Date and Time: Sunday 8 October 2023 4:46:00 PM IST

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Documents (26)

1. Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

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2. Chapter II MARRIAGE
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3. Chapter III THE DOWRY PROHIBITION ACT, 1961
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4. Chapter IV NULLITY OF MARRIAGE
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5. Chapter V RESTITUTION OF CONJUGAL RIGHTS
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6. Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION
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7. Chapter VII FAULT GROUNDS OF DIVORCE
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8. Chapter VIII DIVORCE BY MUTUAL CONSENT
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9. Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE
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10. Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce
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11. Chapter XI Bars to Matrimonial Reliefs
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12. Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS
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13. Chapter XIII PROCEDURE AND JURISDICTION
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14. Chapter XIV The Family Courts
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15. APPENDIX I
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16. APPENDIX II REGISTRATION OF MARRIAGE
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17. APPENDIX III
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18. APPENDIX IV
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19. APPENDIX V

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 Client/Matter: -None-
20. APPENDIX VI
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21. APPENDIX VII RELATED ACTS
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22. APPENDIX VIII
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23. APPENDIX IX
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24. APPENDIX X
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25. APPENDIX XI
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26. APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES
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 Chapter I CONCEPTS OF MARRIAGE AND DIVORCE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

PART I EVOLUTION OF LAW OF MARRIAGE AND DIVORCE FROM SACRAMENTAL

MARRIAGE TO DIVORCE ON IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Under the codifying Acts namely the Hindu Marriage Act, 1955, thehindu Succession Act, 1956, thehindu Minority
and Guardianship Act, 1956 and thehindu Adoptions and Maintenance Act, 1956, the orthodox concept of the term
‘Hindu’ has undergone a radical change and it has been given an extended meaning. These Acts apply not only to
Hindus by birth or religioni.e., converts to Hinduism, but also to a large number of other persons.1

Hindus have, perhaps, from the very beginning of the civilization, regarded marriage as a sacrament, as a tie which
once tied cannot be untied. The Hindu notion of sacramental marriage differs from that of the Christian inasmuch as
the Hindus regard their marriage not merely a sacrosanct and inviolable union, but also an eternal union—a union
which subsists not merely during this life but for all lives to come. Derrett puts it succinctly thus, “the intention of the
sacrament is to make the husband and wife one, physically and psychically, for secular and spiritual purposes, for
this life and for after-lives”.2 The great Hindu sage Manu declared:

The husband is declared to be one with the wife. Neither by sale nor by repudiation is a wife released from her husband.
Only once is a maiden given in marriage.3

The injunction is:

May mutual fidelity continue till death.4

Marriage is an essential samskar for all Hindus. Every Hindu is enjoined to marry, to enter the grihastha-ashrama.5

Manu declared:

To be mothers were women created and to be father men, the Vedas ordain that dharma must be practised by man
together with his wife. He only is a perfect man who consists of his wife, himself and his offspring.1

Husband and wife are enjoined to live in perpetual love, bliss and happiness. A passage in Rig Veda runs:

Be thou [wife] mother of my heroic children, devoted to Gods, be thou queen in thy father-in-law’s household. May all Gods
unite the hearts of us two into one.2

The wife is not just patni (wife) but dharmapatni (partner in the performances of duties—spiritual, religious and
other). Among the Hindus, there are many yagnas (religious and spiritual sacrifices, rites and ceremonies) which a
man without a wife cannot perform. That is why wife is called dharmapatni.3 She is ardhangini, half her husband.4
The concept of the unity of personality in Hindu law is at higher plane, because a wife is not merely the source of
artha and kama but also of dharma and moksha. The Vedas have ordained that dharma must be practised by man
together with his wife.5 According to the Vedas, marriage is a union of “bones with bones, flesh with flesh and skin
with skin, the husband and wife become as if they were one person”.6 In the Dharmashastras, the husband is
referred to by several designations. He is known as Bharta, because he is to support his wife; he is known as pati,
because he is to protect her. Similarly, wife has several names. She is called jaya, because one’s own self is
begotten on her. She is grihini, the lady of the house, sachiva, wise counsellor; sakhi, confidante; she is the dearest
disciple of her husband in his pursuits. She is grihalakshmi, samarajni and ardhangini.1

Thus, Hindus conceived their marriage as a sacramental union, as a holy union, and not as a contract. For a Hindu,
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

marriage is mandatory so that he can discharge his debt to his ancestor—the debt of begetting offspring. Marriage
is also obligatory because without a wife a man cannot perform his religious and spiritual duties.

In sum, for a Hindu, the wife is not just patni or grihapatni but a dharmapatni and sahadharmini. In the words of
Derrett, “In fact, in no other respect are the feelings of Hindus so acutely sensitive as when their concept of, and
belief in, the importance of marriage as an institution are questioned or attacked. This is largely the work of the
Dharmashastra, which after more than two millennia of relentless propaganda, have produced an effect which the
western world unhesitatingly labels puritanical”.2

Occasionally, one comes across a text or two which lay down that in certain circumstances a wife can give up her
husband and take another—the nearest to divorce. The oft-cited text of Narada runs as under:

Another husband is ordained for women in five calamities, namely, if the husband be unheard of, or be dead, or adopts
another religious order, or be impotent, or becomes an outcaste3.

Similarly, there are some texts which allow the husband to renounce his wife (tyaga).4Manu laid down that a
husband could abandon his wife who was blemished, afflicted with disease, or previously defiled or given to him
fraudulently5. It would not be correct to draw inference from these texts that Hindu law allowed divorce. In the words
of Radha Vinod Pal:

It is, however, doubtful whether the text in question referred to divorce in the ordinary sense of the terms6.

It seems that during the Smriti period in some very exceptional cases wife or husband were allowed to give up each
other. But the law became more rigid in the post-Smriti period, and the marriage came to be established firmly as
an indissoluble union1.

However, in several castes and sub-castes, divorce under customs has prevailed from an early Hindu period. Since
customs derogatory to sacred law are allowed to prevail2, customary divorces have been recognised3. Customary
modes of divorce are easy. In some cases marriage can be dissolved by mutual consent. Very little formalities for
dissolving marriage are needed. In most cases, it is purely a private act of the parties. In some communities some
forum is required. It is either a gram panchayat, community panchayat or family council3. Such has been the
importance of customary divorces in Hindu law that even after the reform and codification of Hindu law of marriage,
the customary divorces continue to be recognized4. But customary divorce has been the privilege of the lower
castes; only in a very few high castes divorce by custom has been available.

In India, in the latter part of the 19th century, divorce was introduced by statute for two classes of persons: (i) those
who converted to Christianity and consequent thereof their spouses refused to live with them5, and (ii) those who
were Christians and performed Christian marriage6. But divorce was not yet available to the high caste Hindus
some of whom, under the impact of western education and contact, have enlightened views and preached social
reforms, including enactment of divorce law7.

Although attempts of the enlightened Hindus to introduce divorce in Hindu Law did not succeed at an All-India
level8, these succeeded in an Indian State, Baroda. The Ruler of Baroda and most of those who ran the State
administration were enlightened people. The Baroda Hindu Leganaviccheda Nibandha (Hindu Dissolution of
Marriage Act) was passed in 19319. The Baroda reforms were influenced by the then English matrimonial law, and
the Baroda Act of 1937 (the successor of the Hindu Dissolution of Marriage Act of 1931) is generally based on the
Matrimonial Causes Act, 1937. The dichotomy of innocence and guilt, i.e., one party guilty of a matrimonial fault and
the other innocent, was maintained1.

Although the enlightened Hindu public opinion clamoured for reforms of Hindu law, barring aside a few piecemeal
reforms2, no reforms could be introduced till India became independent. Two provinces of India, Bombay and
Madras, being unsatisfied with the pace of reform at the All-India level, passed divorce laws at the provincial level.
In 1946, the Bombay Prevention of the Hindu Bigamous Marriage Act, 1946 was passed. This was, in 1947,
followed by the Bombay Hindu Divorce Act, 19473.

In 1949, the Madras Province and in 1952, the Saurashtra State passed similar statutes4.

However, attempts at reforming Hindu law and introducing divorce at the All-India level continued. A breakthrough
was made when in 1944 the Hindu Law Reform Committee under the Chairmanship of Sir Benegal Narsing Rau
was constituted1. The Rau Committee submitted its report in 1947 along with a draft Hindu Code Bill, which, inter
alia, contained proposals for introducing divorce along with other matrimonial causes. Although the Committee
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

apparently evolved a uniform Hindu Code applicable to all Hindus by blending the progressive elements of law of
various schools of Hindu law, it evoked tough opposition from the orthodox section of Hindu opinion2. Dr. Ambedkar
as Law Minister prepared a draft code which was introduced in the interim Parliament, but such was the opposition
to these reforms, inside and outside Parliament, (and it cut across party lines) that by September, 1951 only four
clauses could be passed. In 1951, when the interim Parliament was dissolved, the Bill lapsed.

The Hindu law reforms were then, between 1954-56, introduced in the First Parliament of free India, not in the
shape of one Hindu Code but in the form of separate Bills covering five areas of Hindu law, marriage and divorce,
succession, adoption, maintenance, and minority and guardianship3. The rest of Hindu law is still uncodified and
retains all the pre-independence features.

When the Rau’s Draft Code was prepared, the English Matrimonial Causes Act of 1955 was not available to us. But
when the Special Marriage Bill, 1954 and the Hindu Marriage and Divorce Bill, 1955 were introduced, this
knowledge as well as the knowledge of other reforms in western countries including the Soviet Union was copiously
available to us, and we made use of this source material freely, though we retained some of our traditional views
and conservatism, blending them with the western models, so as to suit to our requirements. In the words of
Radhakrishnan:

To survive we need a revolution in our thoughts and outlook. From the altar of the past we should take the living fire and not
the dead ashes. Let us remember that past, be alive to the present and create future with courage in our hearts and faith in
ourselves4.

Further, in the words of the Law Commission:

Hindu law was never static; it was dynamic and was changing from time to time. The structure of any society, which wants
to be strong, homogeneous and progressive, must, no doubt, be steady but not static; stable but not stationary; and that is
exactly the picture we get if we study the development of Hindu law carefully before the British rule in India5.

In matters of law reforms, for the “revolution of thoughts”, mostly English law has been made the base. Yet in
reforming the matrimonial law, a unique conservatism has been adopted; the feeling, the psychosis is that Hindus
are still a very conservative people and would not tolerate any rapid or radical reforms. This feeling pervades the
provisions of Hindu Marriage Act, 1955. In the Hindu Marriage Act, 1955 divorce has been founded on the guilt-
theory, blending it with the traditional conservatism. In the 1955 Act, the three English traditional guilt grounds,viz.,
adultery, desertion and cruelty were not made grounds of divorce but of judicial separation1. Not “adultery” but
“living in adultery” was made a ground of divorce2. After the amendment of 1976, adultery, cruelty and desertion are
grounds of divorce as well as judicial separation3. In the Act of 1955 virulent leprosy, incurable and continuous
insanity, and venereal diseases (all at least of three years’ duration) were made grounds of divorce4. The 1976
amendments have deleted the period from all the three grounds and have reworded ‘incurable and continuous
insanity’ in a manner which brings it at par with English law5. The ground as reworded runs: the respondent has
been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such
kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent6.
Conversion to another religion and renunciation of the world7, as grounds of divorce are to be looked at in the
typical background of Hindu society. Whereabouts of respondent not heard for a period of seven years (or
presumption of death)8is included as a ground of divorce in section 13(1) of the Hindu Marriage Act, 1955. It has
been treated separately in English law9. In the original Act, the eighth and ninth grounds of divorce were also
worded as fault grounds: non-compliance with a decree of restitution of conjugal rights for a period of two years or
more by the respondent, or non-resumption of cohabitation by the respondent for a period of two years or more
after the passing of the decree of judicial separation entitled the petitioner to sue for divorce10. These were the nine
grounds for divorce under the original provisions of Hindu Marriage Act, 1955.

The Hindu Marriage Act, 1955 enacts additional grounds of divorce on which a wife alone can sue for divorce. The
pre-Act polygamous marriage of the husband entitles any wife to sue for divorce provided the other wife (or wives)
of the husband is (are) alive at the time of filing the petition11. The other ground is rape, sodomy or bestiality of the
husband1. The Marriage Laws (Amendment) Act, 1976 had enacted two additional fault grounds for the wife: if a
maintenance order has been passed in favour of the wife under section 18, Hindu Adoptions and Maintenance Act,
1956 or section 125 of the Code of Criminal Procedure, 1973 and since then cohabitation has not been resumed for
one year or upward2, the wife may sue for divorce. The other additional ground is that the marriage of the wife was
solemnized before she was fifteen years3, and that she repudiated the marriage after she attained the age of fifteen
years but before attaining the age of eighteen years, irrespective of the fact whether the marriage was
consummated or not before repudiation4. The child marriages continue to be valid under Hindu law. Even in 1976, it
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

could not be laid down that the child marriage is void or voidable (it is a valid marriage under Hindu law), but
aforesaid relief has been to the child-wife; no relief is still provided to the child-husband.

The other aspect of the fault theory, i.e., the petitioner should be an innocent party, has been enacted in section 23
of the Hindu Marriage Act, 1955. Although we were aware that under English matrimonial law some bars to
matrimonial relief were absolute and others were discretionary, adhering to the conservative stance, all bars have
been made absolute. Thus, the doctrine of strict proof has been enacted, taking advantage of one’s own wrong or
(after the reforms of 1976 this bar does not apply when petition is on the ground of respondent’s insanity),
accessory, connivance, condonation, collusion, improper delay, and a residuary bar,viz., any other legal ground on
which relief may be refused5. Courts in India have applied these bars with the same rigidity with which the English
judge applied them in the late nineteenth and early twentieth century6.

Keeping up with our conservatism, we did not enact divorce by mutual consent in the Hindu Marriage Act, 1955,
though we did enact it as a basis of divorce a year earlier, in thespecial Marriage Act, 19547 which provides facility
of a civil marriage between “any two persons”, i.e., belonging to any community, religion, nationality, or domicile.
The Special Marriage Act, 1954 was enacted for the educated, sophisticated and enlightened urban based
gentlemen and ladies, while the Hindu Marriage Act, 1955 was meant for the vast Hindu masses who still nurtured
and cherished Hindu orthodoxy. But in 1976 it was thought that it was safe to introduce divorce by mutual consent
for Hindus too1. Now divorce by mutual consent can be obtained if in their joint petition, husband and wife show that
they have been living separately for a period of one year, that they have not been able to live together, and that
they have mutually agreed to live separately 2. With a view to avoiding hasty divorces, it has been laid down that
after presentation of the petition the parties have to wait for six months (though not more than 18 months) and then
to move a motion in the court that their marriage be dissolved. The court will grant them divorce only on being
satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been
solemnized and the averments in the petition are true. A special bar to the relief is also enacted: the court has to be
satisfied that the consent of either party has not been obtained by force, fraud or undue influence3.

In 1956, the Royal Commission on Marriage and Divorce submitted its Report4. Chairman Lord Morton and eight
other members of the Commission expressed their opposition to divorce on breakdown. Nine other members of the
Commission were of the view that the traditional fault grounds should be retained but divorce on the ground of
breakdown of marriage should also be made available to some limited extent. [That is what we did by the Hindu
Marriage (Amendment) Act, 1964.] The 19th member of the Commission, Lord Walker expressed his views against
both the divorce on fault grounds and divorce by mutual consent and recommended that “dissolution on breakdown
should be the sole mode of ending the marriage tie”5. The Matrimonial Causes Act, 1959 of the Commonwealth of
Australia provides inter alia, that, either party may sue for divorce if a decree for restitution of conjugal rights is not
complied with for a period of one year. Under the Swedish Marriage Law of 1920, apart from divorce on the ground
of “profound and lasting disruption”, divorce could also be obtained by either party on the ground of non-resumption
of cohabitation for a period of one year after the passing of decree of judicial separation6. In 1964, armed with this
knowledge of comparative law, on a private member’s Bill, two breakdown grounds were introduced in the Hindu
matrimonial law without any ado and without much discussion. This was done by amending sub-section (1) of
section 13 of the Hindu Marriage Act, 1955. Clauses (viii) and (ix) were omitted and sub-section (1A) was inserted.
Sub-section (1A) lays down:

Either party to marriage, whether solemnized before or after the commencement of this Act, may also present a petition for
the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years
or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties, or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two
years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which only they
were parties.

In 1970, an identical provision was enacted in the Special Marriage Act1. By the 1988 amendment to the Parsi
Marriage and Divorce Act, 1936 similar provision has been enacted2.

The 1976 amendments have reduced the period of two years to one year in both the clauses3. The Parsi Law also
provides for a period of one year.

The fundamental assumption of the breakdown principle of divorce is that either party can sue for divorce,
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

irrespective of the fact that one or both the parties are guilty of some or other matrimonial offence. The dichotomy of
innocence and fault is rendered redundant. Divorce is no longer regarded as a reward for marital virtue on the one
side, and a penalty for marital delinquency on the other, but a defeat for both, a failure of the marital “two-in-
oneship”4, and if marriage has irretrievably broken-down, then it is better that the empty shell is destroyed “with
maximum fairness and minimum bitterness, distress and humiliation”5. But the Indian amendments of 1964
introduced the breakdown divorce in the existing framework of the fault theory, and when the provisions came for
interpretation, our courts looked at it in the dichotomy of fault and innocence.

In some early cases the facts were more or less these: the wife obtained a decree of restitution and the husband
filed a petition for divorce after the lapse of the statutory period. It was established that the husband did not either
make any effort to comply with the decree, or, in fact, refused entry to the wife when she knocked at his door. The
courts refused to grant the petition as, in their view, it would amount to giving him advantage of his own wrong
within the meaning of section 23(1)(a) of the Hindu Marriage Act, 1955 (wrong being the non-compliance with the
decree)6.

In later decisions our courts modified their position.7

In Bimla Devi d/o Bakhtawar Singh v. Singh Raj s/o Dasondhi Ram,8 it was held that mere non-compliance with the
decree of restitution of conjugal rights or a mere disinclination to agree to an offer of reunion did not amount to a
wrong disentitling the petitioner to the relief. This view has been confirmed by the Supreme Court1.

After 1964, the English matrimonial law advanced rapidly towards divorce on the ground of breakdown of marriage.
In 1966, the Mortimer Committee (appointed by the Archbishop of Canterbury in 1964) submitted its Report and
recommended that irretrievable breakdown of marriage should be the sole ground of divorce. The Report gave the
following definition of breakdown of marriage: “........ such failure in the matrimonial relationship or such
circumstances adverse to that relationship that no reasonable probability remains of the spouses again living
together as husband and wife for mutual comfort and support”2. A little later, the English Law Commission
submitted its Report and recommended, inter alia, the introduction of breakdown of marriage as a ground of
divorce3. In 1969, the Divorce Law Reform Act was passed which laid down five criteria of breakdown of marriage,
the last one being five years’ living apart by the spouses4. Some bars have also been enacted. Thus, a petition for
divorce on the ground of five years separation may be opposed by the respondent “on the ground that the
dissolution of marriage will result in grave financial or other hardship to him or her and it would, in all circumstances,
be wrong to dissolve the marriage”5. In deciding this question, the court shall consider all the circumstances,
including the conduct of the parties to the marriage, and the interest of those parties and interest of any children or
other persons concerned6.

