Family Law

Matrimonial remedies or relief

Matrimonial remedies or relief

  • Matrimonial remedies (legal action in respect of marriage) 
  • Some matrimonial disputes occur because of misunderstandings between the husband and wife; in such cases, some relief is provided to the aggrieved spouse. 
  • The matrimonial remedies are:
    • Restitution of conjugal right. (Section 9) 
    • Judicial separation (section 10)
    • Nullity of marriage. (Section 11,12)
    •  Divorce. (Section 13) 

Restitution of conjugal right under section 9

  • Marriage in Hindu law has been considered a holy concept. 
  • It is the right and duty of both husband and wife to live together and provide cohabitation to each other. 
  • According to section 9 of the Hindu marriage act 1955, if either the husband or wife, without reasonable excuse, withdraws from the society of others, the aggrieved party may approach the court for restitution of conjugal rights. 
  • The court may decree the restitution of conjugal rights when:
    • Either party has, without reason, withdrawn from the society of others. 
    • The court is satisfied with the truth of the statement made in the petition. 
    • There is no legal ground why the application should be granted. 
  • In Sushila bai v. Prem narayan (1976) The Madhya Pradesh high court held that to sustain a petition for restitution of conjugal rights, it is necessary to establish that the respondent has withdrawn from petitioner society. 

The constitutional validity of section 9

  • In T. Sareetha v. T. Venkata (1983), the Andhra Pradesh High Court held that section 9 violated an individual right to privacy. It denies the woman of her free choice whether, when and how she is to become the vehicle for the procreation of another human being. It violates the right to privacy and human dignity guarantee by article 21.
  • Further in Smt. Harvinder Kaur v. Harmander Sing Choudhary [1984] The Delhi High court did not agree with the opinion of the High Court of Andhra Pradesh and held that section 9 of the Hindu Marriage Act 1955 was not violating articles 14 and 21 of the Indian Constitution. The object of this section 9 is cohabitation between the parties so that they can live together in the matrimonial home in amity. 
  • Further in Saroj rani v. Sudarshan Kumar (1984) The Supreme Court upheld that the decision of the High Court of Delhi by overruling the decision of the Andhra Pradesh high court. 

Judicial separation under section 10

  • Separation 
Judicial SeparationConsensual Separation
Parties may separate from each other under a decree of the court.   Parties may separate from each other to enter into an agreement.   
  • After separation parties are not bound to cohabit with each other. 
  • If cohabitation is not resumed for one year or more after passing the decree of judicial separation, any party may sue for divorce under section 13 of the Hindu marriage act 1955.
Whether court can pass a decree of judicial separation on the application of divorce

In Bhagwan v. Amar kaur (1962)

In this case, the court held that when the grounds of divorce are not satisfied, the court can use its discretion to pass a decree of judicial separation. 

Difference between judicial separation and divorce

Judicial separation Divorce  
Does not terminate the marriageTerminate the marriage.   
The rights and obligations of the spouse remain suspended. Dissolve the marriage.   
Neither party becomes free to remarry with the third person. Free to remarry.   
Ground for judicial separation is less seriousGrounds are more serious.   
The possibility of reunion is available.No reunion of the spouse.  

Nullity of marriage under section 11, 12

The law of nullity relates to the pre-marriage impediments to marriage. The subject matter of impediments to marriage is covered under the capacity to marry. 

capacity to marry

Difference between a void marriage and voidable marriage

Void marriage   Voidable marriage  
It is void-ab- initio.   Valid until it has not been declared by decree of the court.   
No material rights and obligation arises. All material rights and obligations exist.   
 It does not require the decree of the court to declare it null.   Declared null only by decree of the court.
Can remarry any time. Cannot remarry.  
Wife cannot claim maintenance under section 125 Cr.P.C. Wife can claim maintenance.  
Provided under section 11 of Hindu Marriage Act 1955.  Provides under section 12 of Hindu marriage act. 
The grounds for void marriage are: Bigamy Prohibited relationship Sapnida relationship  The ground for voidable marriage are: Impotence.  Unsoundness, insanity.  Consent by fraud.  Pregnancy before marriage.  
Matrimonial remedies or relief

Divorce under section 13

  • Divorce means putting an end to the marriage by the dissolution of marital relations.
  • Divorce puts the marriage to an end; parties revert to their unmarried status and are free to marry. 
  • The marriage law act [amendment] 1976 makes the grounds of divorce and judicial separation common.

