he can effectively discharge his legal duty of being the bread winner of the family should fall upon him:
The decision where the home should be is a decision which affects both the parties and their children. It is their duty to decide it by agreement, by give and take, and not by the imposition of the will of one over that of the other. Each is entitled to an equal voice in the ordering of the affairs which are their concern. Neither has a casting vote, though to be sure they should try so to arrange their affairs that they spend their time together as a family and not apart.
- I would, therefore, conclude that even on general principles, subject to the qualification of the husband acting bona fide, he is entitled in law to determine the locus of the matrimonial home.
- It remains to examine the issue in the special context of our own statutes and the dictates of Hindu Law. Herein, what deserves particular notice is the legal obligation which both the general and the Hindu Law attach to the status of the husband. What may first be borne in mind is the fact that even under the general law a husband is bound to support his wife and children, both legitimate and illegitimate. Under section 125(1) of the Criminal Procedure Code, a husband is obliged to maintain his wife and family on pain of stringent processes on par with these applicable in the field of criminal law itself.
- Coming now to the rules of Hindu Law itself, section 18 of the Hindu Adoption and Maintenance Act, 1956 shows that a general right inheres in Hindu wife to be maintained by her husband during her lifetime and in the special circumstances of prescribed matrimonial misconduct by the husband, she is even entitled to live separately and nevertheless claim maintenance from him.
- It is thus plain that Hindu Law imposes clear and sometimes burdensome obligations on a Hindu male. He is bound to maintain his wife during her lifetime. Equally, he must maintain his minor children and this obligation is irrespective of the fact whether he possesses any property or not. The obligation to maintain these relations is personal and legal and it arises from mere fact of the existence of the relationship between the parties. Further, the sacred concept of the Hindu family, which has apparently received statutory recognition, obliges the Hindu male to maintain his unmarried daughter and his aged or infirm parents in the eventuality of their being unable to maintain themselves. With certain qualifications, the obligation to maintain a widowed daughter-in-law and the dependents of a deceased from whom any property may be inherited would also fall upon the Hindu male.
As against this, the thing is that the Hindu wife even though in independently prosperous financial circumstances is under no similar obligation to maintain her husband and perhaps in his presence is not obliged to support even the children of the family.
- The issue arises whether the Hindu male is entitled to discharge the aforementioned onerous obligation in a home of his own choice or is he even further obliged to sustain his wife and children at a place other than where he may choose to reside.
The onerous obligation, which the law imposes on the Hindu husband, is at least co-related to the right to determine the location of the matrimonial home. To put it in other words, as against the right of maintenance always inhering a Hindu wife, there is a corresponding obligation to live together with the husband in his home. That rights and duties must concur, is a principle which is too elementary to deserve elaboration. In my view, therefore, the logical concomitant to the obligation to maintain the wife and the family by the Hindu husband is that he at least has the right to claim that the wife shall live with him in a matrimonial home determined by his choice.
- Coming now to the specific rules of Hindu Law, it suffices to refer to the statement of law in the authoritative treatise Mulla’s Principles of Hindu Law in paras 442 and 555:-
442 Marital duties
- The wife is bound to live with the husband and to submit herself to his authority.
- The husband is bound to live with his wife and to maintain her.
- Separate residence and maintenance:
A wife’s first duty to her husband is to submit herself obediently to his authority, and to remain to under his roof and protection. She is not, therefore, entitled to separate residence or maintenance, unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place or residence or for other justifying cause, she is compelled to live apart from him.
Learned counsel for the appellant argued that these rules were no longer applicable in view of section 4 of the Hindu Marriage Act. This contention is without substances. That section merely provides for exclusion of those rules of Hindu Law with respect to specific matter for which provision has been made in the Hindu Marriage Act. Plainly enough this Act does not even remotely attempt to define the general marital duties and obligations of the husband and the wife to each other. Therefore, the applicable rules of Hindu Law cannot possibly be excluded from their valid field of operation.
- Under Hindu law, the obligation of the wife to live with her husband in his home and under his roof and protection is clear and unequivocal. It is only in the case of some distinct and specified marital misconduct on the part of the husband, and not otherwise, that Hindu law entitles the wife to live separately and claim maintenance therefore. This marital obligation has been further buttressed by clear statutory recognition by section 9 of the Hindu Marriage Act. This provides for an immediate remedy where either of the spouses falters in his or her obligation to provide the society and sustenance to the other. Indeed, the obligation to live together under a common roof is inherent in the concept of a Hindu Marriage and, it cannot be torn unilaterally by the desire of the wife to live separately and away from the matrimonial home merely for the reason of either securing or holding a job elsewhere. Such an act would be clearly in violation of a legal duty and it is plain, therefore that this cannot be deemed either reasonable or a sufficient excuse for the withdrawal of the wife from the society of her husband, as visualised under section 9 of the Act.
- In the present case the appellant wife deliberately and ingeniously secured her transfer away from the matrimonial home and the place of posting of the respondent husband at Kot Ise Khan in order to go back to her parental village at Bilga. For the last nearly one decade the wife has virtually refused to live with her husband except for a paltry spell of the two or three days and that also under some pressure. She is categorical in her stand that she would not confirm to her legal obligation to live with her husband for the sake of job even though he is willing and is in a position to support her in reasonable comfort in accordance with the style of life to which the parties are used to. The time perhaps has come when the appellant must make her choice between the job and the husband. A unilateral withdrawal from the society of her husband in the present situation cannot possibly be deemed a reasonable excuse so as to come within the ambit of the definition provided under section 9 of the Hindu Marriage Act. An act contrary to a legal obligation obviously cannot be deemed reasonable for the purpose of this provision. The respondent husband her has waited patiently in the wings for the best part of his life and it would perhaps be bordering on the cruel to require him to keep on waiting endlessly in suspense.