We also came to know that in 1966, the Commonwealth of Australia and in 1968, the Dominion of Canada also
introduced divorce on breakdown grounds. Under the law of the former, five years’ continuous living separate and
apart by the spouses was considered to be sufficient evidence of breakdown of marriage, provided there was no
likelihood of cohabitation being resumed7. Under the Canadian law, the period of separation is three years8. We
were also aware of the Soviet Family Law of 1944 and 1968 and the West German Law of 1946 which also
recognized the breakdown of marriage as a ground of divorce. Under the Soviet Law, the determination of an
irretrievable breakdown of marriage in each individual case is left to the court. Under the law of the latter, if the
domestic community of the spouses has ceased to exist for three years and where by virtue of the deep-seated and
irretrievable disruption of the matrimonial relationship, the restitution of community of life corresponding to the
nature of marriage cannot be expected, either spouse may apply for divorce1.

With this knowledge of comparative law, when in 1980 our Law Commission submitted its 71st Report, it chose to
rely on the English matrimonial law rather than on any other system of law, though as to the period of separation it
preferred the Canadian matrimonial law. The Commission has not recommended that the existing fault grounds of
divorce and divorce by mutual consent should be abolished, rather it has recommended the introduction of
breakdown ground along with the existing grounds. The Law Commission’s formulation of breakdown ground is as
under:
(1) A petition for the dissolution of marriage by a decree of divorce may be presented to the court by either
party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing such a petition shall not hold the marriage to have broken down irretrievably unless it is
satisfied that the parties to the marriage have lived apart for a continuous period of at least three years
immediately preceding the presentation of the petition.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2), then, unless it is
satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the
provisions of this Act, grant a decree of divorce.
(4) In considering for the purpose of sub-section (2) whether the period for which the parties to a marriage
have lived apart has been continuous, no account shall be taken of any one period (not exceeding “three
months” in all) during which the parties resumed living with each other, but no period during which the
parties lived with each other shall count as part of the period for which the parties to the marriage lived
apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless
they are living with each other in the same household, and references in this section to the parties to a
marriage living with each other shall be constructed as references to their living with each other in the
same household.

Following the English law,2 the bar to matrimonial relief on the ground of irretrievable breakdown of marriage is
recommended as under:
(1) Where the wife is the respondent to a petition for the dissolution of a marriage by decree of divorce on the
ground of irretrievable breakdown of marriage, she may oppose the grant of a decree on the ground that
the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the
circumstances, be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by a virtue of this provision, then—
(a) if the court finds that the petitioner is entitled to rely on the irretrievable breakdown of marriage, and
(b) if apart from this provision the court would grant a decree on the petition,
The court shall consider all the circumstances, including the conduct of the parties to the marriage and
the interests of those parties and of any children or other persons concerned and if the court is of
opinion that the dissolution of the marriage will result in grave financial hardship of the respondent and
that it would in all the circumstances be wrong to dissolve the marriage, it shall dismiss the petition, or
in an appropriate case, stay the proceeding until arrangements have been made to its satisfaction to
eliminate the hardship.

Again, following English law,1 another bar is recommended as under:

(1) the Court shall not pass a decree of divorce on the ground of irretrievable breakdown of marriage unless
the court is satisfied that adequate provision for the maintenance of children born out of the marriage
referred to in sub-section (2) has been made consistently with the financial capacity of the parties to the
marriage.
(2) this section shall apply to—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do
not have the financial resources to support themselves.

The Law Commission has also recommended that section 23(1)(a) of the Hindu Marriage Act, 1955 should not
apply to the breakdown principle. According to the Law Commission, it is desirable that the petition on the ground of
irretrievable breakdown of marriage would be excluded from the scope of section 23(1)(a). The Commission added,
once divorce is decided to be granted on the basis of irretrievable breakdown of the marriage, any allegation that
the fault of a party contributed to the conditions leading to the breakdown should be regarded as irrelevant.

The recommendation of the Law Commission has been accepted by the Government of India and a Bill was
introduced in Parliament. But on account of opposition to the Bill by certain organizations of women, it was allowed
to lapse.
PART II CONCEPT OF MARRIAGE
 Page 7 of 31
Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

Marriage as a Sacrament
Among Hindus.—Manu laid down:

Wife is a divine institution given by Gods.

One should not think that one has obtained her by choice1.
Her unity (with her husband) is established by the Vedas2.
A woman is half of her husband and completes him3.

A women must be honoured by her father, brother, husband, and brother-in-law, who desires their own welfare.
Where women are honoured, the Gods are pleased, but where they are not honoured, no sacred rites yield any
reward4.

Neither by sale nor desertion can a wife be released from her husband, this, we understand is the law ordained by
the creator in former times.5

Let mutual fidelity continue till death, this, in few words, may be considered as the highest Dharma of husband and
wife6.

Let a man and woman united in marriage constantly be beware lest at any time disunited, they violate their mutual
fidelity7.

The objects of a Hindu marriage have been to1 have offsprings,2 to be able to perform religious rites and sacrifices
(which a man can perform only along with his wife) and to have highest conjugal happiness and3 heavenly bliss for
the ancestors and oneself—the achievement of all these objectives are dependent upon the wife. Manu declared
that a man who has not taken a wife has not fully perfected his personality and must be regarded as incomplete and
imperfect. His personality is developed and completed, Manu declared, only upon the union of his wife, himself and
his offspring. This is the significance of unity of personality of man and his wife under Hindu law. Thus, according to
the Grihyasutras, marriage is not a contract but a spiritual union, a holy bond of unity. The words addressed to the
bride after the saptapadi are:

Into my will, I take thy heart, thy mind shall follow mine.

Probably, no other people have endeavoured to idealize the institution of marriage as the Hindus have done. Even
in the patriarchal society of the Rig Vedic Hindus, marriage was considered as a sacramental union. And it
continued to be so in the entire Hindu period, and even in our contemporary world most Hindus regard their
marriage as a sacrament. We find the following passage in the Manu Smriti:

I hold your hand for Saubhagya (good luck) that you may grow old with your husband, you are given to me by the
just, the creator, the wise and by the learned people1.

Manu enjoins on the wife that she should become a paturnuvarte, i.e., she should follow the same principles as her
husband2. According to the Rig Veda:

Be thou mother of heroic children, devoted to the Gods, be thou Queen in thy Father-in-law’s household. May all Gods
unite the hearts of us two into one3.

Wife is also ardhangini (half of man). According to the Satpatha Brahmana: “The wife is verily the half of the
husband4. Man is only half, not complete until he marries.” The Taittiriya Samhita is to the same effect, “half is she
of the husband that is wife”5. From this notion of unity of personality of husband and wife, mutual fidelity of husband
and wife is implied. Manu declared that mutual fidelity between husband and wife is the highest Dharma. Manu
further said that once a man and a woman are united in marriage, they must see that there are no differences
between them, and that they remain faithful to each other6.

In the Shastra, husband and wife are referred to by several names. The husband is known as Bharta, because he is
to support his wife, he is also known as pati, because he is to protect her. On the other hand, the wife is known as
jaya, because one’s own self is begotten on her. According to the Mahabharata, by cherishing woman, one but
virtually worships the goddess of prosperity herself; by afflicting her, one but afflicts the goddess of prosperity7. A
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

man’s half is his wife: the wife is her husband’s best of friends; the wife is the source of Dharma, Artha and Kama,
and she is also the source of Moksha7. In the Ramayana, the wife is said to be the very soul of her husband8. She
is grihani (the lady of the house) in her husband’s household, sachiva (wise counsellor), sakhi (confidante) to her
husband and dearest disciple of her husband in the pursuit of art. She is grihalakshmi, ardhangini and samarajyi.

Side by side with this idealized picture of the wife, the Hindu sages hold in clear terms that husband is “the lord and
master of his wife, he must be adored and obeyed even if devoid of all virtues9.” He must be obeyed as long as he
lives and the wife should remain faithful to his memory even after his death10. He should be worshipped like God
even though he is a man of bad character with no qualities, or a goonda11.

Marriage is one of the essential samskaras (sacraments) for every Hindu. Every Hindu must marry. “To be mothers
were women created and to be fathers men, the Veda ordain that Dharma must be practised by man together with
his wife”1. “He only is a perfect man who consists of his wife, himself and his off-spring” 2. “Those who have wives
can fulfil their due obligations in this world; those who have wives, truly have a family life, those who have wives can
be happy, those who have wives can lead a full life3.

Thus, Hindus conceived of marriage as a sacramental union, as a holy union. This implies several things. Firstly,
the marriage between man and woman is of religious or holy character and not a contractual union4. For a Hindu
marriage is obligatory, for begetting son, for discharging his debt to his ancestors and for performing religious and
spiritual duties. Wife is not merely a grihapatni but also dharmapatni and sahadharmini.

Marriage as a sacramental union implies that it is a sacrosanct union. Hindus conceived of their marriage as a
union primarily meant for the performance of religious and spiritual duties. Such a marriage cannot take place
without the performance of sacred rites and ceremonies. Secondly, a sacramental union implies that it is a
permanent union. Marriage is a tie which once tied cannot be untied. This implies that marriage cannot be
dissolved. Thirdly, the sacramental union means that it is an eternal union: it is valid not merely in this life but in
lives to come. According to Manu, husband and wife are united to each other not merely in this life but even after
death, in the other world. Its implication has been that widow remarriages as a rule were not recognized in Hindu
law. The rule was: “Once is a maiden given in marriage.” “A true wife must preserve the chastity as much after as
before her husband’s death” was the injunction5, the Smritis highly eulogized the woman who kept her husband’s
bed unsullied even after his death. Though the purabhu (remarried woman) is mentioned by sages, she is
mentioned with a reproach. The ideal was that a widow who remains chaste reaches heaven after her death even
though she has no son6, a widow who became unfaithful to her deceased husband had no claim to his property, not
even for maintenance; she may even be ex-communicated7.

As a rule, marriage was considered to be an indissoluble union. It was only in some exceptional cases that the
sages allowed a woman to abandon her husband and take another. Vasistha said: “A damsel betrothed to one
devoid of character and good family or afflicted by impotency, blindness and the like or an outcaste or an epileptic
or an infidel or incurably diseased... should be taken away from him and married to another.” But this text is
confined to betrothal. Narada and Parasara mention five cases in which a woman may abandon her husband and
take another: (a) when the husband is missing, (b) when he is dead, (c) when he has become an ascetic, (d) when
he is impotent, and (e) when he is an out-caste1. Kautilya also says that a woman may abandon her husband if he
is of bad character, if he is absent for a long time, if he has become a traitor, or is likely to endanger her life, is an
outcaste or has lost his virility. There is a difference of opinion among the sages whether a wife could abandon her
husband in the aforesaid cases in all the forms of marriages or whether she could do so only when marriage was in
the unapproved form. However, whatever be the tests on abandonment of the husband by the wife, the
predominant authority is in favour of the indissolubility of marriage.

With the marriage emerging as an exclusive union, the wife’s position was that of the mother of her husband’s
legitimate children, of patrani, or the chief housekeeper and of the superintendent of the female slaves, who were
more often than not, the concubines of husband. With this also emerged institutions of polygamy, concubinage and
prostitution. The marriage became monogamous for the woman alone. It became a sacrament for her alone. A
Hindu marriage was a sacrament in the sense that a wife could never ask for divorce, or for another husband even
if her husband was a lunatic, impotent, leper, a deserter, a chronic patient of venereal diseases, or even a eunuch
or a dead man. As regards the husband, he could always mock at this sacrament with impunity and arrogance by
taking another wife into another and similar sacramental fold; and he could do so as many times as he liked. It is a
different matter that polygamy was not practised by Hindus on a large scale and that it remained a privilege of the
few.

Among Christians.—In the early Roman law (pre-Christian Roman law) marriage and divorce were essentially
private acts. Romans had the same freedom of dissolving their marriage as they had of entering them. No
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

formalities were needed for either. But with the advent of Christianity all over the world, marriage came to be
regarded as sacrament, with its concomitant doctrine of indissolubility of marriage. The Church of Rome became
the supreme ecclesiastical authority in matrimonial matters also. The fact of the matter is that the canon law of
marriage was based partly on Roman law and partly on the Jewish law. The canon law proclaimed and enjoined the
absolute doctrine of indissolubility of marriage. The canon law held that by marriage, man and wife were made of
one flesh by the act of God—marriage being a holy tie, a sacrament. It was a trite saying, “marriages are made in
heaven”. It was, therefore, proclaimed, “What God hath joined together, no man put it asunder”. However, it was not
the Christ who proclaimed this doctrine but it was St. Paul who proclaimed that marriage is a sacramental and
indissoluble union likened the relationship of man and his wife to that of Christ and His Church. Although marriage
still continued to be a contract, it also became a holy and hallowed institution—a mystic union of soul and body
never to be put to an end. A contractual union though valid in law, yet not spiritually complete without the blessing
of the Church. There was no escape from the holy tie of marriage. Only death could put it asunder. According to
Angustine a true marriage might exist where there was vow of fidelity and he said, sooner was the relationship
established better it was.

Entered into by the mutual consent of the parties and on its being consummated, the marriage became complete,
provided there were no impediments to the marriage. The parties to the marriage were treated as “ministers of the
sacrament”.

The Church had always insisted on a public religious ceremony for marriage though, as under pre-Christian Roman
law, marriage continued to be regarded as a private contract between the parties. As a corollary, clandestine
marriages not professed in the Church were regarded as fornication. It became necessary to seek the permission to
marry from the Church—the Bishop, the priest or the deacon. In 1802, celebration of a marriage in the absence of
the Bishop, priest and elders of the people was forbidden. This was the origin of publication of banns, which was
made compulsory by Pope Innocent III. However, clandestine marriages continued to be tolerated by the Church.
Finally a decree of the Council of Trent laid down that for a valid marriage, it was necessary that consent of both the
parties should be declared before three witnesses and a priest.

The Christian marriage being sacrament was indissoluble. Separation from bed and board (a thero et mensa) was
recognized. Parties could live away from each other till life but there was no right to remarry during the life of the
other. Where a marriage had not been consummated, it might be dissolved on the proof of non-consummation on
both the parties taking a religious vow or papal dispensation.

Such had been the development of the Christian marriage that the Church claimed exclusive control over marriage.
The Council of Trent rejected the opinion propounded by Luther and other reformers that marriage should come
under the jurisdiction of civil courts. According to the canon law, both consent and consummation of marriage are
essential for a valid marriage. Marriage as a conjugal union between man and his wife arises only from the free
consent of each spouse, but this freedom relates to the question whether two persons really wish to enter
matrimony, but once they decide to do so, the nature of matrimony is entirely independent from the free will of
spouses. Once entered into, it becomes an indissoluble union.

The medieval Church regarded marriage as a sacrament, as a sacred and divine contract and a holy union. One of
its essential function was to avert and remedy loose living and concupiscence. It was the trite saying: “It is better to
marry than to burn.” Marriages were to be encouraged. In other words, Christianity regarded the institution of
marriage as one which had been ordained and enacted by God, and could not thus be classified as special contract
(otherwise it would be regarded as man made). In reality, marriage is a contract in its formation entered into by the
free volition of the parties to the marriage, but regarded a sacrament in its consequence. In fact, it was in this
manner that the Church succeeded in imposing indissolubility of marriage on the Christians. It was impossible to
visualize as to how a marriage could be dissolved which was regarded as sacred, divine, holy and religious
institution and which came into existence to eradicate fornication and to avoid loose living, sex immorality and
concubinage. Cesti Conupi declared the Christian doctrine of marriage as immutable, inviolable and fundamental
union, marriage being instituted by God and not man—God, being the author of the nature, promulgated the law of
marriage and it was proclaimed by the Christ1. According to him:

Let it be repeated as an immutable and inviolable fundamental doctrine that matrimony was not instituted or resorted by
man but by God, nor by men were the laws made to strengthen and conform and elevate it but by God, the Author of
Nature, and by Christ, our Lord by whom nature was redeemed, and hence these laws cannot be subjected to any human
decrees or to any contrary pact even of the spouses themselves. This is the doctrine of holy scriptures... which declare and
establish from the words of Holy writ itself that God is the author of the perpetual stability of the marriage bond, its unity and
its firmness.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

That meant that the law of marriage was beyond the pale of men’s laws. This was the proclaimed doctrine of Holy
Scriptures which laid down that God was the author of the law of sacramentality and indissolubility of marriage. It
was he who constantly supervised and ordained the stability of marital tie, its utility and firmness 2.

According to St. Augustine, all human institutions were essentially sinful but some were redeemed by the grace of
God. Marriage was such institution, and if man and woman, parties to marriage, chose wrongly, they should take
their cross on their back gladly as a duty owned to God2. The indissolubility of marriage is the logical corollary of the
Christian concept of marriage—marriage being regarded as a sacrament, as God ordained. The marriage had to be
sanctified by a religious ceremony. A religious ceremony performed by a clergy, was the only legal mode of consent
Per Verba de Parsenti. The asceticism of the Christian fathers radically changed the concept of Roman marriage as
a contract into the concept of marriage as a sacramental and indissoluble union. The church exalted virginity as the
highest spiritual state. It was a very desired value. Ironically the marriage in Christianity was reduced from being
regarded as positive good to a lesser evil, fornication being regarded as a sin, and marriage was meant to prevent
it.

The doctrine of annulment of marriage was a necessary by-product of the doctrine of indissolubility of marriage.
Annulment of marriage was a decree passed by the ecclesiastical court which was the supreme upholder of religion
and dispenser of justice. The doctrine of annulment of marriage was based on the notion that no valid marriage was
ever entered into by the parties, as merely undergoing of ceremonies of marriage was not enough. The notion was
that either the marriage was valid forever or never. It is this notion which gave retrospective effect to a decree of
nullity.

In sum, the Christian concept of marriage has been that marriage being obligatory for every human being (except
the churchman), is a sacrament, having being ordained by God, and is an indissoluble solemn union entered into by
the parties with their full and free volition for life so as to prevent fornication (a moral sin) and with a view to
providing safeguards against depopulation. Since it was ordained by God, no one can put it asunder.

The difference between the Hindu concept of marriage and the Christian concept is that the former regard it as an
immutable union, a union for all lives to come, (thus death did not dissolve it) while the latter considered it to stand
dissolved on the death of either party. Both agree that marriage being a sacrament is sacrosanct and inviolable
union. Thus no divorce was permitted.

It was the Reformation which effected changes in the concept of marriage and which made the Christian world
divided into Catholics and Protestants. The Protestants started considering the marriage as a dissoluble union and
subject to the jurisdiction of the civil courts, while the Catholics continued to adhere to the notion of indissolubility of
marriage, and the Church continued to have firm jurisdiction over it.

Once the Protestant world came to consider marriage as a dissoluble union and under the jurisdiction of civil courts,
great strides were made with the Industrial Revolution which firmly took the view that marriage is a civil contract,
which is dissoluble under certain circumstances.

No other people regarded their marriage as a sacrament.

Marriage as a Contract
Among Christians.—English law, from the very beginning, adhered to the notion of spousal consent to the
marriage. The ecclesiastical took the view that though in its formation marriage was a contract, in its consequence it
was a sacrament. With the Reformation, the Protestant world came out with the notion that marriage was a civil
contract and matrimonial matters were subject to the jurisdiction of civil courts; ecclesiastical court having no
jurisdiction over them. The marriage thereafter also came to be regarded as a dissoluble union. Thus, the
Reformation brought about a fundamental change of attitude toward marriage among the Protestants.