Can divorce proceedings be continued after the death of one of the parties to the marriage? 

 In Vadaslasethi V. Vadalasethi (1994), the court said that the wife could continue the proceedings by bringing the husband’s legal representative on record. 


Grounds available for the dissolution of marriage

Section 13(1) of HMA 1955 deals with fault grounds of divorce available for both husband and wife. 
  1. Adultery: section 13(1)(i) 
  • After solemnizing marriage, one spouse has sexual intercourse voluntarily with a person other than his or her spouse. 
  • It is a criminal offence under section 497 of India Penal Code 1860.
  • One single act of adultery is enough for divorce or judicial separation. 
  • The burden of proof is on the petitioner. 
  • In Vipin Chandra v. Prabha (1957), the court held the burden of proof lie on the petitioner. 
  • Subbaramma v. Saraswati (1966)

2. Cruelty: section 13(1)(ia) 

  • It applies to both parties. 
  • It depends upon the facts and circumstances of the case. 
  • In Russell v. Russell (1897)Cruelty is an act, conduct or behavior which may put life or body under the physical or mental form of danger. 
  •  In Dastane v. Dastane (1970), Cruelty may be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence. 
Types of Cruelty
Act of physical violence by one spouse to another resulting in the injury to the body.  Bhagat v. Bhagat (1994) The Supreme Court held that conduct that inflicts upon another party such mental pain.
Grievous hurt Beating or use force Denial of food, shelter or other physical facilities  Hurt to the sentiments Fear, harassment Depression, high or low blood pressure  

3. Desertion: section 13(1) (ib) 

  • A party to a marriage permanently leaves the other party without any reason and his consent. 
  • Where this situation of desertion continues for more than two years, then it shall be the ground of divorce. 
  • It is a total repudiation of the obligation of marriage. 
  • Desertion under the Hindu marriage Act falls under the category:
    • Actual desertion
      • Facts of desertion
      • Animus deserdendi (intention to desert)
      •  Desertion should be without any reasonable cause. 
      • Desertion should be without the consent of another party. 
      • Desertion continues for two years. 
    • Constructive desertion
      • Desertion is not withdrawal from a place but a state of things, i.e. from cohabitation. 
      • Deserter is the person/ spouse who makes it impossible for another spouse to continue matrimonial relations. 
    • Willful neglect
      • Failure to fulfil the fundamental marital obligation, such as denial of company or denial of marital intercourse or denial, provides maintenance. 
      • In Lachman v. Meena (1964), The Supreme Court said that desertion is a matter of inference to be drawn from the facts and circumstances of the case.
      • Bipin Chandra v. Prabhavati (1957), The Supreme Court said that the party who intends to bring the cohabitation to an end and whose conduct, in reality, causes its termination commits the act of desertion. 
      • Jyotish Chandra v. Meera (1970) 

Desertion may come to an end in the following ways

  • Resume of cohabitation
  • Resume of marital intercourse
  • Supervening animus revertendi or offer of reconciliation. 

4. Conversion to another religion: section 13(1) (ii) 

Two conditions must be satisfied

  • Respondent has ceased to be Hindu. 
  • He has converted to other religions like Christian, Parsi, Muslim, and Jew. 

5. Unsound mind/ insanity: section 13(1) (iii)

  • Mental disorder illness or incomplete development of mind. 
  • Valid grounds for judicial separation or divorce. 
  • Ram Narayan v. Rameshwari (1989), The Supreme Court said that in mental disorder, the petitioner should prove not merely the said mental disorder, but should also establish on that account the petitioner could not reasonably be expected to live with the respondent.
  •  Hema Reddy v. Rakesh Reddy (2002), the mental disorder is a ground of divorce. 

6. Virulent leprosy: section 13(1)(iv) 

  • Infectiona disease caused by an infection that is harmful in effect.
  •  It is incurable. 
  • Leprosy could be of two types:
Mild leprosyMalignant or venomous hip or lepromatous
Capable of treatment.   incurable

7. Venerable disease: section 13(1)(v) 

  • Disease in a communicable form, spread by contact [sexual intercourse].
  • As per section 23(1) (a) of the Hindu Marriage Act 1955, no petitioner could obtain relief if it gave him/her an advantage of his/her wrong. 