The appeal is without merit and is hereby dismissed.
* * * * *
Case Law for section 9 HMA:
Swaraj Garg v. K. M. Garg [1978 Del.]
When the husband and the wife are both gainfully employed at two different places from before their marriage, where will be the matrimonial home after the marriage?
- The wife, Swaraj, was working as a teacher at Sunam, District Sangrur, from 1956 and was the Headmistress of Government High School, in 1969. The parties were married on 12th July, 1964 at Sunam. The husband was abroad for some years and though he seems to be well qualified he did not get a satisfactory job in India. He was employed in 1966-67 at Rs 500/- p.m. The father of the wife, a petition writer, lives at Sunam, while the father of the husband, a farmer, lives at Village Lehra. The husband has no house in Delhi of his own. Before the marriage or at any time after the marriage the parties did not discuss, much less come to any agreement, as to where their matrimonial home should be after the marriage. Therefore, even after the marriage the wife continued to live at Sunam and the husband at Delhi. The wife came to Delhi to live with her husband from 12th July, 1964 to 28th Aug., 1964 and then went back to Sunam on 2nd Feb., 1965 but did not return to Delhi thereafter.
- The husband filed a petition for the restitution of conjugal rights against the wife on the ground that she had withdrawn herself from the society of the husband without reasonable excuse within the meaning of S. 9 of the Hindu Marriage Act.
- The wife defended the petition and further pleaded that it was the husband who treated her badly. All through he was bent upon taking out the maximum amount of money from her and her parents. The husband has already extracted a huge dowry from the parents of the wife and has deprived her of jewellery, clothes and other valuable presents which had been given to her by her parents. The husband has kept all this money and has deliberately left the wife without good treatment at home or any proper medical treatment when she was ill and when she was in the family way and delivered a daughter. The reason why she could not join the husband was the cruelty meted out to her by the husband.
- The petition was dismissed by the trial Court, but was allowed in appeal by a learned single Judge of this Court. Hence this Letters Patent Appeal. Contentions of the parties had to be decided on the correspondence which passed between the parties.
Choice of matrimonial home:
- The basic principles on which the location of the matrimonial home is to be determined by the husband and the wife are based on common convenience and benefit of the parties.
- Normally, the husband would be earning more than the wife and, therefore, as a rule the wife may have to resign her lesser job and join the husband, who would be expected to set up the matrimonial home. But, as Lord Denning L. J. said in Dunn v. Dunn [(1949) PD 98, 103], “it is not a proposition of law…. It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage earner and has to live near his work.” If, as in this case, it is the wife who alone has the job which is also a good job, and the husband does not have sufficient income, can it be said that even then the husband has a right to decide that the matrimonial home must be at the place where he happens to reside and the wife must resign her job and come to live with him there?
The parties in the case before us lived at two different places before marriage. At the time of the marriage there was neither an express nor an implied understanding between them that the wife was to leave Sunam and come to Delhi to live with her husband. For, at the marriage the wife was 32 years old, had already put in eight years service as a teacher and was looking forward to a promotion in her job. The husband does not appear to have any worthwhile job when he married. It could not have occurred to the parties that the wife would have to resign her job after marriage.
- Paragraph 442 of Mulla’s Hindu Law, 14th Edition, is as follows:
(1) The wife is bound to live with her husband and to submit herself to his authority.
(2) The husband is bound to live with his wife and to maintain her.
- The uncodified part of the Hindu law is based partly on the Dharma Shastras and partly on custom. The Dharma Shastras reflected the law as it ought to be. While this may have largely coincided with the law as it was, the coincidence was not complete. If the Dharma Shastras preached that the wife should always submit to the husband whatever the financial circumstances of each of them, this was only the ideal aimed at by the authors of the Dharma Shastras. In so far as the right to set up the matrimonial home as being given to the husband alone at all times in preference to the wife is based on custom, this reflected the conditions of the age in which the custom was practised. The process by which a custom becomes law is well known. The custom must be ancient, certain and enforceable. The last requirement is expressed by saying that it must be supported by the opinio necessitatis. The Indian decisions cited at the foot of paragraph 442 of Mulla’s Hindu Law are of the 1898 and 1901. Whatever may be the conditions in that distant past more than three quarters of a century later the conditions are greatly altered. It would be difficult to say now that there is any custom which obliges an earning wife to resign her job and join her husband even though on merits it is she who is better placed to choose the place of the matrimonial home rather than the husband. What happens to the custom when it becomes law? Firstly, just as a proposition of law may be rejected either because it is an incorrect formulation, or because, though correct, it is not applicable to the instant case, a custom may be rejected because either it is not applicable to the parties or it is held to be malus usus. Both these reasons are applicable to show that no enforceable custom exists as law to require the wife to abandon all her rights in favour of the husband in this respect.
- At the present day numerous women have taken up jobs to help their families and also to be useful members of the society. It may be that the wife is financially and in other respects better situated to choose the place of the matrimonial home than the husband. The existence of such circumstances in a particular case would make the law stated in paragraph 442 of Mulla’s Hindu Law inapplicable to such a case. It would appear, therefore, that the said statement of law deserves to be reconsidered. It may be brought in line with modern conditions.
- In the light of the above observations, it would appear that there is no warrant in Hindu law to regard the Hindu wife as having no say in choosing the place of matrimonial home. Art. 14 of the Constitution guarantees equality before law and equal protection of the law to the husband and the wife. Any law which would give the exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Art 14 and unconstitutional for that reason.