The Industrial Revolution’s lofty ideas of liberty, equality and pursuit of happiness gave a further impetus to liberate
marriage from the fetters of the Church. Once marriage was accepted as a contract, it was next logical step to
consider it as dissoluble union. Marriage came to be recognized as a human institution based on the free volition of
men and women who were undoubtedly responsible, though not infallible individuals. They can err; they can
blunder1. They should be given the right and liberty to get over the burden that had become intolerable, and which
was sapping the vital energy and moral fibre of the spouses to a marriage that had failed. As in other human affairs
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

so in marriage, people should have the opportunity to rectify their errors. The dissolubility of marriage is also the
manifestation of the individualistic philosophy—the pursuit of happiness. This philosophy propounds the notion that
each individual is entitled to live his life as cheerfully and happily as he or she chooses. He has the right to develop
those conditions and situations which tend to help him to live happily and to develop his personality, talent,
capacity, capability and potentialities. This freedom implies freedom to correct his errors; to rectify his blunders in
choosing his or her life partner, by getting a marriage dissolved which has failed; he has liberty not to enter into
matrimony and he has liberty to get out of it. The propounders of this philosophy hold that marriage is no doubt a
bond, a civil contract, but it is not a bondage, a slavery in the garb of super-imposed sacramentality and
indissolubility of marriage bond.

Thus, we find that the Catholics continued to uphold and follow the ecclesiastical doctrinaire view of sacramentality
and indissolubility of marriage, while the Protestants became liberated and propounded the notion of contractuality
and dissolubility of marriage. They regarded marriage as essentially man-made in contradistinction of the Catholic
view which continued to hold that marriages were made in heaven.

Yet, the Protestants though regarded their marriage as contract, they regarded it as a special contract. It was not
equated with a commercial contract. They asserted that marriage being a social institution, there was social interest
in its preservation and protection. Marriage, though dissoluble, can be dissolved only in those cases where a party
to the marriage by his act or omission fundamentally undermined it. The marriage thus became dissoluble in case
of a inevitable failure of marriage on account of recurring mischief or atrocious conduct of the one party to the
marriage against the other party. Later on, these came to be known as grounds of divorce.

Among the Indian Christians, marriage is regarded as a civil contract, though it is usually solemnized by Minister of
religion licensed under the Christian Marriage Act, 1872. It can also be solemnized by the Registrar of Marriages.

Among Hindus.—Hindu sages considered the institution of marriage more sacred and religious than worldly and
secular. It was last of the ten sacraments necessary for every male Hindu. It was the only sacrament prescribed for
women. The supreme marital objective was to procreate a son, who could redeem the father from hell, who could
succeed to his property and who could avoid extinction of the line. The Hindu sages did lay down qualifications and
qualities of bride and bridegroom in detail. But consenting mind was not insisted upon. A marriage was not
rendered null or void or even voidable in the absence of consent on the part of either party to marriage or even on
the part of both the parties to marriage. Such was the insistence on the sacramental aspect of the marriage, that
consenting mind was not insisted upon, and its absence for any reason was immaterial. Marriage being a
sacrament and indissoluble union, no emphasis was placed upon the contractual aspect of marriage. Although
some Western scholars like Strange took the view that the essence of the rite of marriage consisted in the consent
of parties, that of the man on one side and, on the other, of the father or whosoever gave away the bride, yet the
lunatics and minors were allowed to be married and their marriage was valid1. It was also evident that the consent
of the bride was never taken. Whether consent of the bridegroom was ever taken is doubtful. One may take
consolation by one or two isolated texts, such as the following from the Vyavastha Chandrika: “Marriage among us
Hindus though essentially a religious sacrament... partakes also of the nature of a civil contract.” In reality, Hindus
did not consider their marriage as a contract. When piecemeal reforms were introduced in India during the Raj,
marriage did not become a contract, rather courts took the view that marriage of lunatics and idiots was valid.1

Now that under the Hindu Marriage Act, 1955, divorce is recognized, yet one cannot say that marriage has become
a contract or has still remained a sacrament.

Sections 5, 11 and 12 of the Act are the pertinent provisions. Section 5 deals with the conditions of marriage.
Clause (ii) of the section deals with mental capacity. Clause (iii) lays down that at the time of the marriage “the
bridegroom has completed the age of twenty-one years and the bride the age of eighteen years”. The age of
marriage and soundness of mind relate to the consensual element of marriage. If marriage is looked upon as a
contract, consent of both the parties is a condition precedent to marriage. The contract of a minor or of a person of
an unsound mind is void. This is what section 11 of the Contract Act, 1872, lays down. Should the same test be not
applicable to marriage, if marriage is regarded as a contract? But the fact of the matter is that marriage of a person
who is of unsound mind is a valid marriage under the Act. Not merely this, the violation of the requirements of
clauses (ii) and (iii) does not render the marriage void. Under section 12, the violation of the former requirement
renders the marriage merely voidable, while violation of the latter condition does not render the marriage void or
voidable: the marriage, if performed, is a perfectly valid marriage. It is a well-established rule of law of contract that
a contract for want of capacity is totally void, it is void ab initio. Thus, it is amply clear that the Hindu Marriage Act,
1955 does not consider the question of consent as of much importance. It does visualize that persons incapable of
giving valid consent, or persons suffering from mental disorder or recurrent attacks of insanity and epilepsy should
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

not marry. It does desire that persons below certain ages should not marry. But it is not serious about it either. It
does not attach the same consequence which are attached to the violation of such condition in an ordinary contract.
In respect of non-age, the Act adopts a policy of overlooking. It maintains a continuity with the old Hindu law under
which such marriages were valid. The only effort, as under the Sharda Act, is to try to restrain or prevent such
marriages. But if such marriages take place, they are considered to be valid marriages. Thus a marriage without
consent is valid. A consenting mind is even now not a condition precedent to a marriage. This is the inevitable result
of the combined reading of sections 5, 11 and 12 of the Hindu Marriage Act, 1955. Apart from clauses (ii) and (iii),
section 5 does not speak of consent. Nor do sections 11 and 12 speak of consent, though section 12(1)(c) does lay
down that in case consent of either party to the marriage or the consent of the guardian of marriage, wherever
necessary, is obtained by fraud or force, the marriage is voidable. The result is this: If one shows that one’s consent
was not obtained, the marriage is nonetheless valid, if one shows that consent was obtained by fraud or force, the
marriage is voidable at the instance of the party whose consent was so obtained.

It may be argued that when two persons undergo the ceremony of the marriage, consent may be implied. It may be
asserted that is it not evident from the fact of undergoing the ceremonies and rites of marriage that consenting mind
was there? The argument, put in this manner, apparently appears to be plausible. But the question is: If, in a given
case, a party is able to prove that he or she did not consent, can a declaration of nullity of marriage be obtained
from a court of law? It is submitted that no such declaration can be obtained under the Act. This means that despite
the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid.

Then, could it be said that Hindu marriage continues to be a sacrament? It has been seen that the sacramental
marriage among Hindus has three characteristics: it is a permanent and indissoluble union, it is an eternal union,
and it is a holy union. It is evident that the first element has been destroyed by the Act: divorce is recognised. The
second element was destroyed in 1856 when the widow remarriage was given statutory recognition. Probably, to
some extent the third element is still retained. In most of the Hindu marriages a sacred or religious ceremony is still
necessary. But the ceremonial aspect of the sacramental marriage is of least importance.

From the above, it may be concluded that the Hindu marriage has not remained a sacramental marriage and has
also not become a contract, though it has semblance of both. It has a semblance of a contract as consent is of
some importance; it has a semblance of a sacrament as in most marriages a sacramental ceremony is still
necessary.

Among Muslims.—Muslims have, from the beginning of Islam, regarded their marriage as a contract. A Muslim
marriage has been defined as a civil contract the objective of which are two: (i) legalization of sexual intercourse,
and (ii) procreation of children. It has never been treated as a sacrament, though it is usually solemnized with the
recitation of verses from the Koran. But, it may be emphasised, Islam does not prescribe any religious service,
ceremonies or rituals as essential for the solemnization of Muslim marriage1. Shama Charan Sircar rightly said:

Marriage among the Muslims is not a sacrament but purely a civil contract2.

The fundamental concept of individual liberty and responsibility, which is a cornerstone of Muslim jurisprudence, is
incorporated even in the institution of marriage. In Muslim law, marriage depends upon the free volition of the
parties concerned, so does its dissolution, though the wife’s volition in this regard is subordinated to that of the
husband, since the Muslim jurists subscribe to the notion that of the two partners, the husband, on account of his
physical and intellectual superiority, has to play a dominant role, and the wife is therefore, subordinated to him, so
much so that she practically enjoys no marital freedom. Some theorists treat the dower as consideration for the
alienation of her marital freedom1. Wedded as it is to the notion of wife’s subordination to the husband, Muslim
jurisprudence confers on the husband almost absolute power of divorcing his wife, but denies like freedom to the
wife, and consequently, the wife can obtain divorce only when the husband agrees to her proposal, and she either
forgoes her dower, or gives him something in return for his consent, to release her from the marital bond. It is in this
context that Schacht observed: “Marriage (nikah; zawi the husband; zawaja the wife) is a contract of civil law, and it
shows trace of having developed out of the purchase of the bride; the bridegroom concludes the contract with the
legal guardian (wali) of the bride, and, he undertakes to pay the nuptial gift (Mahr sadak) or ‘dower’ ... not to the wali
as was customary in the pre-Islamic period, but to the wife herself”2Wilson defines a Muslim marriage as “a contract
for the purpose of legalizing sexual intercourse and the procreation of children”3. Fitzgerald goes to the extent of
saying that “although a religious duty, marriage is emphatically not a sacrament. There are no sacraments in Islam.
Nor is it a coverture”4. Judicially, Mahmood, J., defines a Muslim marriage as a civil contract, upon the completion
of which by proposal and acceptance, all the rights and obligations, which it creates, arise immediately and
simultaneously5. The learned judge further observed: “Marriage among Muhammadans is not a sacrament, but
purely a civil contract and though solemnized generally with recitations of certain verses from the Koran, yet the
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

Muhammadan law does not positively prescribe any service peculiar to the occasion6. On the other hand, Abdul
Rahim says that a Muslim marriage is both in the nature of ibadat, devotional act, and muamalat, a dealing among
men7. Krishna Iyer, J., concurs with the view. In his paper, “Reform of the Muslim Personal Law”, he said: “The
impression that a Muslim marriage is a mere contract and not, therefore, sufficiently solemn or sacred is another
fallacy of the Hindu and Western student”8.

Human beings, at some stages of the development of the institution of marriage, have attached some sanctity—
some going to the extent of calling it a sacrament, a permanent union, just as Hindus and Christians did—to
marriage and to that extent a Muslim marriage, too, may be called an ibadat but the most remarkable feature of
Muslim jurisprudence is, that even at the beginning of the development of their juristic thought, they squarely
considered the marriage essentially as a civil contract—a concept which developed in the western world fully only
after the Industrial Revolution. That of the two partners to a marriage, it accorded dominant position to the husband,
was, but natural at the stage in the development of human society which was starkly patriarchal. Thus, it is
submitted that in its formation the Muslim marriage is essentially a contract, though in its dissolution the dominant
position of the husband is recognized.

Among Parsis and Jews.—Among the Parsis and the Indian Jews the marriage is regarded as a contract.

In a Parsi marriage though a religious ceremony, known as ashirbad is mandatory for its validity, it is essentially
regarded a contract: consenting mind is essential. A Parsi marriage is solemnized by a Parsi priest in the presence
of two witnesses, with the ceremony of ashirwad. The word “ashirwad” literally means “blessings”—it is a prayer or
exhortation to the parties to observe their marital obligations.1

The Indian Jews also regard their marriage as a contract, though a religious ceremony is essential. In a Jew
marriage a written contract, called katuba, between the parties is essential for the validity of marriage2.

Compulsory Registration of Marriage

Except in States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh, the registration of
marriages is not compulsory in any of other States.

In the view of this, the Supreme Court held in a recent case3 that if the record of the marriage is kept, to a large
extent the dispute concerning solemnization of marriages between two persons can be avoided. In most cases,
non-registration of marriages affects the women to a great measure. If the marriage is registered, it provides
evidence of the marriage having taken place and would also provide a rebuttable presumption of valid marriage
having taken place. Though the registration itself cannot be a proof of valid marriage per se, and would not be the
determinate factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of the custody
of children, rights of children born from the wedlock of the two persons whose marriage is registered, and the age of
parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily
registrable. Therefore, marriages of all persons who are citizens of India, belonging to various religions, should be
made compulsorily registrable in their respective States, where the marriage is solemnized. In this case the
Supreme Court had given direction to all States and Union Territories to file compliance report. States of Andhra
Pradesh, Bihar, Chhattisgarh, Goa, Madhya Pradesh, Karnataka, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil
Nadu, Tripura complied with directions. But some States and Union Territories chose to be quite whereas some
States filed report only with respect to Hindus. The court had further granted a period of 3 months for the
compliance.4

Directions in respect of same were issued.

The registration of marriages would come within the ambit of the expression “vital statistics” in Schedule VII, List III,
Entry 30 in Constitution of India.

In Najma, Sirajudeen Musliyar v. Registrar General of Marriages/Deputy Director of Panchayath1, the petitioner was
aggrieved by non-acceptance of an application for registration of marriage by the respondent. Husband was citizen
of United Arab Emirates. It was held that personal appearance of parties is not necessary for presentation of
application. All marriages solemnized in the State are compulsorily registrable under Rule 6 irrespective of religion
of parties. The rule nowhere states as to the nationality of the parties. Muslim law also does not forbid a Muslim girl
marrying a foreign Muslim. Non acceptance of application held improper. However, registration is not a conclusive
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proof. Marriage registration certificate is not the substantial proof of Hindu Marriage if one of the parties repudiates
the same.2

Marriage between STS is Custom

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 the determination of the civil rights of the parties including their status, the 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. Article 20 of the Constitution of India, guaranteeing protection
in respect of conviction of offence, 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. Law under Article 13 clause (3) of the
Constitution means the law made by the Legislature including intra vires statutory orders and orders made in
exercise of powers conferred by the statutory rules.3

From these grounds and, parties to the marriage are being two tribals, who otherwise profess Hinduism and their
marriage being out of the purview of Hindu Marriage Act, 1955, their marriage is governed by usage or customs of
Santhal.
PART III THEORIES OF DIVORCE

Such has been development of the law of dissolution of marriage that even when it came to be established that
marriage is a civil contract and a dissoluble union, marriage could not be dissolved like any other civil contract. The
reasons were several. Most of them, socio-metaphysical. It has been asserted that though marriage is a contract
between the parties to it, it is also a social institution, in the protection and preservation of which there is a social
interest. The hang-over of indissolubility of marriage continued. When in 1857, the first Matrimonial Causes Act was
passed and the jurisdiction over matrimonial matters was transferred from ecclesiastical courts to civil courts, the
ground of divorce was only one1. Husband could seek divorce only on the ground of wife’s adultery, but wife could
not seek divorce on the simple adultery of her husband. She was required to show incestuous adultery, or bigamy
with adultery, or rape, sodomy or bestiality, or adultery coupled with such cruelty as without adultery would have
entitled her to divorce a mensa et thoro or adultery with desertion without reasonable excuse for a period of two
years. It was later on that desertion and cruelty2 were added as grounds of divorce, and either party was permitted
to seek divorce on the ground of simple adultery3 of the other person. Insanity was also added as a ground of
divorce2.

The judiciary, from time to time, pours the contents of divorce theory according to its contemporary experience. The
Supreme Court on 21st March, 2006 took a serious view of the total disappearance of substratum in the marriage in
a case before it and ordered its dissolution and also recommended the Union of India to seriously consider bringing
an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for
the grant of divorce.4

Offence or Guilt Theory.—The grounds of divorce may be looked at from two aspects: (i) Marriage is an exclusive
union and if it is not an exclusive union, it ceases to be marriage. Adultery destroys the very foundations of
marriage. Marriage also implies that parties will live with each other in harmony and in mutual confidence. Cruelty,
or an apprehension of cruelty, undermines this basic requirement of marriage. Basic assumption of marriage is that
both the parties will live together; if one party deserts the other, this basic assumption no longer exists. Thus,
adultery, cruelty and desertion are destructive of the very foundation of marriage. Divorce on these grounds merely
enables the other party to put to an end the form, from which substance has already been destroyed. (ii) Looked at
from another angle, these grounds are the matrimonial offences committed by one of the parties to marriage. These
are akin to the notion of criminality. In that sense, divorce is regarded as a mode of punishing the guilty party who
had rendered himself or herself unworthy of consortium. This gave rise to the guilt or offence theory of divorce.

In the early law of England, in most of the Commonwealth countries and in most States of the U.S.A., the offence
theory was considered to be the most appropriate basis of divorce. According to this theory, a marriage can be
dissolved only if one of the parties to marriage has, after the solemnization of the marriage, committed some
matrimonial offence. The offence must be one that is recognized as a ground of divorce. This implies that the
parties, though free to enter into a wedlock, are not equally free to get out of it. The marriage could be dissolved
only on certain grounds prescribed by law. The guilt theory, on the one hand, implies a guilty party, i.e., commission
of matrimonial offence on the part of one of the parties to the marriage, and, on the other hand, it implies that the
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

other party is innocent, i.e., in no way a party to, or responsible for, the offence of the guilty party. This principle was
taken very far in English law, so much so that if both the parties, independently of each other, committed
matrimonial offences, the marriage could not be dissolved. For instance, if a petition is presented on the ground of
respondent’s adultery and it is established that the petitioner is also guilty of adultery, then the petitioner cannot be
allowed divorce. This is known as the doctrine of recrimination. One of the Chief Justices of England caustically
remarked: “Perhaps it is not vouchsafed to everybody, whether in Holy Orders or out of them, to appreciate the full
beauty of the doctrine that if one of the two married persons is guilty of misconduct there may probably be divorce,
while if both are guilty they must continue to abide in the holy state of matrimony.” English law has now abandoned
this position.

Since the guilt theory requires that the petitioner should be innocent, the English law evolved the doctrine of bars to
matrimonial relief—discretionary bars and absolute bars. This means that even if a petitioner is able to establish a
ground of divorce to the satisfaction of the court, he may not get divorce if one of the bars is proved against him.
Under English law the absolute bars are: connivance, acquiescence in the misconduct of the respondent,
condonation and collusion. (Collusion was made a discretionary bar by the Act of 1963.) The discretionary bars are:
petitioner’s own adultery, cruelty, unreasonable delay, conduct conducing to the respondent’s guilt, and the like.
The existence of an absolute bar is fatal to the petition, while in the case of discretionary bars the court may
exercise, or refuse to exercise, its discretion in favour of the petitioner. The modern English law has abandoned
practically all these bars1.

It has been seen that in early English law adultery, cruelty and desertion were the only three grounds of divorce 2.
Later on insanity was added as a ground of divorce3. Insanity did not fit in within the framework of guilt or
matrimonial offence theory, as the party suffering from insanity could hardly be called a guilty party. It is a
misfortune rather than a misconduct. This led to renaming of the guilt theory as fault theory. If one of the parties has
some fault in him or her, marriage could be dissolved, whether that fault is his or her conscious act or providential.
In some systems of law, there exists several grounds of divorce. Sentence of imprisonment for a specified period,
whereabouts of a party not been known for a specified period by the other party, wilful refusal to consummate the
marriage, leprosy, venereal diseases, rape, sodomy, bestiality, etc., have come to be recognised as grounds of
divorce. Some systems also include grounds like incompatibility of temperament.