8. Renunciation of the world: section 13(1)(vi) 

  • If the respondent has renounced the world by entering into a religious order, the petitioner may ask for a divorce. 
  • Three conditions must be fulfilled:
    • The respondent must have renounced the world.
    •  He must have entered some religious order. 
    • It causes hardship to another. 

In Govind v. Kuldeep (1971), the court held that becoming a chela does not mean that a person has joined a holy order.

9. Presumption of death:  section 13(1) (vii) 

  • According to section 108 of the Evidence Act 1972, a person is presumed to be dead if he is not heard of as alive for seven years or more by those who would have generally heard from him or about him had he been alive. 
  • If the second marriage is performed based on the presumption of death without getting a divorce decree, no person other than the missing spouse can question the validity of the second marriage. 
  • Nirmoo v. Nikkaram (1968) 
Section 13(2) of the Hindu Marriage Act 1955 deals with the wife’s special grounds of divorce
  1. Bigamy ( second marriage of husband) : sent 13(1) (i) 

Marriage solemnized before the commencement of the act that the husband marries again before such commencement or that any other wife of the husband married before such commencement of the act may apply for divorce because another wife of the husband was alive at the time of Solemnization of the marriage. 

2. Rape, sodomy, bestiality: section 13 (2) (ii) 

  • The husband has since the solemnization of marriage been guilty of rape, sodomy or bestiality. 
  • Rape- section 375 of IPC 1860
  • Unnatural offence- section 377 of IPC 1860

3. Non- resumption of cohabitation: section 13(2) (iii) 

The decree has been passed against the husband awarding maintenance to the wife in the suit under section 125 of Code of Criminal Procedure 1973, and after passing of such decree, cohabitation of the parties has not been resumed for one year, or upward decree of divorce would be granted. 

4. Option of puberty: section 13(2) (iv) 

  • Marriage is solemnized before the woman attained the age of 15 years, and she repudiates the marriage after attaining the age of 15 years, but before attaining the age of 18 years, she can apply for divorce whether her marriage was consummated or not. 
  • Bathulla v. Bathulla (1981), Courts can grant the decree of divorce after 18 years. 
  • Kamlesh v. Chamel Singh (1986), The court has held that she does not need to file a petition under section 13(2) (iv) of the act before that date. She could file the petition even after that date. 

Divorce by mutual consent: section 13 B

  • The ground of content by mutual consent was inserted in the Hindu Marriage Act 1955 by an amendment in 1976, by adding section 13B.
  • A petition for divorce by mutual consent may be presented jointly by both the spouse with the following arguments: 
    • They have been living separately for one year. 
    • They are not able to live together.
    • They have mutually agreed to live separately. 
  • It is remarkable here that according to section 23 (1) (bb) of the act, the consent for the petition for divorce by mutual consent must not be obtained by force, fraud under the influence. 
  • After the presentation of the petition, the parties are required to wait for six months through not for more than 18 months, then to move for a motion in which the court granted the divorce. 

But now:

  • In Amaedeep v. Harveen (2017), the court held that a statutory waiting period of 6 months is not mandatory, but directory it will open to the court to exercise its discretion based on facts and circumstances of each case. 

Theories of divorce

  1. Irretrievable breakdown of marriage theory of divorce: (IBM
  • Where there is no chance of compromise and reunion, a marriage must be dissolved based on IBM. 
  • This is not yet a ground of divorce. Law commission 217th report in September 2009 suggested that IBM must be made a ground for divorce. 
  • This has been passed by parliament but lacks the consent of the President. However, Supreme Court used its power under article 142 of the Constitution and granted a divorce on this ground. 
  • Naveen Kohli v. Neela Kohli (2006), The Supreme Court recommended that divorce should be granted on the ground of IBM, where the nature of the dispute is such that it cannot be repaired. 

2. Offense or guilt theory of divorce: 

  • According to theory, a marriage can be dissolved only if one of the parties to the marriage has committed some matrimonial offense after the solemnization of marriage, but the offense must be recognized as a ground of divorce. 
  • Guilt theory requires that the petitioner should be innocent. 

3. Consent theory of divorce:

  • Theory of free divorce. 
  • The parties to the marriage are as free to dissolve a marriage as they are to enter it. 
  • If marriage is a contract of the parties’ free will, the parties should have equal freedom to dissolve it. 
Matrimonial relief

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