It is true that under the Hindu law, it is the duty of the husband to maintain his wife, but the wife is not under a corresponding duty to maintain her husband. This also is due to the fact that normally the husband is the wage earner. If, however, the wife also has her own income it will be taken into account and if her income is sufficient to maintain herself the husband will not be required to pay her any maintenance at all. It is also true that the wife is not entitled to separate residence and maintenance except for justification and otherwise the husband and the wife are expected to live together in the matrimonial home. This is also where the wife depends on the husband financially. If, as in this case, the wife earns better than the husband, firstly she will not expect to be maintained by the husband and secondly, it will not be a matter of course for her to resign her job and come to live with her husband. Some kind of agreement and give and take is necessary.
Between the husband and the wife, the decision as to the matrimonial home has to be taken on the balance of circumstances. If the circumstances are equally balanced in favour of the wife and the husband, then there would be a stalemate and neither of them would be able to sue the other for restitution of conjugal rights. Such a breakdown of marriage for which either of them or none of them can be blamed has now been made a ground for obtaining divorce in the United Kingdom by S. 1 of the Matrimonial Causes Act, 1973.
Conduct of the husband
- In Ex. R5 the husband spoils the chances of his wife coming to him by writing as follows:
If you are under the impression that your safe deposit what you earned and what your father gave you on Sandhara, would be yours, you are badly mistaken. If you come to stay with me as my wife, your all belongings are mine. You too would be mine. You will not be able to move even a step without my permission. If I want I can starve you for days and keep you thirsty for months. Here also I have arranged two tutions for you of Rs 100 each. All the money you earn or given to you from other sources, will be mine. Immediately you have to give that to me. Then if I like I can give you for your personal use. If I do not want to give you, you have to go without it. It all depends on my sweet will.
- Due to financial difficulties of the husband and comfortable position of the wife and also due to the discouraging conduct of the husband towards the wife, we are of the view that the wife had a reasonable excuse for not resigning her job and for not coming to live with the husband at Delhi. The question of the wife withdrawing herself from the society of the husband did not arise at all because the husband and the wife had not been able to decide where the matrimonial home should be set up. The fault, if any, for the lack of any agreement between them on this point was not of the wife and may be said to be of the husband.
After carefully balancing the evidence on record and arguments of both sides, the following two conclusions emerge:
- In the absence of a pre-marital agreement between the parties, it cannot be said that the wife who had a permanent job with good prospects was expected to resign it, leave Sunam and come to live with the husband when the husband did not earn enough to maintain the family at Delhi where life was costlier.
- The conduct of the husband was such as to frighten the wife from joining him and thus giving her reasonable excuse for not joining him.
Malus usus est abolendus: An evil custom is to be abolished
Opinio juris sive necessitates: An opinion of law or necessity
It is the belief that an action was carried out because it was a legal obligation.
Opinio juris sive necessitatis is a source of law in domestic and international cases because it deals with beliefs. The principle of International Law is that where states believe and accept that a practice exists and must be followed because of a rule of law requiring it, the practice becomes a part of the body of norms known as International Customary Law.
Case Law for section 12 HMA:
Babui Panmato Kuer v. Ram Agya Singh [1968 Pat]
The appellant is the plaintiff whose petition for dissolution of her marriage with the respondent has been dismissed by the learned Additional District Judge.
- The petition was founded on the ground of fraud within the meaning of clause (c) of sub-section (1) of section 12 of the Act.
- The petitioner was admittedly a little above 18 years of age at the time of the impugned marriage, which took place in May, 1959. Therefore, in order to succeed in the present proceeding the petitioner had to prove that her marriage with the respondent had been solemnized by procuring her consent to the marriage by fraud.
- The case of the petitioner as made out in the petition and also supported by her ex parte evidence in court is as follows:
Just before her marriage had been solemnized she had over- heard her father telling her mother that he had fixed up a husband for the petitioner who was in an affluent financial condition and was between 25 and 30 years of age. Having heard these particulars, the petitioner raised no objection to the proposed marriage; and it might be said that she impliedly consented to the marriage through silence. At the time of solemnization of the marriage, she was, as is customary in a Hindu family, particularly in a rural area, under a heavy veil, in consequence of which she should not see the bridegroom. The bridegroom, viz., the respondent, left on the very next morning of the marriage without petitioner’s roksadi having been performed.
Sometime in the early part of 1960, the respondent filed a criminal case against her father under section 498, Indian Penal Code. Thereupon, her father, who had earlier declined to send the petitioner to the respondent’s house, agreed to her going there and the prosecution against him was withdrawn. On the 15th April, 1960 the father took her to the respondent’s house where for the first time in the night she discovered that besides being a man of very ordinary means the respondent was aged even more than her father, that is to say over 60 years She wept and wept, took no food for two days and insisted upon being sent back to her father’s house, whereupon the respondent beat her. However she later stealthily escaped to her father’s place, but father chided her; and so she left his place as well and took shelter at her uncle’s place.
Thereupon, the defendant started another case under section 498, Indian Penal Code, against her parents and uncle. However, the respondent succeeded in taking her to his house, where she was confined in a room. The petitioner again succeeded in escaping from the respondent’s house: and this time she took shelter in her nanihal. Ultimately, in March 1961, the petitioner filed the present petition for dissolution of marriage with the respondent on the ground of fraud in the matter of procurement of her consent whereby her marriage was solemnized. According to the petitioner, she had no cohabitation with the respondent at all.
- The learned Judge has rejected the petition substantially on two grounds: (1) that there was no misrepresentation to the petitioner herself inasmuch as the particulars of the bridegroom were not conveyed to the petitioner directly and had been merely over-heard by the petitioner while her father was mentioning them to her mother; and (2) that fraudulent misrepresentation within the meaning of section 12(1)(c) must be made at the time of the solemnization of the marriage and not earlier, that is to say, at the time of negotiations of the marriage.