The Divorce Act, 1869 adopted grounds of divorce as in the then existing English Law. Section 7 of the Act
[repealed by the Indian Divorce (Amendment) (51 of 2001)] permitted courts to apply principles and rules of English
matrimonial law as nearly as possible. The grounds of divorce were still1 the same as existed in 1869 in England. A
marriage might be dissolved on the petition of husband on the ground of wife’s adultery and on wife’s petition on the
ground that the husband had changed his religion and had married again, or had been guilty of incestuous adultery,
or bigamy with adultery, or marriage with another woman with adultery2, or adultery coupled with cruelty, or adultery
coupled with desertion without reasonable cause for a period of at least two years, or of rape, sodomy or bestiality.

Since Parsi law does not recognize annulment of marriage (voidable marriages) some of the traditional grounds of
annulment of marriage have been made grounds of divorce. A Parsi marriage may be dissolved on any one of the
following ten grounds3: Wilful refusal to consummate the marriage by the defendant, even though one year has
elapsed since its solemnization; the defendant was of unsound mind4at the time of marriage and continues to be so
till the filing of the suit which should be filed within three years of marriage and the plaintiff should not have been
aware of the defendant’s insanity at the time of marriage; pre-marriage pregnancy of the defendant (the
requirements are the same as under Hindu law). These three grounds relate to pre-marriage impediments. The rest
of the grounds relate to post-marriage guilts or faults. These are: that defendant committed adultery, fornication,
bigamy, rape or an unnatural offence (petition on any one of the grounds should be filed within two years of the
knowledge of the act); that defendant caused grievous hurt to the plaintiff or infected her with venereal diseases or
compelled (when defendant is husband) her for prostitution (the suit must be filed within one year of the infliction of
grievous hurt, knowledge of the infection or cessation of last act of prostitution, as the case may be); that defendant
is undergoing a sentence of imprisonment for seven years or more for an offence under the Indian Penal Code
(petition cannot be filed before the expiry of at least one year’s imprisonment); at least two years desertion, non-
resumption of marital intercourse for a period of two years or more after of an order granting separate maintenance
to the plaintiff; the defendant has ceased to be Parsi, though a suit will not be allowed if it is filed two years after the
knowledge of defendant’s conversion. Insanity and cruelty on the same pattern as under the Hindu Marriage Act,
1955 were added as ground of divorce by the amending Act of 1988.

The Special Marriage Act, 1954 as amended by the Marriage Laws (Amendment) Act, 1976 recognizes eight
grounds based on guilt on which either party may seek divorce and two additional grounds on which wife alone may
seek divorce,viz., rape, sodomy or bestiality of the husband. The eight grounds are: adultery; desertion for at least
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

three years; respondent undergoing a sentence of imprisonment for seven years or more for an offence under the
Indian Penal Code, 1860; cruelty; venereal disease in a communicable form, leprosy (only if the disease was not
contracted by the respondent from the petitioner); incurable insanity or continuous or intermittent mental disorder1
of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent,
and presumption of death (respondent not been heard of as alive for a period of seven years or more).

The Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 lays down seven
grounds, based on guilt theory of divorce; adultery; conversion to a non-Hindu religion; incurable insanity or mental
disorder2; virulent and incurable leprosy; venereal disease in a communicable form; taking to sanyasa (i.e.,
renunciation of world by entering into a holy order) and presumption of death; and four additional grounds on which
wife alone can sue for divorce (see Chapter VII of their work).

All the aforesaid four statutes recognize the usual bars to matrimonial relief of English law. Doctrine of strict proof,
collusion and unreasonable delay bar all reliefs. The residuary clause that there should be no other legal ground for
refusal of relief has been enacted in all statutes except the Divorce Act, 1869. Condonation, connivance and
accessory apply to all grounds under the Parsi Marriage and Divorce Act, 1936. Under the Hindu Marriage Act,
1955, condonation applies to cruelty and adultery, while connivance and being accessory apply only to adultery.
The same is the position under thespecial Marriage Act, 1954. All the three bars apply to adultery under the Divorce
Act, 1869. Under the Divorce Act, 1869 petitioner’s own adultery, cruelty or desertion are bars to relief; and
resumption or continuation of cohabitation is essential to constitute condonation. Thehindu Marriage Act, 1955
contains something akin to English law’s ‘conduct conducing’ and lays down that the petitioner should show that he
or she is not taking advantage of his own wrong or disability. The bar does not apply when annulment of marriage is
sought on the basis of respondent’s insanity. Under the Parsi Law, bars are: condonation, collusion, connivance,
accessory and delay. These bars apply to all grounds of divorce, (fault grounds as well as breakdown grounds), but
not to divorce by a mutual consent, and nullity and judicial separation3.

In sum, the offence theory stipulates for two things: (i) a guilty party, i.e., the party who has committed one of the
specified matrimonial offences, and (ii) an innocent party, who has been outraged and who has played no role in
the criminality or the matrimonial offence of the other party. If the purpose of the divorce law was the punishment of
the guilty party, then it was natural to lay down that the other party should have no complicity in the guilt of the
offending party. If the petitioner’s hands are not clean, he cannot seek relief. It is a different matter that the English
courts took this principle to its logical end so much so that it looked absurd and provoked a Chief Justice of England
to remark that perhaps it was not vouchsafed to everybody, whether in Holy Orders or out of them, to appreciate the
full beauty of the doctrine that if one of the married persons is guilty of misconduct they may be properly divorced,
while if both were guilty they must continue to abide in the holy state of matrimony. This is a reference to doctrine of
recrimination.

This dichotomy of matrimonial offence and innocence led not merely to the evolution of matrimonial offences but
also to the matrimonial bars. Such are the notions of matrimonial offence and matrimonial innocence that the
burden of proof of both is on the party who seeks relief. English law classified these bars to matrimonial reliefs into
discretionary bars and absolute bars1. The existence of the absolute bar was fatal to the matrimonial petition, while
in the case of discretionary bars, the court had a discretion and it might exercise in favour of the petitioner, or it
might refuse to do so. Under Indian law all bars are absolute bars.

Consent Theory.—After the installation of fault theory as the basis of divorce in the West, it was realized that a
marriage very often fails not because of the fault or guilt of any party to the marriage, but it may fail for no fault of
either party. A married couple realizes that they are finding it difficult to pull on together; they have tried hard to
make the marriage a success, but all their efforts have failed. It is not that they are wicked people or bad persons.
They are average human beings who have, some how or the other, not been able to pull on together. In such a
case, only alternative for them is to get out of the matrimony. But they cannot do so. The fault theory requires that
one of them (and only one of them) should be guilty of some matrimonial offence, then and then only the marriage
can be dissolved. Then it was thought that divorce by mutual consent was the answer to this problem. It was
asserted that freedom of marriage implies freedom of divorce. The parties who have the freedom to marry each
other should have equal freedom to divorce each other.

Thus as against the guilt theory, there has been advocated the theory of free divorce or the consent theory of
divorce. The protagonists of this theory hold the view that parties to marriage are as free to dissolve a marriage as
they are to enter it. If marriage is a contract based on the free volition of parties, the parties should have equal
freedom to dissolve it. Just as an individual may err in entering into some other transaction, so also he or she may
err in entering into a marriage. The argument may be summed-up thus: it may happen that two parties who have
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

entered into a marriage with free consent, later on, realize that they made a mistake, and, for one reason or
another, are finding it difficult to pull on together smoothly and to live together harmoniously. It is not because they
are wicked, bad or malicious people. They are just ordinary average human beings, but it has just happened that
their marriage has turned out to be a bad bargain, and they find it impossible to continue to live together. Should
they have no right to correct their error, to cast off a burden which has become onerous, intolerable and which is
sapping the vital fluid of life and eating into its very vitals? It is not merely their physical life, it is also their entire
family life, including moral life, which is affected. If from this situation they have no way out, they are likely to go
astray, may be, willy-nilly, one is forced to commit a matrimonial offence, may be one, out of sheer frustration,
murders the other. Such an unhappy family is a breeding ground for delinquent children. In short, continuance of
such a marriage is neither in the individual nor in the social interest. Thus, it is argued, that freedom of marriage
implies freedom of divorce, then and then only can mutual fidelity continue, can real monogamy exist. Angles
observed:

If only marriage that are based on love are moral, then only those are moral in which love continues............ A definite
cessation of affection, or its displacement by a new passionate love, makes separation a blessing for both parties as well as
for society. People will only be spared the experience of wading through the useless mire of divorce proceedings1.

The very basis of marriage is mutual fidelity, and if for any reason the parties feel that mutual fidelity cannot
continue, they should have freedom to dissolve the marriage, as only by dissolution, fidelity can be preserved.
Divorce by mutual consent means that the law recognizes the situation that has existed for some time and in effect
says to the unhappy couple: “If you think that your marriage cannot continue and if you both are convinced that it
should be dissolved, the marriage will be dissolved.” The main criticism of the consent theory is that it will bring
about chaos and will lead to hasty divorce. The protagonists of consent theory deny this. In the words of Lenin:

As a matter of fact, freedom of divorce will not breakdown the relationship in the home, but, on the contrary, it will
consolidate it on the basis of democracy, that is, on the only possible solid basis of a civilized society.

Thus, it is maintained that freedom of divorce will not lead to chaos. It will neither lead to immorality. In the words of
Tillet:

No deductions about the standard or morality in any country can be drawn from the fact that they recognize divorce by
mutual consent, except perhaps, to refute the charge that divorce by mutual agreement necessarily means widespread
licence or immorality 2.

The advocates of this theory hold that the freedom of divorce will bring about more happy marriages, and reduce
the number of unhappy one. It will help both the husband and the wife to live in harmony and consolidate the unity
of the family, so that they may fully engage in their career. Since there is freedom of divorce, both man and woman
are forced to take a very serious and sincere attitude towards marriage. One will be very careful before marriage,
lest one should repent, and one will also be frank and honest, so that one is not regretful later.

Soon after the Revolution, the Soviet Union introduced this theory in the family law. In the People’s Republic of
China, in most of Eastern-European countries, Belgium, Norway, Sweden, Japan, Portugal and in some Latin
American States divorce by mutual consent is recognized in one form or the other. At home, the Special Marriage
Act, 1954, and the Hindu Marriage Act, 1955 (after the amendment of 1976) recognize divorce by mutual consent.

Under Muslim law also, divorce by mutual consent is recognized in two forms: (i) Khul, and (ii) Mubbaraat. The word
Khul literally means “to put off”. In law it means laying down by a husband of his right and authority over his wife for
an exchange1. In the words of the Fatwa-i-Alamgiri, “when spouses disagree and are apprehensive that they cannot
observe the bounds prescribed by the divine law, that is, that they cannot perform the duties imposed on them by
the conjugal relationship, the wife can release herself from the tie by giving up some property in return, in
consideration of which the husband is to give her divorce. Khul, is a divorce with consent but at the instance of the
wife in which she gives or agrees to give a consideration to the husband, and when they have done this, dissolution
of marriage results2. Thus, Khul is a divorce with consent but at the instance of the wife in which she gives or
agrees to give a consideration to the husband for release, i.e., gives up her right to dower or gives some other
property to her husband3. It is evident that the Khul is more in the nature of a divorce by purchase, since giving
some consideration by the wife for her release from the marital bond is an essential aspect of Khul.

In Khul the desire for divorce emanates from the wife, while in mubbaraat aversion is mutual; both parties desire
dissolution of marriage. Mubbaraat denotes the act of freeing one another mutually, and the proposal for divorce
may emanate from either spouse. But even in mubbaraat wife has to give up her dower or part of it.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

It is apparent that both forms of divorce by mutual consent confer a benefit on the husband, as he can make his
wife agree to give up her claim to dower or give him some other property in consideration of his agreeing to release
her. Otherwise he may not agree to divorce.

The main criticism of the consent theory is two-fold: (i) it makes divorce very easy, and (ii) it makes divorce very
difficult. It has been said that divorce by mutual consent offers a great temptation to hasty and ill-considered
divorces. More often than not, parties unnecessarily magnify their differences, discomforts and other difficulties,
which are nothing but problems of mutual adjustments, and rush to divorce court leading to irrevocable
consequences to the whole family. This criticism has been met by the law of many countries which recognize
divorce by mutual consent by providing several safeguards. Under the modern English law, the Matrimonial Causes
Act, 1973, the consent theory has been accorded recognition by laying down that if the parties have lived apart for a
continuous period of at least two years, immediately preceding the presentation of the petition, divorce may be
granted by the mutual consent of the parties.

Under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, no petition for divorce can be ordinarily
presented before a period of one year has elapsed since the solemnization of marriage.

Section 28 of the former and section 13B of the latter Act provides that a petition for divorce by mutual consent may
be presented to the District Court by both the parties together, on the ground that they have been living separately
for a period of one year or more, that they have not been able to live together and that they have mutually agreed
that the marriage should be dissolved. A further safeguard to the hasty step is provided by laying down: “On the
motion of both the parties made not earlier than six months and not later than eighteen months after the
presentation of petition” (in case the petition has not already been withdrawn) “the District Court shall, on being
satisfied, after hearing the parties and making such enquiry as it thinks fit, that a marriage has been solemnized
under the Act and that the averments in the petition are true, pass a decree dissolving the marriage.”

A similar provision has been made in Parsi Marriage and Divorce Act, 1936 by the amending Act of 19881.

The other criticism of the theory is that it makes divorce very difficult. Since divorce by mutual consent requires the
consent of both the parties and if one of the parties withholds his/her consent, divorce can never be obtained. It
may happen that one of the parties to marriage may not give his or her consent for divorce on account of a belief in
the indissolubility of marriage, or on account of sheer malice, bigotry or avarice, then divorce can never be
obtained.

Thus, it became necessary to find an alternative to the consent theory also. But in countries like England where it
was found difficult even to replace fault theory with consent theory, much less to introduce irretrievable breakdown
of marriage theory, two modes were found to mitigate its rigour. Firstly, some countries went on enlarging the fault
grounds of divorce so much so that “incompatibility of temperament” or “profound and lasting disruption” were made
grounds of divorce.

The second course adopted was to give a very wide interpretation to some fault grounds. Cruelty was found to be
most handy ground which could be moulded into any shape. Some States of the United States of America went to
the extent of saying that if husband snored during the night thus disturbing the sleep of the wife, it amounted to
cruelty. Gradually, cruelty was given such a wide interpretation that it virtually amounted to recognition of
breakdown theory of divorce.

In Gollins v. Gollins2, the wife soon after the marriage found out that her husband was heavily indebted at the time
of the marriage and his farm was also heavily mortgaged. The husband was not in a position to provide
maintenance for her. It was she who had to lend money to her husband from time to time to pay off pressing debts.
The wife ran a guest house for elderly people: husband did not contribute anything. In short, husband did nothing to
help her; he could have obtained paid employment but did not care to get it. The husband, however, did nothing at
any time to cause any physical harm to the wife. Under these circumstances, the wife brought an action for divorce
on the averment that she could not stand the strain of his debts and that her husband had wilfully neglected to
provide reasonable maintenance to her and children. On these facts the husband was held guilty of persistent
cruelty. Lord Reid observed:

This appears to me to be a plain uncomplicated case of a husband fully responsible for his conduct, knowing that he was
injuring his wife’s health and yet persisting in it, because he was so selfish and lazy in his habits that he closed his mind to
the consequences.
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His Lordship further observed:

If the conduct complained of and its consequences are as bad that the petitioner must have a remedy, then it does not
matter what was the state of respondent’s mind.

The question again came in Williams v. Williams1, where the wife filed an action for divorce on the ground that the
husband persistently accused her of adultery as a consequence of which her health had been injured. The husband
was a mental patient and therefore insanity was taken as a defence. Rejecting the husband’s plea, the House of
Lords allowed the wife’s petition. After discussing Macnaghten rules and rejecting them, Lord Reid said that if he
was to choose between two clear-cut alternatives, either insanity was a defence or it was not. His Lordship further
observed:

In my judgment decree should be pronounced against such an abnormal person not because his conduct was aimed at his
wife, nor because he must be deemed to have foreseen or intended to harm he did, but simply because the facts are such
that after making all allowance for his disabilities, and for the temperaments of both parties, it must be held that character
and gravity of his acts was such as to amount to cruelty. And, if that is right for an abnormal person, see no good reason
why the same should not apply to an insane person2.

Lord Evershed pertinently observed that the main question when cruelty was alleged was to give protection to the
suffering spouse. Lord Pearce expressed himself thus on the matter:

The argument for holding that a man should not be held to have treated his wife with cruelty if he did not know what he was
doing has an attractive simplicity. But so to hold would create a dividing line which in practice is not easy to apply (even
with medical help), which will at times make the courts powerless to help when help is most needed, and which will cause
more hardship than it alleviates. It is not the dividing line which has been drawn in criminal cases, or is it that which has
been drawn in cases of contract...for divorce cases it is of little practical justification1.

Thus, the scope of the cruelty—one of the fault grounds—has been so much widened by judicial interpretation as to
include virtually the breakdown principle.

Further strides in this direction were made in English law by statutory reforms. The Matrimonial Causes Act, 19632
removed ‘collusion’ from absolute bars and placed it among the discretionary bars3. This resulted in the acceptance
of several collusive agreement which virtually implied acceptance of divorce by mutual consent of the parties1.

The English Court of Appeal took the view that in the exercise of court’s discretion in favour of the petitioner, the
breakdown of marriage was the key. In Masarati v. Masarati2, husband committed adultery with an unmarried
woman, having two children by her. Later he discontinued that association and made another adulterous
association. Parties had a fourteen year old daughter who was living with the wife. The wife petitioned for divorce
on the ground of husband’s adultery with the named first woman and in a frank discretion statement, sought the
discretion of the court in respect of adultery which she herself had committed with a married person. The trial court
refused to exercise its discretion in favour of the wife. On appeal Sachs, L.J., said that this was a case in which
insufficient attention was placed on the facts that there was a complete breakdown of marriage and it is one of
those cases where it was very difficult to say that public interest would be served by keeping these two people
together. Earlier his Lordship observed:

Today, we are perhaps faced with a new situation as regards the weight to be attached to one particular factor—that is, the
breakdown of marriage3.

These decisions paved the way for the reception of the irretrievable breakdown of marriage theory.

Irretrievable Breakdown of Marriage Theory.—The basic postulate of breakdown theory is that if a marriage has
broken down without any possibility of repair (or irretrievably), then it should be dissolved, without looking to the
fault of any party. To put it in different words: the problem that the modern world is facing is this: a marriage has
broken down irretrievably, parties are not willing to come together and co-habit as husband and wife. Then should
we not recognize this fact of breakdown of marriage? Should we insist to find out the party at fault and insist that
divorce will not be granted at his instance but at the instance of the other party, provided the latter is innocent? Or
suppose, when both parties are at fault, then should we say that no divorce will be granted to any party? Or, if we
find out no party is at fault but marriage has nonetheless broken down, should divorce be refused in such a case?
The breakdown theory holds the view that what we are concerned with is the fact of breakdown of marriage; if a
marriage has broken down irretrievably, then divorce should be granted, as there is no use perpetuating a structure
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

from which substance has disappeared. It is not going to serve any purpose, even if we are able to find out the
guilty party. Thus the law recognizes an unhappy or ugly situation and says to the couple, or one of the parties to
the marriage, petitioning for divorce:

If you can satisfy the court that your marriage has broken down irretrievably, and that you desire to terminate a situation
that has become intolerable to you, then your marriage shall be dissolved whatever may be the cause.

