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Bars to Matrimonial relief

Bars to Matrimonial relief

  • The grounds that make the petitioner non-innocent are termed as bars to matrimonial relief. 
  • In other words, the petitioner to succeed in his petition should not merely prove that fault of the respondent based on which he seeks the matrimonial relief but; should also cross the bars to such relief before his petition is granted. 
  • English law classified these bars into absolute bars and discretionary law. 
  • In India, all bars are absolute bars. 
  • Section 23(1) deals with the following bars:
    • Doctrine of strict proof Or standard of proof and burden of proof. 
    • Taking advantage of one own wrong or disability section 23(1) (a). 
    • Accessory. Section 23(1) (b) 
    • Connivance/connived. Section 23(1) (b) 
    • Condonation/condone/condoned. Section 23(1) (b) 
    • Consent should be free. Section 23(1) (bb) 
    • Collusion. Section 23(1) (c)
    • Delay section 23(1) (d) [principal of dachas]
    • Any other legal grounds section 23(1) (e) 
    • Reconciliation section 23(2) +(3) 

The doctrine of strict proof Or standard of proof and burden of proof 

  • In a matrimonial case, the burden of proof is on the petitioner, and he must prove his case beyond all reasonable doubts. This is known as the doctrine of strict proof. 
  • In the case of desertion, the Supreme Court observed that” it is well settled that in a proceeding for divorce the plaintiff must prove the offense of desertion like any other matrimonial offense beyond all reasonable doubts. 
    • Bhipinchandra v. Prabhu (1957) 
    • White v. White (1958) 

Taking advantage of one own wrong or disability section 23(1) (a) 

  • This bar and the bars of accessory and connivance are based on the maxim of equity “one who comes to equity must come with clean hands.”
  • If the respondent’s guilt is related directly or indirectly to some wrong or disability, the petitioner cannot be given the relief prayed for, even if he can establish his ground. 

Accessory: Section 23(1) (b) 

  • It is a term of criminal law. It implies active participation in the crime of the respondent. 
  • A person may be an accessory before the commission of the crime or after the commission of the crime, or at the time of the crime in such case, he is called an accomplice. 
Bars to Matrimonial relief

Connivance/connived. Section 23(1) (b) 

  • Connivance, like an accessory, is based on the maxim of equity. 
  • Connivance means secretly involved in an immoral or an illegal act. 
  • The word has been derived from ‘connive,’ which means ‘to wink at.’ 
  • Connivance may be:
    • Anticipatory-willing consent- express
    • Culpable acquiescence- active or passive- implied- no active Participation.

Condonation section 23(1) (b) 

  • Condonation means blotting out or erasing out the matrimonial offense to restore the offending spouse to the same position as he or she occupied before the offense was committed. 
  • In Carson v. Carson (1964), Essential characteristics of condonation are the forgiveness and reinstatement by the spouse who has suffered the matrimonial offense. 
  • Condonation essentially implies forgiveness plus restoration of status quo ante, “mere forgiveness is not condonation; to be condonation, it must completely restore the offending party in its former status and must be followed by cohabitation. 

Collusion section 23(1) (c) 

  • Collusion is a bar to every other matrimonial relief. Collusion virtually amounts to obtaining a divorce by consent. 
  • Collusion is an arrangement or understanding between the parties or their agents whereby matrimonial relief is designed to be obtained by deceiving the court by miss representation or by cooking up entire false evidence. 
  • Hotel bill case

Delay: section 23 (1) (d) 

  • Delay applies to all the matrimonial relief. 
  • To matrimonial proceedings, the principle of laches applies. 
  • The doctrine of laches – means ‘out of time.’
  • In Rama v. Krishna swami 1972, Section 23(1) (d) Embodies this principle; thus, ‘court must be satisfied that there has not been any unnecessary or improper delay in instituting proceedings. 

Other legal grounds: section 23 (1) (e) 

  • It contains residue bar (Matter that remains after something has been removed)
  • Not decree is to be passed if there are any other legal grounds why relief should not be granted. 

Reconciliation: section 23(2) 

  • In Raghunath v. Urmila 1973, Section 23(1) (2) of the Hindu Marriage Act 1955 imposes a duty on the court to effect a reconciliation between parties. 
  • Reconciliation proceedings are not applicable when parties for divorce or judicial separation are on the ground of conversion, insanity, leprosy, venerable disease, renunciation of the world, or presumption of death. 

            

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