- “Fraud” has been defined in section 17 of the Contract Act. Here, the petitioner was sui juris; and, therefore, her consent to the marriage should have been obtained directly, but that was not done; and it was obviously with a view to procuring her consent to the marriage that the particulars of the bridegroom were conveyed to her mother, who, in the circumstances, was acting as her agent in the matter. The suggestions made to the petitioner’s mother were in respect of certain facts, which the petitioner’s father could not possibly have believed to be true. The petitioner’s father must have seen the respondent and he must have known that he was nowhere between 25 and 30 years of age at that time. Therefore, the petitioner’s father had made suggestions to the petitioner’s agent, viz. her mother, of certain facts which the petitioner’s father himself could not possibly have believed to be true.
Even upon the footing that her father intended to procure her consent indirectly employing her mother for the purpose, he had a duty towards her of making true disclosure of facts particularly with regard to the age of the proposed bridegroom. By giving out that the bridegroom was only 25 to 30 years of age, while, in fact, he was in the region of 60 years, the petitioner’s father had resorted to the active concealment of a fact which was within his knowledge or belief. If the petitioner’s father had conveyed true facts to her mother and yet the petitioner, who overheard the talks, did not protest, then the position could have been materially different. But, here the relevant facts were suppressed from her knowledge, although it was the duty of her father to convey the true position to her. This view receives ample support from illustration (b) to Section 17 of the Contract Act.
Illustration (a) embodies a situation where there is no duty to disclose any defect in the matter which is the subject of bargain between the parties. In the Illustration, mention is made of a horse, which is sold by A to B by auction. Regarding the same matter, it is provided by Illustration (b) that where the purchaser is a daughter who has just come of age, it is incumbent upon the seller, viz., A, on account of his relation with the purchaser, viz., B, to disclose to B if the horse is unsound.
in this case it was the duty of the petitioner’s father to disclose to petitioner that the respondent was a man of nearly 60 years so that she might be free to give or withhold her consent to the proposed marriage. Therefore, elements of fraud were undoubtedly present.
- The Judge is not right in holding that there was no fraudulent misrepresentation to the petitioner since the talks were between her father and her mother. The learned Judge has missed to note the purpose of this talk was to convey relevant information to the petitioner through her mother so that the petitioner might be in a position to give her consent to the proposed marriage. Anybody, who is familiar with the family life of an average Hindu, knows that talks about marriage between a father and a daughter are not carried on directly but are conveyed indirectly through the agency of female relative particularly the mother, if she is available. I am, therefore, of the opinion that there was a fraudulent misrepresentation to the petitioner, intended to procure her consent to the marriage.
- It is manifest that the impression which was created in the mind of the petitioner by the talks between her father and her mother, continued even at the time of solemnization of the marriage, because upon the evidence it must be held that the petitioner, being under a heavy veil, at the time of the marriage, could have no opportunity to have a look at her husband so as to make her in a position to withdraw her consent even at that stage. However, the evidence disclose that it was not until the 15th April 1960, when the true facts with regard to the age of the respondent came to the petitioner’s knowledge.
- It will be noticed that the expression “at the time of the marriage” is to be found in clause (a) as well as in clause (d) but it is non-existent in clause (c). Therefore, the scheme of section leaves no room for doubt that in a case falling under clause (c) it is not necessary to prove that consent was obtained by force or fraud at the time of the marriage. All that the section requires is that the consent should have been obtained by force or fraud before the marriage was solemnized.
- In my view, the case of the petitioner falls quite clearly within the ambit of clause (c) of section 12(1) of the Act. I, therefore, annul the petitioner’s marriage with the respondent.
* * * * *
Case Law for section 13 HMA:
Bipinchandra Jaisinghbai Shah v. Prabhavati [1957 SC]
Dissolution of a Hindu marriage particularly amongst what were called the regenerate classes was unknown to general Hindu law and was wholly inconsistent with the basic conception of a Hindu marriage as a sacrament: a holy alliance for the performance of religious duties. According to Shastras, marriage amongst Hindus was the last of the ten sacraments enjoined by the Hindu religion for purification. Hence according to strict Hindu law as given by the Samhitas and as developed by the commentators, a Hindu marriage could not be dissolved on any ground whatsoever.
What is desertion?
Quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there:
- the factum of separation
- the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned:
- absence of consent, and
- absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi.
The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close.
If a deserting spouse takes advantage of the locus paenitentiae provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt.
Literally this signifies a place of repentance;
In law, it is the opportunity of withdrawing from a projected contract, before the parties are finally bound; or of abandoning the intention of committing a crime, before it has been completed.
Locus poenitentiae is a Latin phrase which means opportunity to withdraw from a contract or obligation before it is completed or to decide not to commit an intended crime. This signifies repentance in the context of criminal law.
Case Law for section 13 HMA:
Savitri Pandey v. Prem Chandra Pandey [2002 SC]
Alleging cruelty and desertion against the husband, the appellant- wife approached the Matrimonial Court under Section 13 of the Hindu Marriage Act praying for dissolution of her marriage with the respondent by a decree of divorce. She also prayed for direction to the respondent to return her ornaments given to him at the time of marriage. The Family Judge allowed the petition and dissolved the marriage of the parties on the ground of desertion by the husband. The appellant was also granted a decree of Rs.12,000 towards the price of the scooter, allegedly given at the time of the marriage and payment of Rs.500 per month as permanent alimony.