In 1964, the Archbishop of Canterbury appointed a Committee under the Chairmanship of Dr. Mortimer, Bishop of
Exeter, to go into the matter. The Mortimer Committee in its report recommended that the breakdown of marriage
should be the sole ground of divorce, replacing all the fault grounds. The Committee clearly stated that where a
marriage breaks down, it is wrong to think in terms of guilty party and innocent party. The report stated that divorce
is not—though hitherto in English law this had been the dominant notion—”a reward for marital virtue on the one
side and a penalty for marital delinquency, on the other,” but “a defeat for both, a failure of the marital ‘two-in-
oneship’ in which both its members, however unequal their responsibility, are inevitably involved together”. The
Committee defines breakdown of marriage as “such failure in the matrimonial relationship or such circumstances
adverse to that relationship that no reasonable probability remains of the spouses again living together as husband
and wife for mutual comfort and support”1. However, the Committee recommended that relief should not be given in
the following four cases: (i) When the maintenance proposed would not in the court’s judgment be just to the
dependent spouse or the children of the family; (ii) when the conduct of the petitioner in regard to the marriage was
found to be such that in the court’s judgment making of a decree would be against the public interest; (iii) when the
court is not satisfied with the provision made for the care and upbringing of any child of the marriage under the age
of sixteen; and (iv) when there was collusion between the parties 2. The Committee recommended that breakdown
of the marriage should be the sole ground and would supersede all others. Under this ground, divorce could be
obtained if it was shown that the marriage had broken down completely. In such a case, marriage will be dissolved
even when the other party objects to dissolution, except when the petitioner had not only been patently responsible
for ending the common life but had blatantly flouted the obligation of marriage and treated the other party
abominably3. These observations clearly indicate the hang-over of the offence theory of divorce.

The English Law Commission also submitted its report on the matter (it is interesting to note that the Law
Commission waited for the report of the Mortimer Committee before submitting their own report). The Commission
in its report began by saying that objectives of good divorce law are two: one, to buttress, rather than to undermine,
the stability of marriage, and two, “when regrettably, a marriage has irretrievably broken down, to enable the empty
shell to be destroyed with the maximum fairness, and minimum bitterness, distress and humiliation”1. The
Commission put forth three proposals, leaving Parliament free to opt for any, though the Commission felt that this
should be in addition to and not in substitution for the present law of matrimonial offences.

The three proposals of the Law Commission are: (a) Breakdown without inquest: that is to say breakdown of
marriage as evidenced by six months’ separation. The Commission said that divorce based on breakdown of
marriage involves the determination of the following four questions: (i) Has the marriage broken down? (ii) If so, is
there any reasonable prospect of reconciliation? (iii) If not, is there any reason of public policy, including in
particular, justice to the parties and children, why the particular marriage should not be dissolved? (iv) If so, what
are the appropriate consequential arrangements to be made regarding the parties and children? (b) Divorce by
consent. This was suggested as a feasible proposal if the following two conditions are satisfied: (i) It should be
restricted where there were no dependent children (The Soviet law of 1968 recognizes divorce by mutual consent
only when there are no children of the marriage); and (ii) other grounds of divorce remained available. (c) Divorce
on the ground of separation. This has two aspects: one a shorter period of separation, say two years, in a case
where the other party consented to divorce; the other a longer period of separation, say, five to seven years, where
the other party did not consent.

The Divorce Law Reform Act, 1969 substantially accepted the third alternative proposal of the Law Commission. It
also accepted the recommendation of the Mortimer Committee in as much as it accepts only one single ground of
divorce. But curiously enough, what has been done is this that indirectly the three traditional fault grounds of divorce
too have been retained. The Mortimer Committee’s recommendation is incorporated in section 1, which lays down
that after the commencement of the Act the breakdown of the marriage shall be the sole ground of divorce. Section
2 formulates certain criteria of breakdown; these are: (a) adultery of the respondent, but then the petitioner has also
to establish that on this count he finds it impossible to live with the respondent; (b) cruelty of the respondent; (which
is stated in the following terms: the respondent has behaved in such a way, that the petitioner cannot reasonably be
expected to live with the respondent); (c) two years desertion; (d) two years living apart of the spouses, provided
the respondent agrees to divorce (this is the English version of divorce by mutual consent); and (e) five years living
apart of the spouses (in this consent or non-consent of the respondent is immaterial) 2. This is the English law
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version of irretrievable breakdown of marriage as a basis of divorce. Section 2 of the Matrimonial Causes Act, 1973
lays down something in the nature of condonation and clarification in respect of the first three facts of breakdown of
marriage [from sub-section (1) to sub-section (5)]1. Sub-section (6) explains the meaning of living apart: “...a
husband and wife shall be treated as living apart unless they are living with each other in the same household”.
Section 3 of the Matrimonial Causes Act, 1973 enacts the three years bar (or fair trial to marriage clause) in the
same manner as it had existed in earlier Matrimonial Causes Acts2. However, a petition for divorce on the ground of
five years separation may be opposed “on the ground that the dissolution of marriage will result in grave financial or
other hardship to him and that it would in all circumstances be wrong to dissolve the marriage”3. When the petition
on the ground of five years separation is opposed, the court shall consider all the circumstances, including the
conduct of the parties to the marriage and the interest of those parties and of any children or other persons
concerned, and if it is of opinion that the dissolution of the marriage will result in grave financial or other hardship to
the respondent and that it would, in all circumstances, be wrong to dissolve the marriage, it shall dismiss the
petition4.

Under the Act, the court has a duty to attempt reconciliation5. The Matrimonial Causes Act, 1973, makes adequate
provisions for financial relief for parties to marriage and children of the family6.

In Australia also in 1966, the breakdown principle was accepted as a ground for divorce. Five years separation is
considered to be evidence of breakdown of marriage. Thus divorce may be obtained on the ground that—

......... the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of
not less than five years immediately preceding the date of petition, and there is no likelihood of cohabitation being
resumed7.

However, a clarification is made: “The parties to a marriage may be taken to have separated notwithstanding that
the cohabitation was brought to an end by the action or conduct of only one of the parties, whether constituting
desertion or not”8.

Earlier in some States of the Commonwealth of Australia, the breakdown principle had existed in a different form.
The law of South Australia laid down that if a decree of restitution of conjugal rights is not complied with for a period
of three years, then either party could obtain divorce. In the State of New South Wales a similar provision existed,
but no period was provided. The matter was left for the courts, and the courts laid down that a minimum period of
21 days must expire from the date of decree of restitution, before a petition for divorce could be made. The court
had discretion to extend this period. The Matrimonial Causes Act, 1959 of the Commonwealth of Australia provides
that if a decree of restitution of conjugal rights is not complied with for a period of one year, then either party may
seek divorce. A provision on these lines can also be found in the Swedish Marriage Law of 1920. Two interesting
grounds under this law are: both the spouses may present a joint petition for separation decree on the ground of
“profound and lasting disruption” and the court has to accept the application without examination. Such an
application may also be made by one of the spouses and separation decree will be granted if the court finds that in
fact there is a profound and lasting disruption of marriage. Further, a divorce could also be obtained on the ground
that the parties have not resumed cohabitation for a period of one year or more after a decree of judicial separation.
The New Zealand law of 19211 and at least eighteen States of the United States also contain a similar ground. In
Scandinavian countries breakdown theory is now fully accepted.

In 1964, on the basis of the Australian Matrimonial Causes Act, 1959, on a private member’s Bill, breakdown
principle was enacted in the Hindu Marriage Act by remodelling clauses (viii) and (ix) of section 13(1) and
numbering the provision as section 13(1A). The provision runs as under:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition
for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year
or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year
or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were
parties.

Similar provision has been made in the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

The Indian Law Commission also recommended, as an additional ground of divorce, that a marriage could be
dissolved on the basis of three-years’ separate and apart living. Incorporating the recommendations a Bill was
introduced in Parliament, but it lapsed. (We have discussed this aspect of the matter in Part I of this Chapter.)

Soon after the Revolution, the Soviet Union accorded recognition of consent theory of divorce in its fullness. Parties
were allowed to dissolve their marriage by private act, without recourse to a court of law. But soon the Soviet Union
found that the experiment did not succeed, and in 1944 it introduced the irretrievable breakdown of marriage theory
in its matrimonial law—marriage dissoluble only at the intervention of the court. The Soviet version of irretrievable
breakdown of marriage lays down that if either party to a marriage can convince the court that the marriage had
broken down irretrievably, that is beyond all possibilities of repair, a decree dissolving the marriage would be
passed. Whether or not a marriage has broken down irretrievably was left to be determined in each individual case.
No legislative criterion was laid down.

The Supreme Court on 21 March, 2006 in a sensitive judgment recommended the Central Government for
amending the Hindu Marriage Act to include “irretrievable breakdown of marriage” as a ground for divorce.1

Muslim Law
The irretrievable breakdown of marriage divorce theory has been judicially discovered under Muslim Law of India
and Pakistan.

In 1945, the Lahore High Court held that a wife is not entitled to a decree of divorce on the ground of incompatibility
of temperaments or her hatred for her husband2. In 1971, Krishna Iyer, J., of the Kerala High Court said: “Daily
trivial differences get dissolved in the course of time and may be treated as the teething troubles of early
matrimonial adjustment. While the stream of life, lived in married mutuality, may wash away smaller pebbles, what
is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation we have a
breakdown of the marriage itself and the only course left open for law is to recognize what is a fact and accord a
divorce”3. And a new look is given to the texts of Muslim Law, and textual support has been discovered for this
view. It is interesting to note that a Full Bench of a Pakistani High Court has put across the same theme, though
more guardedly. It observed, “It is only if the judge apprehends that ‘the limits of God will not be observed’, (this is a
Koranic text), that is, in their relations to one another, the spouses will not obey God, that a harmonious married
state, as envisaged by Islam, will not be possible then he will grant a dissolution”4. And earlier, the same view was
propagated by Tyabji, C.J., in Noorbibi v. Pir Bux5. “There is no merit in preserving intact the connection of marriage
when the parties are not able to, and fail ‘to live within the limits of Allah’....” Tyabji, C.J., further observed that from
the earliest times, Muslim wives have been entitled to divorce when it was clearly shown that (i) instead of being a
reality, a suspension of marriage had in fact occurred, and that (ii) the continuance of marriage involved injury to the
wife. The learned Chief Justice remarked that when Muslim Law allows divorce to the wife on the ground of
husband’s non-payment of maintenance, it was not because divorce was by way of punishment of the husband, or
was a means of enforcing wife’s right of maintenance, but, as an instance, where cessation or suspension of the
marriage had occurred. Thus was laid the foundations of the breakdown theory of divorce1.

There are two traditions from which support is sought for this view: (a) first is from the Prophet himself. When one of
his wives, Ashma, asked for divorce from the Prophet, the Prophet granted her request. (b) One Jamila appeared
before the Prophet and said that though she had no complaints to make against Sabit, her husband, as to his
morals or religion, she could not bring herself to be wholeheartedly loyal to him as a Muslim wife ought to be as she
hated him, and, therefore, requested the Prophet to grant her divorce, since she did not want to live in Kufr
(disloyalty). The Prophet enquired of her whether she was willing to give him back the garden that he had given her
and her agreeing to do so, the Prophet sent for Sabit, and asked him to take back the garden and grant her divorce
2. (This tradition is also quoted in support of Khul.) The basic Koranic text in support of this proposition is: “And if ye

fear a breach between husband and wife, send a judge out of her family, and a judge out of his family; if they are
desirous of the agreement, God will effect a reconciliation between them; for God is knowing and apprised of all”3.
There are a few more traditions which support this view. When a couple which found it difficult to pull on together,
approached the Prophet, he said: “Let the case be referred to two Muslim arbitrators; and they shall see whether
reconciliation or separation is desirable; and their decision shall be binding upon them both.” On another occasion,
the Prophet pronounced: “If a woman be prejudiced by a marriage, let it be broken off.”

On the basis of these Koranic texts and the traditions of the Prophet and agreeing with the above-quoted
observations of Tayabji, C.J., Krishna Iyer, J., in Yousuf Router v. Souromma, remarked that he was impressed with
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

the reasoning of Tayabji, C.J., as it accorded well with the Islamic texts and the ethos of the Muslim community,
which together, served as a back-drop for the proper understanding of the provisions of the Dissolution of Muslim
Marriage Act, 1939. The learned judge also observed that in Islam “the sanctity of family life was recognized; so
was the stubborn incompatibility between the spouses as a ground for divorce; for it is intolerable to imprison such a
couple in quarrelsome wedlock. While there is no rose but has a thorn if what you hold is all thorn and no rose,
better throw it away. The ground is not conjugal guilt but actual repulsion.” Although Krishna Iyer, J., repeatedly
uses the word “incompatibility”, what he actually means is this: if a marriage has broken down beyond the possibility
of repair, it is better to put it as under.

It is submitted, whether or not there is real textual authority for the view propounded by Tayabji, C.J., formatively,
and more fully by Krishna Iyer, J., (in a judicial system which is avowedly wedded to the doctrine that the function of
the judge is merely to interpret the law and not to lay it down, a progressive judge with a view to giving a modern
twist and progressive look to ancient system has no option but to resort to such subterfuges, which may, in a
situation like this, be considered as a legitimate judicial instrument), it accords well with the modern trends. In a
uniform civil code which is the cherished constitutional goal, if we have a single ground of divorce, viz., that the
marriage has broken down irretrievably, the scope of any controversy is ruled out.

Thus, now there are the following two breakdown grounds of divorce:—
(a) non-payment of maintenance by the husband, irrespective of the fact whether the failure has resulted on
account of the conduct of the wife. [This is based on the interpretation of clause (ii) of section 2 of the
Dissolution of Muslim Marriage Act, 1939].
(b) when there is “total irreconcilability between the spouses”, or, if we may use the term current in the modern
matrimonial law of western countries, the marriage has broken down irretrievably or beyond the possibility
of repair1.

Today in the countries of world, we find that divorce on the basis of irretrievable breakdown of marriage has three
modes.

First, the laws of some countries provide that if a marriage has broken down irretrievably, it may dissolved on the
petition of either party to the marriage. In this mode, the determination of the question whether or not a marriage
has broken down is left to the court. In other words, Legislature does not lay down any criterion of breakdown of
marriage. In each individual case, the court determines as of fact whether a marriage has or has not broken down
beyond all possibility of repair. If the court finds that marriage has de facto broken down irretrievably, it passes a
decree dissolving the marriage.

This mode of irretrievable breakdown of marriage principle was also recognized under the West German Marriage
Act, 1946.

Secondly, the laws of some countries lay down the criterion of breakdown of marriage and if that is established, the
marriage is dissolved on the petition of either party to the marriage. For instance, the petitioner must show that
before the presentation of the petition, he and respondent have been living separately from each other for a
specified period. Living separate and apart from each other for that duration goes to establish that marriage had
broken down irretrievably. Thus, the Matrimonial Causes Act, 1973 lays down that prior to the presentation of the
petition if the parties have lived separate and apart for a period of five years, divorce would be granted on the
petition of either party. Under the Canadian law, the period of separate living is three years, while under the
Australian law it is five years. The West German Marriage Act, 1946 laid down that if the domestic community of the
spouses had ceased to exist for three years, and where, by virtue of deep-seated and irretrievable disruption of
matrimonial relationship, the restitution of community life corresponding to the nature of marriage could not be
restored, either spouse might apply for divorce. The West German Act further laid down that where the spouse who
had made the application for divorce had been overwhelmingly responsible for the disruption of the matrimonial
community, the other spouse might object to the dissolution of marriage. The court would reject the objection if it is
found that the continuance of the marriage was morally unjustified after making a proper estimate of the character
of the marriage and the total behaviour of both spouses. But dissolution of marriage would not be granted if the
properly understood interest of minor children of the union demanded continuance of the marriage.

Thirdly, the basis of irretrievable breakdown of marriage, the criteria are two: (a) non-compliance for a specified
period with the decree for restitution of conjugal rights, and (b) non-resumption of cohabitation for a specified or
certain duration after the passing of decree for judicial separation. In both the above versions, either party may sue
for divorce, as non-compliance with a decree for restitution of conjugal right or non-resumption of cohabitation after
a decree for judicial separation for certain duration amounts to breakdown of marriage irretrievably. Thus, the
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

matrimonial law of South Australia provided that divorce could be obtained by either party if a decree for restitution
of conjugal rights had not been complied with for a period of three years. The matrimonial law of New South Wales
had a similar provision, but no period of non-compliance was laid down. The matter was left to be determined by the
court, and the court laid down as a matter or guidance a period of 21 days after the decree had been passed. The
Matrimonial Causes Act, 1959 of the Commonwealth of Australia provides that if a decree of restitution of conjugal
rights remained uncomplied with for a period of one year, either party may sue for divorce. In the Swedish Marriage
Law of 1920, it was laid down that if parties had not resumed cohabitation for a period of one year or more after a
decree of judicial separation, either party might seek divorce. Under the Hindu Marriage Act, 1955 and thespecial
Marriage Act, 1954 the period is one year—both in the case of non-compliance with the decree of restitution of
conjugal rights as well as in the case of non-resumption of cohabitation after the decree of judicial separation.

Unique aspect of the Hindu Marriage Act, 1955; thespecial Marriage Act, 1954 and the Parsi Marriage and Divorce
Act, 1936 (as amended in 1988) is that all the three modes of divorce—fault, mutual consent and irretrievable
breakdown of marriage—are available. While under Muslim law, wife can sue for divorce on fault grounds as well as
on the basis of irretrievable breakdown of marriage. Muslim law also recognizes divorce by consent in the terms
discussed above. But the Christians can sue only on the basis of certain specified fault grounds. Divorce for Jews is
still customary. The customary mode of divorce is also available to Hindus in addition to divorce on other basis
mentioned in the Act1.

Phenomenal Increase in Divorce Cases

It is disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial
separation. An apprehension is gaining ground that the provisions relating to divorce has led to such a situation. In
other words, the feeling is that statute is facilitating breaking of homes rather than saving them. This may be too
wide a view because actions are suspect. But that does not make the section invalid. Actions might be bad, but not
the section. The provisions relating to divorce categorises situations in which a decree for divorce can be sought
for. Merely because such a course is available to be adopted, should not normally provide a ground to persons to
seek divorce, unless the marriage has irretrievably broken.1

Matrimonial Cases a Basic Human Problem: Duties of Members of Bar

The members of Bar should treat every complaint of harassment and demand of dowry filed by wife against her
husband and his relatives, as basic human problem and must take serious endeavour to help parties in arriving at
amicable solution of that problem.2

1 Commissioner of Wealth Tax, Madras v. Late R. Sridharan, (1976) 4 SCC 489 : (1976) 104 ITR 436 : 1976 (Supp) SCR
478.
2 J. Duncan M. Derrett, A Critique of Modern Hindu Law, Bombay, (1970), p. 287.
3 Manu Smriti, IX, 48.
4 Manu Smriti, IX, 102.
5 The Hindus have divided human life into four ashramas or stages, first is the brahmacharya ashrama (studentship), the
second the grihastha ashrama (life of householder), the third the vanaprastha ashrama (life of a recluse) and the last is
sanyasa ashrama (the life of renunciation).
1 Manu Smriti, IX, 96.
2 Rig Veda, IX, 85. The Atharva Veda enjoins that the husband and wife should live in love just as the birds chakva and
chakvi live. (According to Hindu mythology this species of birds is an ideal of life. The male and female birds live
together and if one dies, the other also dies of heartbreak) (Atharva Veda, XVI, 2.64). A passage in Yajur Veda runs:
For knowledge, wealth, power, food and fame and activity and issue, they (husband and wife) should try; he is the
samrat (endowed with virtue and power), she is swarat (self-controlled and knowing), protecting each other. They
should together make progress (Yajur Veda. 13.55). At the time of ceremony of marriage, when the bridegroom holds
the hand of the bride, he says to her, “I hold your hand for saubhagya (good luck), that you may grow old with me, your
husband; you are given to me by the just, the creator, the wise, and by these learned persons”. (Manu Smriti, VIII, 227).
The wife is enjoined to be paturnuvarte, i.e., she must follow the same principles as does her husband. On taking the
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

seventh step of marriage (Saptapadi, i.e., taking seven steps, is an essential ceremony for Hindu marriage), the
husband tells his wife, inter alia, “Be, thou my life-mate as we walk up seven steps together, thus thou go together with
me for ever and for ever....”
3 Thus Manu declared that the due performance of the religious rites, faithful worship, performances of yagnas, the
highest conjugal happiness, and the heavenly bliss for ancestors and oneself—all depend upon the wife. (Manu Smriti,
IX, 64-68). Manu further declared that the man who has not taken a wife has not fully perfected himself, his personality
is incomplete and imperfect. (Manu Smriti, IX, 45).
4 According to the Satapatha Brahmana, “The wife is verily the half of the husband”. (Satapatha Brahmana, V. I, 6.10).
The Taittiriya Samhita is to the same effect, “Half is she of the husband that is wife”. (Taitiriya Samhita, III. 1.2.57).
5 The Grihyasutras lay down that marriage is a spiritual union, a holy bond and therefore after Saptapadi, the man says
to his wife, “Into my will I take thy heart, thy mind shall follow mine”. It is further said that those who have wives can fulfil
their due obligations in this world; those that have wives truly have a family; those that have wives can lead a full life.
6 Shyama Charan Sarkar Vyavastha Chandrika, Vol. II, p. 480.
1 Mahabharata, Anu Parva, 47, 1-13. See also the Ramayana, 23-24. This also means that the husband is “the Lord and
master of his wife, he must be adored and obeyed even if devoid of all virtues”. He must be obeyed as long as he lives
and the wife should remain faithful to his memory even after his death: Manu Smriti, V. 147-54; Yajnavalkya Smriti, I,
75; Vishnu Smriti, XXV, 13-13.
2 Hindu Law—Past and Present, (Calcutta), 1957, p. 82.
3 Narada, XII, 93; to the same effect is a text of Parashara, II, 27.
4 Manu laid down that a wife who is disrespectful to the husband who is addicted to some evil passion, is a drunkard, or
diseased, may be abandoned for three months and deprived of her ornaments, etc. (Manu Smriti, IX, 80). Idea,
probably, was that within three months she might repent and improve herself. Manu also provided for the supersession
of a wife who took spirituous liquor, was of bad conduct, rebellious, diseased, mischievous or wasteful. (Manu Smriti,
VIII, 90); Yajnavalkya, I, 80, is to the same effect. Kautilya’s Arthashastra, Ch. 72, 188, also provides for certain cases
in which a marriage may be terminated.
5 Manu Smriti, IX, 27. See also Manu Smriti, VII, 205.
6 History of Hindu Law, (Calcutta) 1959, 58, 375. Kane also takes the same view (History of Dharmashastra, Vol. II, Part
I, p. 611). He observed, “...divorce in the ordinary sense of the word, i.e., divorce a vinculo matrimonii has been
unknown to the Dharmashastras and to the Hindu society for about two thousand years (except on the ground of
custom among the lower castes). Even when the husband was allowed to abandon the wife for her lapse, still she was
entitled to at least starving maintenance. Therefore, abandonment (tyaga) was not only not divorce a vinculo matrimonii
at all, but was not even a divorce a mensa et thoro (separation from bed and board)”. (History of Dharmashastra, Vol.
II, Part II, p. 620).
1 Kane History of Dharmashastra, Vol. II, Part I, p. 620.
2 Collector of Madura v. Mootoo Ramalinga Sethupati,(1868) 12 MIA 397.
3 Paras Diwan, Customary Law, (Chandigarh), 1993 Chapter IX. Banerjee, Goorudas Law of Marriage and Stridhan, 1st
Edn., (Calcutta), 1879, pp. 242 ff.
4 Section 29(2) of the Hindu Marriage Act, 1955.
5 Native Converts Marriage Dissolution Act, 1866.
6 Indian Divorce Act, 1869. It was also made applicable to those persons who married under the Special Marriage Act,
1872.
7 Derrett Critique of Modern Hindu Law (Bombay), 1970, p. 293.
8 Dr. H.S. Gour, a liberal Hindu member of the Central Legislature, introduced a Hindu Divorce Bill several times between
1928-1933 but every time the Bill was rejected.
9 It was later on replaced by the Baroda Hindu Nibandha of 1937.
1 Thus, either party could sue for divorce if—(i) respondent’s whereabouts were not known for a period of seven years or
more, (ii) respondent had become a recluse, (iii) respondent had ceased to be a Hindu by conversion to another
religion, (iv) respondent was guilty of cruelty, (v) respondent was addict to intoxicants for more than three years and
was therefore unable to perform marital obligations, (vi) respondent had committed adultery, or (vii) respondent had
married a second time during the life-time of the petitioner. The wife had three additional grounds of which she could
sue for divorce, viz., the husband—(a) was impotent, (b) habitually committed an unnatural offence, or (c) refused to
allow the petitioner-wife to stay with him for more than three years without reasonable cause. The husband, too, had
two additional grounds, viz., the wife—(i) was pregnant at the time of the marriage by a person other than the petitioner-
husband, and the fact was unknown to him, or (ii) she failed to stay with him for more than three years without
reasonable cause. The bars to matrimonial relief were also laid down. The suit for divorce would be barred, if the
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

petitioner was—(i) guilty of unreasonable delay, (ii) of collusion, (iii) in case of adultery, was guilty of cruelty or desertion
before the adultery was committed by the respondent, or was guilty of conducting respondent’s adultery, or (iv) wilfully
lived apart from the respondent.
2 Only reforms that could be made in matrimonial law were in the form of two statutes, the Hindu Married Women’s Right
to Separate Residence and Maintenance Act, 1946 and the Hindu Marriage (Removal of Disabilities) Act, 1946. The
Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 allowed the wife to live separately
from her husband on certain grounds and she was also entitled to claim maintenance. This was certainly not judicial
separation. Beyond this we could not go. The Hindu Marriage (Removal of Disabilities) Act, 1946 permitted Sagotra and
sub-caste marriages among the Hindus.
3 The Bombay Hindu Divorce Act, 1947 contained six grounds of which husband or wife could sue for divorce. These
were: impotency, seven years’ lunacy, seven years’ leprosy, four years’ desertion, seven years’ unheard absence,
husband keeping a concubine or wife becoming a concubine. On the first four grounds no suit for divorce lay if husband
and wife had lived married life for 20 years after attaining majority. Wife had an additional ground of divorce, viz., her
husband had married again before coming into force of the Bombay Prevention of the Hindu Bigamous Marriage Act,
1946 and such wife was living at the time of the institution of the suit for divorce. Judicial separation was also available
under the Act on five grounds.
4 The grounds of divorce in these statutes were different. Thus five years’ leprosy, five years’ lunacy, conversion from
Hinduism, and cruelty were made grounds of divorce, in addition to the ground of husband keeping a concubine or wife
becoming a concubine. Ancillary reliefs were also introduced. Following English judicial practices, the Bombay Act laid
down the limit of alimony pendente lite as one fifth of the husband’s net income.
1 In 1941 was appointed a Hindu Law Committee with a reference to look into, and make recommendation for, reforms
and codifications of Hindu Law. The Committee recommended for the codification of Hindu Law in gradual stages. But
the Committee’s Report was not considered satisfactory.
2 Even when the Rau Committee toured India to collect public opinion, at several places black flag and at some places
violent demonstrations were held.
3 Hindu Marriage Act, 1955; Hindu Succession Act, 1956;Hindu Minority and Guardianship Act, 1956;Hindu Adoptions
and Maintenance Act, 1956.
4 Quoted by the Law Commission in its 59th Report.
5 Law Commission 59th Report (1974).
1 Section 10 of the Hindu Marriage Act, 1955 before the amendment of 1976.
2 Section 13(1)(i) of the Hindu Marriage Act, 1955 before the amendment of 1976.
3 Marriage Laws (Amendment) Act, 1976, section 7.
4 Clauses (iii), (iv) and (v) of section 13(1) of the Hindu Marriage Act, 1955, before 1976 amendments.
5 We have borrowed it from the English Matrimonial Causes Act, 1973.
6 In explanation to the clause, the definitions of ‘mental disorder’ and ‘psychopathic disorder’ have been borrowed from
the English Statute. Mental Health Act, 1959, Clauses (1) and (4) of section 4.
7 Clauses (ii) and (vi) of section 13(1) of the Hindu Marriage Act, 1955.
8 Clause (vii) of section 13(1) of the Hindu Marriage Act, 1955.
9 See English Statute: Matrimonial Causes Act, 1973, section 19(1).
10 Clauses (viii) and (ix) of section 13(1), Hindu Marriage Act, 1955. These seem to have been influenced by the divorce
law of the States of South Australia and New South Wales.
11 Section 13(2)(i) of the Hindu Marriage Act, 1955.
1 Section 13(2)(ii) of the Hindu Marriage Act, 1955.
2 Now it is sub-clause (iii) of section 13(2) of the Hindu Marriage Act, 1955.
3 Section 5 of the Hindu Marriage Act after the amendment of 1978 lays down that the bride should not be less than 18
years of age and the bridegroom should not be less than 21 years of age at the time of marriage, but so widespread is
the phenomenon of child marriages that we still do not lay down that such marriages are void or voidable; such
marriages are valid.
4 Section 13(2)(iv) of the Hindu Marriage Act. This is based on an analogous provision of the Dissolution of Muslim
Marriages Act, 1939, section 13(vii), but under this provision it is essential to show that the marriage was not
consummated before repudiation.
5 Section 23(1).
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

6 The cogent instance is the Supreme Court decision in N.G. Dastane (Dr.) v. S. Dastane, AIR 1975 SC 1534 [LNIND
1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975 SC 125], wherein a mentally
deranged wife nagged her husband to the extent of causing worst mental torture and physical discomfiture, yet the
Supreme Court refused to grant the relief, as the wife had delivered a child a few months before the presentation of the
petition—treating it as amounting to condonation.
7 Section 34.
1 Section 34.
2 Section 13B of the Hindu Marriage Act, 1955.
3 Section 23(1)(aa) of the Hindu Marriage Act, 1955.
4 Report 1951-56, Cmd. (1678).
5 Ten Years later, the Report of the Archbishop of Canterbury’s group, published under the title “Putting Asunder” (1966)
made the similar recommendation.
6 The State of New Zealand and some States of the United States, too, have similar provisions.
1 Section 27(2).
2 Section 32(a).
3 Marriage Laws (Amendment) Act, 1976, section 7(b).
4 Putting Asunder, A Divorce Law for Contemporary Society, (1966) p. 20.
5 Report of the Law Commission, (1966).
6 Chaman Lal Chuni Lal v. Mohinder Devi, AIR 1968 P&H 287 : 70 Pun LR 286 80; Syal v. Syal, AIR 1968 P&H 489 : 75
P&H LR 481: ILR (1968) 2 P&H 388 ; Laxmibai v. Laxmi Chand, AIR 1968 Bom 332 : 70 Bom LR: ILR 1968 Bom 793;
M. Someshwara v. Leelavati, AIR 1968 Mys 274 : 14 Law Rep 180: (1968) 1 Mys LJ 447 [LNIND 1968 KANT 7].
7 See Madhulkar v. Sarla, AIR 1973 Bom 55 [LNIND 1971 BOM 113]: 74 Bom LR 496: 1972 Mah LJ 762 [LNIND 1971
BOM 113]: ILR (1973) Bom 113 [LNIND 1971 BOM 113]; Bai Mani v. Jayanti Lal, AIR 1979 Guj 209 [LNIND 1979 GUJ
131].
8 AIR 1977 P&H 167 : ILR (1977) 1 P&H 765: 1978 Marr LJ 274(FB); a Full Bench of the Punjab and Haryana High
Court over-ruling its earlier decisions.
1 Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2218 [LNIND 1977 SC 256]: (1977) 4 SCC 12 [LNIND 1977 SC
256]: 1978 1 SCR 315 [LNIND 1977 SC 256]. This was a case where divorce was sought on the ground of non-
resumption of cohabitation after a decree for judicial separation was passed.
2 Putting Asunder, 1966, p. 20.
3 In fact the Law Commission put forth three proposals: (a) breakdown without inquest, i.e., breakdown of marriage as
evidence by six months’ separation; (b) divorce by consent; and (c) divorce on the ground of separation: under this
head a shorter period of separation, say, two years, was suggested, provided the other party consented to divorce, and
a longer period of separation, say, five to seven years, was suggested where either party could seek divorce,
irrespective of the fact whether the other party consented or did not consent.
4 The other four criteria are: such adultery of the respondent on account of which the petitioner finds it impossible to live
with the respondent; such behaviour of the respondent that petitioner cannot reasonably be expected to live with the
respondent (cruelty); two years’ desertion; and two years’ living apart of the spouses, provided the respondent
consented. Section 2 of the Divorce Reform Act, 1969, now section 2 of the Matrimonial Causes Act, 1973 which has
replaced the Divorce Law Reform Act, 1969.
5 Section 5(1) of the Matrimonial Causes Act, 1973.
6 Section 5(2) of the Matrimonial Causes Act, 1973.
7 Section 28(m) of the Matrimonial Causes Act, 1959 (as amended in 1966).
8 Section 4 of the Divorce Act, 1968.
1 Section 48 of the West German Marriage Act, 1946.
2 Section 5 of the Matrimonial Causes Act, 1973. In fact, most of the language of section 5 has been substantially
adopted.
1 Section 41 of the Matrimonial Causes Act, 1973.
1 Manu Smriti, IX, 95.
2 Manu Smriti, IX, 96.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

3 Manu Smriti, IX, 26.

4 Manu Smriti, III, 58.
5 Manu Smriti, IX, 46.
6 Manu Smriti, IX, 101.
7 Manu Smriti, IX, 102.
1 Manu Smriti, VIII, 227.
2 Manu Smriti, VIII, 228.
3 Rig Veda, IX, 85.
4 Satpatha Brahmana, V, 16, 10.
5 Taittiriya Samhita, III, 1, 2, 57.
6 Manu Smriti, IX, 101-102.
7 Mahabharat Anu Parva, 46, 1-13.
8 Ramayana, 11, 37, 23-24.
9 Manu Smriti, V, 147-54.
10 Manu Smriti, V, 151; Yaj, 1, 75; Vishnu, XXV, 13-14.
11 Manu Smriti, 1, 15, 4-6; Yaj, 1, 77; Vishnu, XXV, 13; Katyayana, 886.
2 Manu Smriti, IX, 46.
3 Mahabharat, Adi Parva, 74, 40-41.
4 Though some texts could be quoted to indicate that it also partook in the nature of a contract; Vyavastha Chandrika,
Vol. II, 432.
5 Manu Smriti, V, 160-161.
6 Manu Smriti, V, 151; Yaj, 1, 76, Vishnu, XXV, 13-14.
7 Manu Smriti, V, 169; Yaj, 1, 75; Parasara, IV, 26; Vishnu, XXV, 17.
1 Narada, XII, 81; Parasara, X, 26-35. Though in two cases remarriage was permitted: (i) when a damsel was abducted
and not married according to sacred rites, and (ii) if the husband died before consummation of marriage. On the other
hand, there was no such requirement for the husband. A man was enjoined to marry again after the death of his wife
without any delay.
1 Cesti Conupi, on Christian of the Papal Encyclicals (Ed. by Anne Fremontle), (1956), p. 235.
2 Friedman, Law in a Changing Society, (1970), p. 174.
1 Friedman, Law in a Changing Society, (1970), p. 175.
1 For instance, see Amrithammal v. Valliwayil Ammal, AIR 1942 Mad 693 [LNIND 1942 MAD 168]: 55 LW 540: (1942)
LR Mad 807.
1 For instance, see Vankatcharyalu v. Rangacharyalu,(1840) 14 Mad 816.
1 See Abdul Kadir v. Salima, ILR (1886) 8 All 149 .
2 Shama Charan Sircar, Mohammadan Law, (Tagore Law Lectures, 1873), 30.
1 Abdur Rahim, 327.
2 Schacht, 160.
3 Anglo-Muhammadan Law, 94.
4 Muslim Law, 37.
5 Abdul Kadir v. Salima, ILR (1886) 8 All 149 .
6 Abdul Kadir v. Salima, ILR (1886) 8 All 149 (154-155).
7 Abdur Rahim, 327.
8 Islamic Law in Modern India, p. 23.
1 See section 3(b) of the Parsi Marriage and Divorce Act, 1936.
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2 Benjamin v. Benjamin, ILR 50 Bom 359: 28 Bom LR 328: AIR 1926 Bom 169 .
3 Seema v. Ashwani Kumar, (2006) 2 SCC 578 : 2006 (3) SCJ 101: 2006 (3) SRJ 493: (2006) 2 SCALE 333 : 2006 (2)
Supreme 66: AIR 2006 SC 1158 .
4 Seema v. Ashwani Kumar, (2008) 1 SCC 180 [LNIND 2007 SC 1266]: AIR 2009 SC (Supp) 1308.
1 AIR 2012 Ker 115 : 2012 (3) DMC 445: 2012 (1) Ker LJ 726.
2 V.D. Grahalakshmi v. T. Prashanth, AIR 2012 Mad 34 [LNIND 2011 MAD 4171]: 2012 (3) Civ LJ 918: 2012 (2) DMC
646.
3 Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938 [LNIND 2001 SC 412]: 2001 AIR SCW 711: JT
2001 (2) SC 631 [LNIND 2001 SC 412]: (2001) 3 SCC 13 [LNIND 2001 SC 412]: 2001 (2) SCJ 281 : (2001) 2 SCALE
21 [LNIND 2001 SC 412]: 2001 SCC (Cri) 1305: 2001 (1) Supreme 681.
1 In England earlier divorce could be obtained by an Act of Parliament; then also the only ground was adultery. Even now
Parliament has power to grant divorce by passing a statute.
2 The Matrimonial Causes Act, 1937.
3 The Matrimonial Causes Act, 1923.
4 Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 [LNIND 2006 SC 192]: 2006 AIR SCW 1550: (2006) 4 SCC 558
[LNIND 2006 SC 192]: 2006 (3) SCJ 673: (2006) 3 SCALE 252 [LNIND 2006 SC 192]: 2006 (2) Supreme 627, Civil
Appeal No. 812 of 2004, decided on 21-3-2006 (Superme Court).
1 Bars have now been abolished by Divorce Reform Act, 1969, though some new bars have been introduced: see now
the Matrimonial Causes Act, 1973.
2 Matrimonial Causes Acts of 1857, 1923 and 1937.
3 The Matrimonial Causes Act, 1937.
1 Christian Marriage and Matrimonial Causes Bill was pending in Parliament, but when in 1962 Parliament was dissolved,
it also lapsed.
2 For distinction between this and the preceding ground, see Susama Singh v. Sri Sailendra Nath Singh, AIR 1961 Cal
373 [LNIND 1961 CAL 15]: 65 Cal WN 412: ILR (1962) 1 Cal 173 [LNIND 1961 CAL 15].
3 Two grounds were added by the Act of 1988 and one was deleted.
4 Mental disorder has been defined as mental illness, arrested or incomplete development of mind, psychopathic disorder
or any other disorder or disability of mind and includes schizophrenia. The expression ‘psychopathic disorder’ means a
persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on the part of the respondent whether or not it requires or is
susceptible to medical treatment. Under the Hindu Law, Parsi Law and the Special Marriage Act, the language is
identical.
1 Clauses (bb) and (dd) of section 32 of the Special Marriage Act, 1954, as amended in 1988.
2 The definition of insanity and mental disorder is the same as under the Special Marriage Act, 1954.
3 Section 35 of the Parsi Marriage and Divorce Act, 1936.
1 Connivance, acquiescence in the misconduct of respondent, condonation and collusion (collusion was made a
discretionary bar by the Matrimonial Causes Act, 1963) were absolute bars, while petitioner’s own adultery,
unreasonable delay, conduct conducing to respondent’s guilt were discretionary bars under English law before the
coming into force of the Divorce Reform Act, 1969: see the Matrimonial Causes Act, 1950, section 4, and the
Matrimonial Causes Act, 1965, section 5. These bars were done away with by the Divorce Reform Act, 1969: see sub-
sections (1) and (2) of section 2. See also section 5 of the Act of 1973 under which, inter alia, on account of grave
hardship to the respondent the petition of divorce may not be granted.
1 Angel’s “Origin of Family, Private Property and State”, pp. 117-18.
2 Tillet “Law and the People”, p. 157.
1 Baillie, Digest of Moohummudan Law, 38; Hedaya, 112.
2 Fatwa-i-Alamgiri, I, 669.
3 Buzul-ul-Reheem v. Luteefutoon-nissa,(1861) MIA 379.
1 Section 32B.
2 (1963) 2 All ER 966 : 1964 AC 644: (1963) 3 WLR 176.
1 (1963) 2 All ER 994: 1964 AC 698: (1963) 3 WLR 215.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