Both the husband and the wife preferred appeals against the order of the Family Court as the wife was not satisfied with the part of the order refusing to grant a decree in her favour in respect of properties claimed by her and the husband was aggrieved by the order of dissolution of the marriage by a decree of divorce. Both the appeals were disposed of by the impugned order holding that the appellant-wife herself was a defaulting party and neither the allegations of cruelty nor of desertion were proved. The order passed under Section 27 of the Hindu Marriage Act and for permanent alimony was also set aside.
The facts of the case are that marriage between the parties was solemnised on 6.5.1987. The appellant-wife lived with the respondent-husband till 21st June, 1987 and according to her the marriage between the parties was never consummated. After 21st June, 1987 the parties started living separately. The appellant alleged that her parents gave several articles in the form of ornaments, valuables, cash and kind as per demand of the respondent. The respondent and his family members allegedly made further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of Rs.10,000. The father of the appellant obliged the respondent by giving him Rs.10,000 in the first week of June, 1987 but could not fulfil the other demands of his parents. The respondent and his family members were alleged to have started torturing the appellants on false pretexts. Aggrieved by the attitude of the respondent and his family members, the appellant states to have filed a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce along with prayer for the return of the property and grant of permanent alimony. The respondent also filed a petition seeking divorce and grant of other reliefs. However, on 14.5.1996 the respondent filed an application for withdrawal of his matrimonial case which was allowed on 19.5.1996. The appellant had alleged that the respondent was having illicit relations with a lady residing in Gaya at Bihar with whom he was stated to have solemnised the marriage. The allegations made in the petition were denied by the respondent and it was stated that in fact the appellant-wife was taking advantage of her own wrongs.
With respect to the issue of cruelty, the Family Court concluded that no evidence had been led to prove the allegations. The Court, however, held: “but it is proved that the respondent had deserted the petitioner, hence the petitioner will get or is entitled to for a decree of divorce”. The High Court held: “We also do not find any evidence that the wife has been treated with cruelty by the husband. We are also of the view that there is no evidence that petitioner is deserted.”
Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.
No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.
“Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. This Court in Bipinchandra Shah v. Prabhavati  held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties.
The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.
In the instant case the appellant herself pleaded that there had not been cohabitation between the parties after the marriage. She neither assigned any reason nor attributed the non-resumption of cohabitation to the respondent. From the pleadings and evidence led in the case, it is apparent that the appellant did not permit the respondent to have cohabitation for consummating the marriage. In the absence of cohabitation between the parties, a particular state of matrimonial position was never permitted by the appellant to come into existence. In the present case, in the absence of cohabitation and consummation of marriage, the appellant was disentitled to claim divorce on the ground of desertion.
No evidence was led by the appellant to show that she was forced to leave the company of the respondent or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent had ever declared to bring the marriage to an end or refuses to have cohabitation with the appellant. As a mater of fact the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation.
In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or disability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties.
For upholding the judgment and decree of the Family Court, the learned counsel appearing for the appellant submitted that as after the decree of divorce the appellant had remarried with one Sudhakar Pandey and out of the second marriage a child is also stated to have been born, it would be in the interest of justice and the parties that the marriage between them is dissolved by a decree of divorce.
To appreciate such a submission some facts have to be noticed and the interests of public and society to be borne in mind. It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 8.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second marriage on 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts.
This Court in Ms. Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935] suggested for a complete reform of law of marriage and to make a uniform law applicable to all people irrespective of religion or caste. The Court observed:
“It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. …. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the present have found themselves.
Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. This Court in V. Bhagat v. Mrs.D. Bhagat [1994 SC] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.
As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.
There is no merit in these appeals which are dismissed with costs throughout.
Case Law for section 13 HMA:
N.G. Dastane v. S. Dastane [1975 SC]
This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The spouses possess high academic qualifications and each one claims a measure of social respectability and cultural sophistry. The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962
- The appellant asked for annulment of his marriage under Section 12(l)(c) on the ground that his consent to the marriage was obtained by fraud. Alternatively, he asked for divorce under Section 13(l)(iii) on the ground that the respondent was incurably of unsound mind. Alternatively, the appellant asked for judicial separation under Section 10(1)(b) on the ground that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it would be harmful or injurious for him to live with her.
This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty.
Nature of burden of proof on a petitioner in a matrimonial petition: Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense, as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty. But does the law require that the petitioner must prove his case beyond a reasonable doubt? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order to judge whether the burden has been discharged?
- The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities.
- Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving issues of quasi-criminal nature. A criminal trial involves liberty of the subject, which may not be taken away on a mere preponderance of probabilities.
- Neither Section 10 nor Section 23 requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases.
- The misconception arises perhaps from a loose description of the respondent’s conduct in such cases as constituting a “matrimonial offence”. Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy has no bearing on the standard of proof in matrimonial cases.
- Though under Section 10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations.
The question whether the misconduct complained of constitutes cruelty for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set.
The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. We must therefore understand this Dr Dastane and his wife Sucheta as nature has made them and as they have shaped their lives.
- We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse.
This is not a case of mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to the needs of the husband and the household. She delights in causing misery to her husband and his relations: “I want to see the ruination of the whole Dastane dynasty”; “burn the book written by your father and apply the ashes to your forehead”; “you are not a man” conveying that the children were not his; “ you are a monster in a human body “I will make you lose your job and publish it in the Poona newspapers” — these and similar outbursts are not the ordinary wear and tear of married life, but they became, by their regularily, a menace to the peace and well-being of the household. Acts like the tearing of the Mangal-Sutra, locking out the husband when he is due to return from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony.
- The conduct of the respondent clearly amounts to cruelty within the meaning of Section 10(1)(b). Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation. Her once-too- frequent apologies do not reflect genuine contrition but were merely impromptu devices to tide over a crisis temporarily.