2 (1963) 2 All ER 994 (1004): 1964 AC 698 . Earlier his Lordship spoke thus on the applicability of the Macnaghten rules:
I have come to be clearly of opinion that it would be wrong to take the Macnaghten rules as a test. Not only have these
rules been subject to persistent and powerful criticism for clearly a hundred years but their strict application would lead
to capricious results. It appears to be the general opinion of medical men, who at least have better understanding of
insanity than lawyers, that there are types of insanity not within the rules which deprive the insane man of choice of
responsibility just as much as those types which are covered by the rules. So if the guilt, culpability, or blameworthiness
in some degree is to be held a necessary element in cruelty, I can see no rational basis for holding that if two persons
are in fact equally irresponsible, one is to be divorced because his type of insanity does not come within the rules, but
the other is to have a defence because his case is covered by the rules (at p. 1002).
1 Williams v. Williams, (1963) 2 All ER 994 (1028): 1964 AC 698 : (1963) 3 WLR 215 . Lord Pearce in conclusion
remarked: In my opinion insanity should, like temperament, and other circumstances, be one of the factors that may be
taken into account in deciding whether a wife is entitled to relief. Where, therefore, the conduct in question is such that
it would not amount to cruelty in the absence of an actual intention to hurt, an insane person who could form no such
intention would not be held to have treated his wife with cruelty. Where, however, the conduct would be held to cruelty
regardless of motive or intention to be cruel, insanity should not bar relief (p. 1029).
2 The Matrimonial Causes Act, 1963 and the Matrimonial Causes Act, 1950 have been repealed by the Matrimonial
Causes Act, 1965 and the provision has been re-enacted in section 5 of the Act, with minor modification. The portions
relevant for the present purpose run thus:
(1) On a petition for divorce it shall be the duty of the court:
(a) to inquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or
condonation on the part of the petitioner and whether any collusion exists between the parties; and
(b) …
(2) Provisions may be made by rules of the court for enabling the court, on application made either before or after the
presentation of the petition, to take into consideration for the purpose of this section any agreement or
arrangement made or proposed to be made between the parties and to give such directions in the matter as the
court thinks fit; but nothing in this sub-section affects any duty of the parties to disclose to the court any agreement
or arrangement made between the parties in contemplation of or in connection with the proceedings.
3 Section 4 of the Matrimonial Causes Act, 1950, as amended by the Matrimonial Causes Act, 1963 ran as under:
(1) If the court is satisfied on the evidence that—
(a) the case for the petitioner has been proved.....the court shall pronounce the decree of divorce....provided that
the court shall not be bound to pronounce a decree for divorce and may dismiss the petition if it finds that the
petition is presented or prosecuted in collusion with the respondent or either of the respondents...
(2) .....
(3) Provision may be made by rules of the court for enabling the court, upon application made before or after the
presentation of the petition for divorce, to take into consideration for the purpose of the said section 4 as amended
by this section any agreement or arrangement made or proposed to be made between the parties, and to give
such directions in the matter as the court thinks fit.
1 It is interesting to note, Dr. Naomi Michales in his article, “Collusion as a Discretionary Bar” published soon after the
coming into force of the Act in 1966 Modern Law Review, 257 said, “Although, it is too early to tell what will be the
ultimate effect of the change in the law, at present it seems that there is a fair chance of its leading to the introduction of
divorce by consent by the back door.” It is submitted that this seems to be what happened. In Head v. Cox, (1964) p.
228, the court took the view that a collusive arrangement would be given effect to in the following two sets of
circumstances: (i) where there is no danger that the agreement or arrangement, if adhered to, will result in a decree
contrary to the justice of the case; and (ii) where a bargain which might have resulted in a decree contrary to the justice
of the case is discharged either before or after it has been brought to the notice of the court, provided that it is unlikely
already to have resulted in an irremediable perversion of justice. In Nash v. Nash, (1965) 2 WLR 317, Scarman, J., put
the same thing more succinctly thus: “Compendiously put, it is said that the result of the collusive suit must not be
contrary to the justice of the case” (p. 320). In this judgment Scarman, J., disposed of ten applications in which collusive
agreements were placed before the court for its approval. Out of the ten applications, the learned judge approved
agreements in nine cases and did not deem it proper to express any opinion on the tenth.
2 (1969) 1 WLR 393 : (1969) 2 All ER 658 (CA).
3 (1969) 1 WLR 393 (396): (1969) 2 All ER 658 (CA).
1 Putting as under A Divorce Law for Contemporary Society, (1966), p. 20.
2 The committee has defined collusion, Putting as under A Divorce Law for Contemporary Society, (1966), pp. 38-39.
3 Putting as under A Divorce Law for Contemporary Society, (1966), pp. 52-53.
1 Putting as under A Divorce Law for Contemporary Society, (1966), p. 15.
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Chapter I CONCEPTS OF MARRIAGE AND DIVORCE

2 Now section 1(2) of the Matrimonial Causes Act, 1973.

1 Section 2—now sub-sections (1) and (2) of section 2 of the 1973 Act.
2 Section 2 of the Matrimonial Causes Act, 1950, reproduced in section 2 of the Matrimonial Causes Act, 1965.
3 Section 5(1) of the Matrimonial Causes Act, 1973.
4 Section 5(2). See also sub-section (3) which is based on the observation of Bagnell, J., in Rule v. Rule, (1971) 3 All ER
368.
5 Section 6.
6 Part II of the Act.
7 Section 28(m) of the Matrimonial Causes Acts, 1959 (as amended in 1966).
8 Section 36(1).
1 The New Zealand law provided for three years, if the other party consented and seven years, if the other party did not
consent.
1 Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675 [LNIND 2006 SC 192]: 2006 AIR SCW 1550: (2006) 4 SCC 558
[LNIND 2006 SC 192]: 2006 (3) SCJ 673: (2006) 3 SCALE 252 [LNIND 2006 SC 192]: 2006 (2) Supreme 627, Civil
Appeal No. 812 of 2004, decided on 21-3-2006 (Supreme Court).
2 Umar Bibi v. Md. Din, AIR 1945 Lah 51 .
3 Aaboobacker v. Manu, 1971 KLT 663 (668).
4 Belqis Fatima v. Najmul, PLD 1959 (WP) Lah 566.
5 AIR 1950 Sind 8 : PLD 1950 Sind 36. A full passage has been quoted by Krishna Iyer, J., in Aboobacker’s case.
1 See Paras Diwan’s Article, Breakdown Theory, 1969 Lawyer 191.
2 Bhukari, 68: 11.
3 The Koran, IV, 35.
1 Aaboobacker v. Manu, 1971 KLT 663, Krishna Iyer said: “Not some stresses and strains marring the matrimonial
broadsheet, inevitable everywhere in the world, but deep incompatibility which threatens to burn up the bond altogether
that is the test” (at 671). The ground has been read by the learned Judge in clause (ix) of section 2 of the Dissolution of
Muslim Marriage Act, 1939.
1 Section 29(2) of the Hindu Marriage Act, 1955.See Chapter VII for details.
1 Gaurav Nagpal v. Sumetha Nagpal, AIR 2009 SC 557 [LNIND 2008 SC 2272]: 2008 AIR SCW 7687: (2009) 1 SCC 42
[LNIND 2008 SC 2272]: (2008) 14 SCALE 228 [LNIND 2008 SC 2272].
2 Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 [LNIND 2010 SC 752]: 2010 Cr LJ 4303: 2010 AIR SCW 4975.

End of Document
 Chapter II MARRIAGE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter II MARRIAGE

PART I PRELIMINARY MATTERS

Status arising out of Marriage.—Marriage, whether considered as a contract or sacrament gives rise to a
status: it confers a status of husband and wife on the parties to the marriage. It confers a status of
legitimacy on the children. Out of it arise certain mutual rights and obligations of the spouses. Out of it also
arise certain obligations and responsibilities toward children of the marriage.

Looked at from another perspective, marriage implies two things: (a) act of marrying which means that
parties to marriage should have capacity to marry and necessary formalities or ceremonies and rites of
marriage should be performed, and (b) the state of being married.

The contract of marriage in regard to certain matters, such as consent and form, resembles to any ordinary
commercial contract, while in certain other aspects it is different from a commercial contract. The fact of
the matter is that marriage is a contract sui generis.It is not merely a contract, it is also a social institution.
In respect of the following matters marriage differs from other contracts:—
(a) capacity to marry,
(b) formalities of marriage,
(c) grounds of void and voidable marriages,
(d) avoidance of marriage—thus a decree of annulment of marriage is necessary when marriage is voidable,
(e) dissolution of marriage—a marriage can be, in most systems (except Muslim law) dissolved by a decree of
the court of law: a contract of marriage cannot be discharged by breach, agreement, frustration,
(f) terms of contract of marriage—parties are not free to stipulate any terms in the marriage contract; the
spousal rights and obligations are largely laid down by law, though some flexibility is allowed and parties
are given freedom to stipulate certain conditions (Muslim law is very liberal in this regard), such as parties
may stipulate conditions or situations in which they may release the other from the obligation of
cohabitation. Nor can parties contract out the obligation of maintenance.

Marriage differs fundamentally from other contracts inasmuch as once the marriage is entered into, it consequences
are independent of the contract of marriage. In the words of Appleton, C.J., an American Judge1:

When the contracting parties have entered into the married state, they have not so much entered into a contract as into a
new relation, the rights, duties and obligations of which rest, not upon their agreement, but upon the general law of the
State, statutory or common, which defines and prescribes those rights, duties and obligations. They are of law, not of
contract. It was of contract that the relation should be established, but, being established, the power of the parties, as to
extent or duration, is at an end, their rights under it are determined by the will of the sovereign as evidenced by law. They
can neither be modified nor changed by any agreement of parties. It is a relation for life: and the parties cannot terminate it
at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, as long as it
continues, are such as the law determines from time to time, and none other.

In English common law, marriage implied the merger of personality of the husband and wife; in reality it meant that
wife’s personality was merged into that of the husband. In view of this doctrine, a man could not grant or give
anything to his wife because she was “his-self” and if there were any contracts between the two before marriage
they stood dissolved on marriage. The freehold property of the wife vested in the husband and during the coverture
 Page 2 of 89
Chapter II MARRIAGE

he had the management of her property and took all profits derived therefrom. Her personal property entirely
passed to her husband—he took it absolutely. Specific things in her possession could also be taken over by the
husband. Thus, the merger of personality of husband and wife meant that whatever property wife had at the time of
marriage and whatever she acquired later on, belonged to her husband. This situation was remedied by the Married
Woman’s Property Act, 1870 (as amended in 1917), and English married woman acquired the right to hold, own
and acquire property.

This English law doctrine was never a part of Hindu Law or Muslim Law. Although under Hindu law there is the
doctrine of merger of personality, wife being ardhangini of her husband and completing him, it meant no more than
unity in spiritual sense. No part of her property belonged to the husband. In fact, most of the stridhan she got was
acquired by her at the time of her marriage: All gifts given to her at the time of her marriage belonged to her. Even
whatever she acquired during marriage belonged to her, though in distress the husband could use it, but he had to
restore it later on 2.

Muslim law and Islam also did not subscribe to notion of unity of personality of husband and wife. Woman’s
personality and individuality are not lost on her marriage. She continues to hold whatever property she had at the
time of marriage and she can also acquire property during marriage.

In India neither Parsis nor Jews subscribe to the notion of merger of personality in the sense as in English law.
PART II FORMS OF MARRIAGE

Among Hindus

Since the Hindu marriage has never been considered a contract, the question of volition of parties does not arise. It
its best form the Hindu marriage is a gift of the girl by the father to the husband. Originally, Hindu law recognized as
many as eight forms of marriage1: Brahma, Daiva,2Arsha,3Prajapatya,4 (approved ones),
Gandharva,5Asura,6Rakshasa7 and Pisachac (unapproved ones)8. Out of these eight, Hindu law at present
recognizes only Brahma, Asura and Gandharva, the rest have become obsolete.

Brahma Form.—It is the best form of Hindu marriage. It is gift of the daughter by the father to the bridegroom. It is
a transfer of father’s dominion over the daughter to the husband with his own volition. Originally, it was available
only to persons belonging to the three superior classes, as one of its requirements was that the bridegroom must be
learned in the Vedas. According to Manu, “The gift of a daughter after decking her with costly garments and
honouring her with presents of jewels, to a man learned in the Vedas and of good conduct, whom the father himself
invites is called the Brahma rite”9. However, today it is available to all classes and the decking of the bride in jewels
and learning the Vedas by the bridegroom is not necessary. What is necessary is that it must be a gift of the bride
by the father or other legal guardian of the bride to the bridegroom.

Gandharva Marriage.—Sometime back there were some doubts about the validity of the Gandharva marriage. By
placing erroneous construction10 on texts of Manu, it was considered nothing better than concubinage. But later on
it was considered a perfectly valid marriage1. From the modern point of view, it is the best form of marriage,
because it is the only form of Hindu marriage which is based on agreement and mutual love of parties. Mitra Misra
has thus explained the Gandharva form of marriage: “Where the bride and bridegroom mutually bind themselves
thus, ‘you are my husband’, ‘you are my wife’, and a marriage takes place independently of a gift to be made by the
father, that marriage is Gandharva.… “Accordingly, where a maiden chooses the bridegroom it is the Gandharva
form of marriage.2 The Gandharva form of marriage appears very near to our modern civil marriage. In the modern
language it may be called a love marriage. In a society whose basis was ‘status’ and since Gandharva form of
marriage implied change of status by one’s own volition, its disapproval was very natural.3

In the present Hindu Law it is recognized as a valid marriage and in the approved form.

Asura Marriage.—The Asura marriage is essentially a sale of the daughter by the father to the bridegroom. In
ancient societies this form of marriage had existed. This form of marriage, it may be noted, was not approved by our
sages and even today it is recognized in the unapproved form. According to Manu:

When the bridegroom receives a maiden, after having given as much wealth as he can afford, to the kinsmen and to the
bride herself, according to his own Will, that is called the Asura rite4.
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Chapter II MARRIAGE

The Hindu Marriage Act, 1955 does not speak of forms of marriage. It merely lays down that a Hindu marriage may
be solemnized by performing shastric ceremonies or by performing customary rite and ceremonies.5 But there is
nothing in the Act which prevents a Hindu from marrying in the Brahma form or in the Gandharva form. He can also
marry in the Asura form, but then if the bridegroom gives anything to the bride’s father in consideration of the latter
agreeing to give his daughter to the former, it would amount to dowry offence.
Among Muslims

Muslim law does not to lay down any forms of marriage. However, Muslims in India have adopted various forms in
which they marry, though Muslim marriage being essentially a contract, to be valid, it must comply with the
formalities of marriage laid down by Muslim law. On the performance of Nikah, a marital status arises between the
parties. A distinction sometimes is made between a permanent marriage and a temporary marriage. However, a
normal Muslim marriage is as permanent a marriage as a Christian marriage or a Hindu marriage or Parsi or Jew
marriage. The distinction between permanent and temporary marriage is made because of recognition of muta
marriage among the Shias of Ithna Ashari School, which is sometimes called a temporary marriage, though, in fact,
in its essence, it is a term marriage. Even in a muta marriage there is a nikah.

Muta Marriage.—”The believer is only perfect when he has experienced a muta”, thus observed the Shia
theologian, Al-Hurr Al-Amili. It may be difficult to say that when an Ithna Ashari Muslim enters into a muta marriage,
he does so with a view to perfecting his belief. The fact of the matter is that a muta marriage is a survival of a pre-
Islamic Arabic custom whereby the Arab women used to entertain men in their own tents. This union gave rise to no
mutual rights and obligations. The man entering the tent had to pay the entrance money. The man could get out of
the tent whenever he wanted and the woman, too, could throw him out whenever she chose. If any child was born
of such a union, it belonged to the woman. It seems that, later on, it developed into a fixed term union on payment
of some consideration by the man, and acquired the name of muta. This pre-Islamic institution of muta continued to
exist for sometime even after the advent of Islam in Arabia, as it was found useful during the time of war or travel. It
appears that on account of its widespread prevalence, the Prophet too tolerated it for sometime, but ultimately he
came out emphatically against such unions and declared them to be unlawful. But the institution survived in spite of
the opposition of the Prophet. It was Caliph Omar who liquidated it ruthlessly. Since the Ithna Ashari do not accept
the first three Caliphs (in which is included Omar), they continue to recognize muta.