- Next question is whether the appellant had at any time condoned the respondent’s cruelty. Under Section 23(1)(b), relief prayed for can be decreed only and only if “where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty”.
- Argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty.
- Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.
- The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred.
That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.
- But condonation of a matrimonial offence is not to be likened to a full Presidential pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. “No matrimonial offence is erased by condonation. It is obscured but not obliterated”. Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can therefore be revived, say, by desertion or adultery.
- It is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter to the Secretary, Ministry of Food and Agriculture, containing false and malicious accusations against the appellant and his parents and that she asked the Government to provide her with separate maintenance.
- Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action. These allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the purposes of this appeal, we must assume to be wrong and unfounded.
- We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action. Accordingly, we dismiss the appeal.
* * * * *
Case Law for section 13B HMA:
Sureshta Devi v. Om Prakash [1992 SC]
This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent, and is said, probably rightly, to raise an important issue. The issue is whether a party to a petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent or whether the consent once given is irrevocable.
- The appellant is the wife of the respondent. They were married in 1968. They lived together for about six to seven months. Thereafter, it is said that the wife did not stay with the husband except from December 9, 1984 to January 7, 1985. That was pursuant to an order of the court, but it seems that they did not live like husband and wife during that period also. On January 8, 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan. After about an hour’s discussion, they moved a petition under Section 13-B for divorce by mutual consent in the District Court at Hamirpur. On January 9, 1985 the court recorded statements of the parties and left the matter there.
- On January 15 1985, the wife filed an application in the court, inter alia, stating that her statement dated January 9, 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the court. She said that she would not be party to the petition and prayed for its dismissal. Ultimately, the District Judge dismissed the petition for divorce. But upon appeal, the High Court has granted a decree for dissolution of the marriage by mutual consent. The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent.
- Section 13-B was not there in the original Act. It was introduced in 1976. It is also necessary to read Section 23(1)(bb). Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954. Sub-section (1) of Section 13-B requires that the petition for divorce by mutual consent must be presented to the court jointly by both the parties. Similarly, sub-section (2) providing for the motion before the court for hearing of the petition should also be by both the parties.
- There are three other requirements in sub-section (1). They are:
- They have been living separately for a period of one year,
- They have not been able to live together, and
- They have mutually agreed that marriage should be dissolved.
- The ‘living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‘living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they ‘have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.
- Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.
- The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition.
The Bombay High Court has expressed the view that the crucial time for the consent for divorce under Section 13-B was the time when the petition was filed. If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent. The court has drawn support to this conclusion from the principle underlying Order 22 Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit.
- But the Kerala High Court, the Punjab and Haryana High Court and Rajasthan High Court have taken a contrary view. It has been held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the court passes a decree for divorce. The satisfaction of the court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent.
- From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub- section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both.
At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties…. if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce ….” What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
- Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”.
- In the result, we allow the appeal and set aside the decree for dissolution of the marriage.
* * * * *
Case Law for section 17 HMA:
Smt. Sarla Mudgal, President, Kalyani v. Union of India [1995 SC]
Kuldip Singh, J.
“The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution which seeks to introduce a uniform personal law–a decisive step towards national consolidation.
Questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu? Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code?
Petitioner 1 is the President of “KALYANI” – a registered society – which is an organisation working for the welfare of needy-families and women in distress.
Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted to Islam.
Marriage is the very foundation of civilised society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.
Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.
The position has not changed after coming into force of the Hindu Marriage Act, 1955, rather it has become worse for the apostate.
A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be non est.
Necessary ingredients of Section 494 IPC are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife.
It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy.
The expression “void” for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. The expression “void” under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC.
A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.
The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.
A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute “where the parties are Muslims” and, therefore, the rule of decision in such a case was or is not required to be the “Muslim Personal Law”. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.
Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.
The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. Result of the interpretation, we have given to Section 494 IPC, would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.
All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.
We request the Government of India to have a fresh look at Article 44 and “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
R.M. SAHAI, J.
The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert to Islam only for purposes of escaping the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But no religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context’.
The law may provide that every citizen who changes his religion cannot marry another wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a Budhist.
O R D E R
For reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of answers in the opinion of Kuldip Singh, J.
Case Law for section 17 HMA:
Lily Thomas v. Union of India [2000 SC]
Under the Hindu Marriage Act, if the marriage takes place in spite of the fact that a party to that marriage had a spouse living, such marriage would be void under Section 11 of the Hindu Marriage Act. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act under which an offence of bigamy has been created. This offence has been created by reference. By providing in Section 17 that provisions of Sections 494 and 495 would be applicable to such a marriage, the legislature has bodily lifted the provisions of Sections 494 and 495 IPC and placed them in Section 17 of the Hindu Marriage Act. This is a well-known legislative device. The important words used in Section 494 are “marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife”. These words indicate that before an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the lifetime of such husband or wife.
- It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to Sections 43 and 44 of the Special Marriage Act. It also corresponds to Sections 4 and 5 of the Parsi Marriage & Divorce Act and Section 61 of the Indian Divorce Act.
- If a person marries a second time during the lifetime of his wife, such marriage apart from being void under Sections 11 and 17 of the Hindu Marriage Act, would also constitute an offence and that person would be liable to be prosecuted under Section 494 IPC. While Section 17 speaks of marriage between two “Hindus”, Section 494 does not refer to any religious denomination.
- Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy.
- In Gul Mohd. v. Emperor [1947 Nag] the High Court held that the conversion of a Hindu wife to Mohammedanism does not, ipso facto, dissolve the marriage with her Hindu husband. She cannot, during his lifetime, enter into a valid contract of marriage with another person. Such person having sexual relations with a Hindu wife converted to Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was already married and her husband was alive.
- Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable to be prosecuted under Section 494 IPC.
Prosecution under Section 494 in respect of a second marriage under Mohammedan law can be avoided only if the first marriage was also under the Mohammedan law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the lifetime of the spouse.
- We are not here concerned with the status of the second wife or the children born out of that wedlock as in the instant case we are considering the effect of the second marriage qua the first subsisting marriage in spite of the husband having converted to “Islam”.
- Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court in Sarla Mudgal, President, Kalyani v. Union of India  held:
The second marriage of a Hindu husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate husband would be guilty of the offence under Section 494 IPC.
- We cannot accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is a settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the court does not legislate but only gives an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) is without any substance and is liable to be dismissed on this ground alone.
- It was contended in Sarla Mudgal that making a convert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. No person, by the judgment impugned, has been denied the freedom of conscience and propagation of religion. The second marriage solemnised by a Hindu during the subsistence of a first marriage is an offence punishable under the penal law.
Muslim law permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is a condition precedent. Even under the Muslim law plurality of marriages is not unconditionally conferred upon the husband.
Case Law for section 23(1)(a) HMA:
Dharmendra Kumar v. Usha Kumar [1977 SC]
On her application made under Section 9 of the Hindu Marriage Act, the respondent was granted a decree for restitution of conjugal rights in August 1973. A little over two years after that decree was passed, in October 1975, she presented a petition under Sec. 13(1A)(ii) of the Act for dissolution of the marriage by a decree of divorce.
In the petition under Section 13(1A)(ii) she – we shall hereinafter refer to her as the petitioner – stated that there had been no restitution of conjugal rights between the parties to the marriage after the passing of the decree for restitution of conjugal rights and that there was no other legal ground why the relief prayed for should not be granted.
Her husband, the appellant before us, in his written statement admitted that there had been no restitution of conjugal rights between the parties after the passing of the decree in the earlier proceeding, but stated that he made attempts “to comply with the decree (for restitution of conjugal rights) by writing several registered letters to the petitioner” and “otherwise” inviting her to live with him. He complained that the petitioner “refused to receive some of the letters and never replied to those which she received,” and according to him the petitioner “has herself prevented the restitution of conjugal rights she prayed for and now seeks to make a capital out of her own wrong.” The objection taken in the written statement is apparently based on Section 23(1)(a) of the Act.
- On the pleadings the following issue was raised:
“Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement?”
The Additional District Judge allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In this present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner.
- Sec. 13(1A)(ii) of the Hindu Marriage Act allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (1A) was introduced in Sec. 13 in 1964. Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under Section 13 including sub-section (1A) however continue to be subject to the provisions of Section 23 of the Act.
It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under Section 13 (1A)(ii). On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband’s invitation to come and live with him disentitle her to the relief?
We do not find it possible to hold that it would. In Gajna Devi v. Purshotam Giri a learned Judge of Delhi High Court observed:
Section 23 existed in the statute book prior to the insertion of Section 13(1A)…. Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of Sec. 23 of the Act, not entitled to obtain divorce then it would have inserted an exception to Section 13(1A) and with such exception the provision of Section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of Section 13(1A) nugatory.
The expression “petitioner is not in any way taking advantage of his or her own wrong” occurring in Cl. (a) of S. 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of the marriage which has been conferred on him by Sec. 13(1A)…. In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree….” Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a ‘wrong’ within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.
- In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to live with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. The appeal is therefore dismissed.
* * * * *
Case Law for section 23(1)(a) HMA:
Hirachand Managaonkar v. Sunanda [2001 SC]
The point that arises for determination in this case is short but by no means simple. The point is this: whether the husband who has filed a petition seeking dissolution of the marriage by a decree of divorce under Section 13(1-A)(i) of the Hindu Marriage Act, 1955 can be declined relief on the ground that he has failed to pay maintenance to his wife and daughter despite an order of the court.
- The relevant facts of the case may be stated thus: The appellant is husband of the respondent. On the petition filed by the respondent under Section 10 of the Act seeking judicial separation on the ground of adultery on the part of the appellant a decree for judicial separation was passed by the High Court of Karnataka on 6-1-1981. In the said order the Court considering the petition filed by the respondent, ordered that the appellant shall pay as maintenance Rs 100 per month to the wife and Rs 75 per month for the daughter. Since then the order has not been complied with by the appellant and the respondent has not received any amount towards maintenance. Thereafter, on 13-9-1983 the appellant presented a petition for dissolution of marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of more than one year after passing of the decree for judicial separation.
- The respondent contested the petition for divorce on the ground that the appellant having failed to pay the maintenance as ordered by the Court the petition for divorce filed by him is liable to be rejected as he is trying to take advantage of his own wrong for getting the relief. The High Court by the judgment dated 10-4-1995 accepted the plea taken by the respondent and refused to grant the appellant’s prayer for divorce. The said order is assailed by the appellant in this appeal by special leave.
- Counsel appearing for the appellant contended that the only condition for getting a divorce under Section 13(1-A) is that there has been no resumption of cohabitation for a period of one year or upwards. Section 23(1)(a) has no application to a case under Section 13(1-A)(i). Alternatively, she contended that the “wrong” allegedly committed by the appellant has no connection with the relief sought in the proceeding i.e. to pass a decree of divorce. An order for payment of maintenance is an executable order and it is open to the respondent to realise the amount due by initiating a proceeding according to law.
- Originally nine different grounds were available to a husband or wife for obtaining a decree of divorce under sub-section (1) of Section 13. Under clause (viii) of the sub-section, a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against that party. Under clause (ix) of the sub-section, a marriage could be dissolved by a decree of divorce on a petition presented by the husband or the wife on the ground that the other party had failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of a decree of restitution against that party.
- Amending Act of 1964, which came into force on 20-12-1964, effected two significant changes. Clauses (viii) and (ix) which constituted two of the nine grounds on which a marriage could be dissolved by a decree of divorce were deleted from sub-section (1) and secondly, a new sub-section i.e. sub-section (1-A) was added to Section 13. It is clear from these amendments introduced in 1964 that whereas prior to the amendment a petition for divorce could be filed only by a party which had obtained a decree for judicial separation or for restitution of conjugal rights, this right is now available to either party to the marriage irrespective of whether the party presenting the petition for divorce is a decree-holder or a judgment-debtor under the decree for judicial separation or the decree for restitution of conjugal rights, as the case may be. This position is incontrovertible.
- The question is: whether in a petition for divorce filed under sub-section (1-A) of Section 13, it is open to the court to refuse to pass a decree on any of the grounds specified in Section 23 of the Act, insofar as any one or more of them may be applicable.
- The contention that the right conferred by sub-section (1-A) of Section 13 is absolute and unqualified and that this newly conferred right is not subject to the provisions of Section 23 is fallacious. This argument appears to be based on the erroneous notion that to introduce consideration arising under Section 23(1) into the determination of a petition filed under sub-section (1-A) of Section 13 is to render the amendments made by amending Act of 1964 wholly meaningless. As noted earlier, prior to the amendment the right to apply for divorce was restricted to the party which had obtained a decree for judicial separation or for restitution of conjugal rights. Such a right was not available to the party against whom the decree was passed. Sub-section (1-A) of Section 13 which was introduced by the amendment confers such a right on either party to the marriage so that a petition for divorce can, after the amendment, be filed not only by the party which had obtained a decree for judicial separation or for restitution of conjugal rights but also by the party against whom such a decree was passed. This is the limited object and effect of the amendment introduced in 1964. The amendment was not introduced in order that the provisions contained in Section 23 should be abrogated and that is also not the effect of the amendment. The object of sub-section (1-A) was merely to enlarge the right to apply for divorce. The very language of Section 23 shows that it governs every proceeding under the Act and a duty is cast on the court to decree the relief sought only if the conditions mentioned in the sub-section are satisfied, and not otherwise.
- The next contention that arises for consideration is whether the appellant by refusing to pay maintenance to the wife has committed a “wrong” within the meaning of Section 23 and whether in seeking the relief of divorce he is taking advantage of his own “wrong”.
- After the decree for judicial separation was passed on the petition filed by the wife it was the duty of both the spouses to do their part for cohabitation. The husband was expected to act as a dutiful husband towards the wife and the wife was to act as a devoted wife towards the husband. If this concept of both the spouses making sincere contribution for the purpose of successful cohabitation after a judicial separation is ordered then it can reasonably be said that in the facts and circumstances of the case the husband in refusing to pay maintenance to the wife failed to act as a husband. Thereby he committed a “wrong” within the meaning of Section 23 of the Act.
- If the provisions in Section 13(1-A) and Section 23(1)(a) are read together the position that emerges is that the petitioner does not have a vested right for getting the relief of a decree of divorce against the other party merely on showing that the ground in support of the relief sought as stated in the petition exists. It has to be kept in mind that before granting the prayer of the petitioner to permanently snap the relationship between the parties to the marriage every attempt should be made to maintain the sanctity of the relationship which is of importance not only for the individuals or their children but also for the society.
- Next question is the meaning and import of Section 10(2) in which it is laid down that 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 rescind the decree. The question is whether applying this statutory provision to the case in hand can it be said that the appellant was relieved of the duty to cohabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter. On a fair reading of sub-section (2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed. Even assuming that the provision extends to both the petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed. As the provision clearly provides, the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment. The decree may fall by a conciliation of the parties in which case the rights of the respective parties which float from the marriage and were suspended are restored. Therefore the impression that Section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. The object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship.
- Now we come to the crucial question: whether refusal to pay alimony by the appellant is a “wrong” within the meaning of Section 23(1)(a) of the Act so as to disentitle the appellant to the relief of divorce. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by the wife, it was expected that both the spouses will make sincere efforts for a conciliation and cohabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has not only failed to make any such attempt but has also refused to pay the small amount of Rs 100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances, it can reasonably be said that he not only commits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any rapprochement impossible but also tries to take advantage of the said “wrong” for getting the relief of divorce. Such conduct in committing a default cannot be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under Section 13(1-A).
- The question that remains to be considered is whether the appellant husband can be said to have committed and to be committing a “wrong” within the meaning of Section 23(1)(a) by continuing to live with his mistress even after passing of the decree for judicial separation on the ground of adultery. The respondent presented the petition seeking a decree of judicial separation on the ground that the appellant has been living in adultery since he is living with another lady during the subsistence of the marriage with her. The Court accepted the allegation and passed the decree for judicial separation. Even after the decree the appellant made no attempt to make any change in the situation and continued to live with the mistress. To pursue still such an adulterous life with no remorse, even thereafter, is yet another “wrong” which he deliberately continued to commit, to thwart any attempt to reunite and, in such circumstances can it be said that the passing of a decree for judicial separation has put an end to the allegation of adultery; or that the chapter has been closed by the decree for judicial separation and therefore he cannot be said to have committed a “wrong” by continuing to live with the mistress.
Living in adultery on the part of the husband in this case is a continuing matrimonial offence. The offence does not get frozen or wiped out merely on passing of a decree for judicial separation which as noted earlier merely suspends certain duties and obligations of the spouses in connection with their marriage and does not snap the matrimonial tie. In that view of the matter accepting the contention of the appellant would defeat the very purpose of passing the decree for judicial separation.
- Accordingly the appeal is dismissed with costs.