An Ithna male has capacity to contract any number of muta marriages (he may even cross the limit of four) with a
woman who is Muslim, Christian, Jewish or a fire worshipper, but with none else1. But an Ithna Ashari female can
contract a muta marriage only with a Muslim. If the woman is major, her wali (guardian) cannot object to muta, even
when the woman is virgin. But a minor girl can enter into a valid muta marriage only with the consent of her
guardian, otherwise it would be unlawful. The Sharaya considers it to be abominable for a man to contract a muta
marriage with a fatherless virgin girl.

All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage.
According to Amir Ali the form in which a muta marriage may be solemnized is as follows: “I have united myself to
thee”, or, “I have married thee” 2 . Every condition forming part of the contract of muta marriage should be spelled
out at the time when the contract is entered into. Conditions stipulated before or after the contract are ineffective.

The following conditions are necessary for a valid muta marriage:

First, dower must be specified, without which the contract is void, and no union results.
Secondly, the terms must be specified.

The duration of the muta marriage may be a few hours, a few weeks or a few months or a few years. But in every
case duration of the term must be clearly specified. However, if the term is unspecified, then the implication is that
the parties stipulated a permanent union. In Shohrat Singh v. Mst. Jafri Bibi1, the Privy Council held if cohabitation
commenced in a muta marriage, where term was not stipulated then, in default of the evidence to the contrary, the
marriage would be deemed to have continued for the entire period of cohabitation. In Shahzada Quanum v. Fakhar
Jahan2 the court observed that the main distinction between a permanent marriage and a muta marriage is that in
the latter the term of cohabitation is specified. If the parties call their marriage a muta marriage and specify no term,
then such a marriage will be treated as a permanent union like any other permanent Muslim marriage, giving rise to
all incidents of such union, including the right of mutual inheritance and wife’s right to maintenance. Fyzee
disagrees with this view and opines: “The fixation of a period in the marriage contract destroys the concept of nikah
as understood in Islamic law. The mere omission to specify the period may result in a valid muta for life; but to
equate a muta for life with a regular nikah is a serious step, which inter alia, fails to take into consideration the
question of intention”3.
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It is submitted that the view expressed in the Hyderabad case is a better view. The fundamental difference between
a muta marriage and a permanent marriage is that in the former, the term is specified, while in the latter, it is not. If
the term is not specified, it should be considered as a permanent union, even if the parties call it a muta. In such a
case, the inference would be that the parties intended to conclude a permanent marriage. And if this inference is
drawn then all the consequences of a permanent marriage flow, namely, the right of mutual inheritance arises, the
wife is entitled to maintenance, and all the restrictions such as that the husband cannot take more than four wives,
come into existence.

Incidents of Muta Marriage.—The main incidents of the muta marriage are:

(i) In a muta marriage, parties have no right of mutual inheritance, even if one of the parties dies when the
muta is subsisting. There is a difference of opinion among the Shia authorities whether a specific
stipulation to that effect in a muta is valid.4
(ii) A wife in a muta marriage is not entitled to maintenance5. But if in the contract of marriage, it is specifically
stipulated, the wife will be entitled to maintenance during the whole term, even if the husband chooses not
to cohabit with her. In the absence of such a stipulation, the court has power to grant her maintenance
under section 125 of the Code of Criminal Procedure, 19736.
(iii) If the marriage is not consummated, the wife is entitled to only half of the dower. If the marriage has been
consummated then the wife is entitled to full dower even if the husband does not cohabit with her during
the entire term or part of the term. On the other hand, if the wife leaves the husband before the expiry of
the term, she is entitled to only proportionate dower1.
(iv) When the marriage has been consummated, on the termination of the term of muta, the wife is required to
undergo iddat, of three courses; if there is no consummation of marriage no iddat is required.
(v) It seems that in the muta marriage, the husband has the right to refuse procreation, that is to say, lzl is
allowed, and no permission of the wife is necessary2.
(vi) The off-spring of muta marriage has the status of legitimate child, and is entitled to inherit the property of
both parents in the same manner as the off-spring of a permanent marriage.
(vii) The muta marriage comes to an end automatically on the expiry of the term, unless extended, or on the
death of either party. The question of husband’s right to talak does not arise.3 However, the parties may
terminate the union by mutual consent. If the husband wants to terminate the union earlier, he can do so by
making a “gift of the term” or of any portion of it. This is called hiba-i-muddat4 for which consent of the wife
is not necessary.5

Classification of Marriages.—Under Muslim law (all schools of Sunnis though not of Shias) classify marriages
into:
(a) Sahih (valid),
(b) Batil (void), and
(c) Fasid (irregular).

On the other hand, the Shias do not recognize fasid marriages. According to them all marriages are either valid or
void.

Sahih (valid) marriage.—A marriage performed between the parties having full capacity to marry with all the
necessary formalities is a valid marriage. Here, the word “capacity” is used in a wide sense, which includes all the
legal requirements of a valid marriage. If the marriage is sahih, then, all the consequences of a valid marriage flow
from it. The legal effects of a valid marriage are:
(i) The parties to the marriage acquire the status of husband and wife, thereby, sexual intercourse between
the two becomes legal.
(ii) The mutual rights of inheritance are conferred on the parties.
(iii) The wife acquires the right of maintenance, dower and lodgement.
(iv) The marriage imposes the obligation on the wife to be faithful and obedient to her husband and admit him
to sexual intercourse.
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(v) On the dissolution of marriage, either due to divorce, or death of the husband, the wife has the obligation of
performing iddat.
(vi) The marriage establishes on both sides prohibitions of affinity, etc., such as, the husband cannot marry
wife’s sister.
(vii) The marriage subjects the wife to the husband’s power of restraining her movement, that is to say, the
husband can prohibit her from going out and appearing in public. But this power of the husband is subject
to the contract to the contrary.
(viii) It confers on the husband the power of reasonable chastisement and correction when she is disobedient or
rebellious.
(ix) It confers the status of legitimacy on the children.1
(x) In addition to these, other rights and obligations may also arise as agreed upon in the marriage contract.2

Under Muslim law, the wife’s sect or school does not undergo a change on marriage. Nor does a marriage confers
any right or power on each other’s property.

Batil (void) marriage.—When a marriage is performed in violation of absolute impediments or perpetual

impediments, the marriage is batil i.e. null and void— void ab initio. A void marriage is no marriage and no legal
consequences flow from it. Neither it confers the status of husband and wife on the parties, nor the status of
legitimacy on the children. No mutual rights and obligations arise from such marriage. It is called a marriage
because two persons have undergone the necessary formalities of marriage. But since they totally lack capacity to
marry, marriage cannot come into existence between the two. Thus, marriage performed in violation of rules of
consanguinity, fosterage or affinity or with another’s wife, are batil marriages. There is no process recognized or
prescribed in law whereby such marriages can be validated. Since the marriage is void ab initio, the parties are free
to go their own way. If the wife enters into another marriage, she will not be guilty of bigamy. Third person can take
a stand and say that the marriage is void, even though the marriage has not been formally terminated. Thus, a and
B have undergone a ceremony of marriage but their marriage is void, as they are related to each other within the
degrees of prohibited relationship. a dies leaving behind his father P and B. P claims a’s entire property by saying
that since the marriage of a and B was void, B has no status of wife, and he is, therefore, entitled to the property.
His claim will stand. Although no legal action is necessary for the declaration of such a marriage as null and void,
any person who is interested in getting such a declaration can file a declaratory suit under section 9 of the Code of
Civil Procedure, 1908 read with section 34 of Specific Relief Act, 1963.

Under Muslim law the matrimonial cause of nullity of marriage as such, is not recognized.

Fasid (irregular) marriage.—If the impediment or prohibition to marriage is temporary or remedial, then a marriage
performed in violation of such impediment is not void, but, as the Muslim law-givers call, irregular. An irregular
marriage, under Muslim law, is not the same thing as voidable marriage under English law or Hindu law. A voidable
marriage is a perfectly valid marriage till it is avoided, and it can be avoided only by either party to the marriage. No
third person can take a stand on it. A voidable marriage on its annulment has, practically, the same consequences,
as a void marriage1. On the other hand, an irregular marriage is not a valid marriage, nor it is a void marriage. A
fasid marriage is not a valid marriage to begin with, but it can be validated and made a fully valid marriage by
removing the impediment or by remedying the prohibition. Thus, when a person marries his wife’s sister, the
marriage is irregular. But he can validate it by pronouncing talak on his wife. Or, when a Sunni male marries an
idolater, the marriage is irregular, but, on his wife’s conversion to Islam, the marriage becomes valid.

An irregular marriage is totally an ineffective marriage before consummation. Either party to an irregular marriage
has a right to terminate it at any time, either before or after consummation, by just expressing an intention to do so.
Any words indicating such an intention are enough, such as one party may say to the other, “I have relinquished
thee”2. If consummation has taken place in an irregular marriage, then the wife is entitled to dower, proper or
specified, whichever is less. The wife is required to perform iddat of three courses on dissolution of marriage, either
by divorce, or by death of the husband. The children of such marriage are fully legitimate, and have rights of
inheritance to the property of both parents. The parties to an irregular marriage have no right of mutual inheritance3.

A marriage under Muslim law is irregular in the following cases:—

(i) A Sunni marriage performed without witnesses.
(ii) A marriage performed with a woman undergoing iddat.
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(iii) A marriage prohibited on account of difference of religion.

(iv) A marriage with a fifth wife.
(v) A marriage performed in violation of the rule against unlawful conjugation.

Since the Ithana Ashari law does not recognize irregular marriages, a marriage under head (ii) to (v) are void under
that law.
Among Christians

Among the Christians there is nothing like forms of marriage, though Christians adhering to different Churches
marry in their own Churches. A Christian marriage may be in the following forms:—
(a) Marriages performed in Churches of different denominations1.
(b) Marriage solemnized by or in the presence of the marriage registrar2.
(c) Marriage of Indian Christians.3

The Supreme Court, in a case of a minor’s marriage held that making of separate provisions in Parts III, V and VI of
Indian Christian Marriage Act, 1872 relating to marriage of minors and the requirement of consent of the parents or
the guardian shows that each Part is meant to be self-contained. The categories of persons covered by those parts
and the provisions appearing therein cannot be applied to marriages solemnized by persons falling in Categories I
and II of section 5 of the 1872 Act. Moreover, in the aforesaid two Categories (1 and 2) a person who can
solemnize the marriage can do so only according to the rules, rites, ceremonies and customs of the particular
Church to which the Minister or the Clergyman belongs. In other words, if a marriage has to be solemnized by a
Minister belonging to the Roman Catholic Church which will fall within Category, he is bound to follow only the rules,
rites and ceremonies and customs of the Church to which he belongs and it is not possible to apply the provisions
of Part III to him.

The court further held that every care is taken to ensure that the solemnization of the marriage as provided by
section 5 may be done by persons who were authorised to do so and in accordance with the rules and customs of
the church to which such persons belong under Categories 1 and 2 and in accordance with the provisions of the Act
by the Minister of Religion or the Marriage Registrar or a person licensed under the Act falling in Categories 3, 4
and 5, as the case may be. Even with regard to solemnization of marriages to which sections 19, 44 and 60 are
applicable, there is no provision that such marriages would be null and void. All that happens is that if the penal
provisions are breached, a person solemnizing a particular marriage will be liable to punishment4.
Among Parsis

The Parsi law does not prescribe any form of marriage, though in different parts of the country, particularly in cities
and in Moffusils, some variation in form prevails by custom. However, the essential ceremony for all Parsi
marriages in performance of the ceremony of Ashirbad performed by a Parsi priest, in the presence of two
witnesses5.

Civil Marriage
In India a civil marriage can be performed only under the provisions of the Special Marriage Act, 1954. It is
performed in the presence of the Marriage Officer and three witnesses.

Agreement to Marry
Engagement, betrothal or sagai.—In India, practically among all communities, a marriage is usually, though not
invariably, preceded by an agreement to marry, commonly called engagement or sagai. At English common law, a
marriage was also usually preceded by an engagement or an agreement to marry. At common law an action for
breach of agreement to marry could be filed in a court of law. In India, following English precedent, it was held that
an action for breach of an agreement to marry could be filed in a court of law. In India, agreement to marry is not
governed by the personal laws but by the general law of contract, and it has been held that if a party commits
breach of an agreement to marry without any lawful justification, the other has the right to sue for breach of the
agreement.
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The Hindu sages also were, it seems, in favour of sanctity of agreement to marry. Manu ordained that if a girl has
been promised in marriage to one man, the good men do not give her in marriage to another1. But father’s right to
annul the betrothal was also recognized by the sages if a better suitor was available. Narad laid down that if a
specific defect was discovered in the bridegroom or bride after the engagement, the other party could repudiate the
engagement2 This is also the view taken by the Indian courts. The Bombay High Court held that where a more
eligible suitor was available, or there was any other good cause for repudiation of marriage agreement, the
agreement could be repudiated and there was no cause of action either for the breach of agreement or procuration
of the breach by a third party.3 In Purshotamdas v. Purshotamdas4, an agreement to marry was entered into
between the mother of a minor boy and the father of a minor girl. On the father of the girl repudiating the marriage
agreement, the boy filed a suit for damages against the father of the girl. The father of the girl averred that the
agreement stood frustrated as the girl was not willing to marry the boy. Rejecting this argument the Bombay High
Court decreed the suit and awarded damages. In this case parties were Hindus. The same view had been taken
where parties were Parsis.5 However, in Venkita Narasimha v. Govindakrishna,6 the Madras High Court expressed
a doubt on this view on the ground that there could to be an enforceable agreement to marry on behalf of the minor
children and thus betrothal by parents could not be binding on the children.

Under Muslim law, a view has been expressed that unless a marriage contract is completed, no right and
obligations arise thereunder, and therefore no suit for damages for breach of agreement to marry can be filed7.

It is submitted that marriage agreements are not governed by personal law but by the general law of contract, and
an agreement to marry by a Muslim stands on the same footing as an agreement to marry by any person, and once
such an agreement is established between any two persons an action can be filed for its breach.

In India, particularly at a time when marriage of minors prevailed and was recognized in all communities,
agreements to marry were usually entered into by parents on behalf of minor children, and such agreements were
held valid. And not merely the parent or guardian, but also the minor, could sue for breach of agreement, as he was
the beneficiary under the agreement1. Today, marriages of minors are not so rampant as they used to be, yet they
are being still performed. Further, most marriages in India are still arranged marriages, and despite the Dowry
Prohibition Act, 1961, the tendency persists that prospective bridegrooms offer themselves to the one who offers
them the best terms. Often a marriage agreement is broken because there becomes available another person who
is prepared to marry his daughter on yet better terms. Obviously, there is no hesitation in breaking the earlier
promise. In this perspective, we need a remedy for breach of promise to marry.

Narad laid down that if a party withdraws from the marriage engagement without any cause, he should be
compelled to marry2 In modern Indian law specific performance of an agreement to marry cannot be ordered3. Nor
can an injunction be issued against a party who performs a marriage in breach of the agreement to marry4.

Thus, it appears that under Indian law an action for breach of promise to marry still lies.

In England, the social policy regarding actions for breach of promise to marry underwent a change after the Second
World War. It came to be accepted that no objective of public policy was served if a party who has entered into an
agreement to marry felt that he or she would not abide by the agreement, and if he was coaxed into marriage by the
threat of a legal action, this would land the spouses in an unstable marriage and ultimately in divorce proceeding.
The Law Reforms (Miscellaneous Provisions) Act, 1970 has abolished an action for breach of agreement to marry.
It lays down that no agreement to marry shall take effect as a legally enforceable contract and that no action shall
lie in England for breach of such an agreement, wherever it was made.

Agreements in restraint of marriage.—Section 26 of the Indian Contract Act, 1872 lays down that every
agreement in restraint of the marriage of any person, other than a minor, is void. Total or absolute restrictions on
marriage are void5, though not partial restrictions. Whenever an agreement puts a total restraint on the right to
marry, the agreement is void. However, partial restrictions6 or restriction on marrying for certain duration or
marrying a certain person, are not void. In Lofatunuisa v. Shaharbanu1, it was held that an agreement under which
a widow will lose her right of maintenance on remarriage is not an agreement in restraint of marriage. In Rao Rani
v. Gulab Rani2, two co-widows entered into an agreement that if any one of them remarried, she would lose the
right to the deceased husband’s estate, was held not to amount to restraint on the right to marriage.

Pre-marriage agreements: Muslim Law.—A remarkable feature of Muslim matrimonial law is that it permits the
spouses to enter into certain agreements, either at the time of marriage, or even thereafter. These agreements
relate mainly to two aspects: (i) regulation of matrimonial life, and (ii) stipulation for dissolution of marriage on the
happening of stipulated contingency. It is obvious that only those agreements will be enforced which are not
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unlawful or contrary to public policy. It has been held that an agreement for future separation between a Muslim
husband and wife is void as being against public policy.3 Mulla takes a different view. According to him, “If a
Mohammedan wife can lawfully stipulate for a divorce…there is no reason why she cannot stipulate for future
separation, at all events if the separation is for a justifiable cause. Such stipulations can hardly be said against the
policy of the Mohammedan law”4.

Amir Ali holds the view that agreements stipulating for the following are enforceable:—
(a) The husband will not contract a second marriage during the subsistence of the first.
(b) The husband will not remove the wife from the conjugal domicile without her consent.
(c) The husband will not absent himself from the conjugal domicile beyond a certain period.
(d) The husband and wife will live in a specified place.
(e) Certain amount of dower will be payable immediately after marriage or within a stated period.
(f) The husband will pay to the wife a fixed sum for maintenance.
(g) The husband will maintain the children of the wife from her former husband.
(h) The husband will not prevent her from receiving visits from her relations whenever she likes5.

It is submitted that the better classification of such agreements6 is the one suggested here at the beginning of this
Part. Under the former head, viz., regulation of matrimonial life, the most usual stipulations relate to the residence
and the payments of periodic sums to the wife by way of maintenance or otherwise. Under the second head, viz.,
the stipulations for dissolution of marriage on the happening of stipulated contingency, the commonest cases relate
to such conditions that the wife will have a right of pronouncing divorce on herself in the event of the husband taking
a second wife, or treating her with cruelty, or ill-treating her otherwise. Now some illustrative cases may be
examined.

It seems that reasonable conditions regarding the wife’s right to reside at a stipulated place are enforceable. In
some cases it has been held that the stipulation in an agreement that the wife should have liberty to live with her
parents after the marriage has been held void1. However, under certain circumstances such stipulations may be
valid. Thus, where the husband is a khana damad, the stipulation that the cohabitation after marriage will be at her
parental home was held valid2 Similarly, stipulation that in the event of husband taking a second wife, the first wife
will have a right to reside at her father’s house and to a certain sum of maintenance per month was held valid3. In
Saifuddin v. Soneka4, a stipulation with the third wife by a husband, already having two wives, that she will have the
right to divorce him or live at her father’s house, in case he brought any of his former wives to live in the matrimonial
home, was held enforceable. Fyzee opines: “If the agreement provides that the wife shall have the absolute and
unqualified right to reside permanently with her parents, the court will hesitate to enforce such a stipulation as it
would create moral, social and legal difficulties”5. The Shias take a liberal view. An agreement that the husband will
not take away his wife from her own city is binding. Thus, if a man marries a woman on the express condition that
she would be allowed to reside with her own people or in a specified country, then such a stipulation is valid. The
Shias hold that all conditions in agreements between the spouses are valid unless they go to legalize what is
forbidden or forbid what is permissible6.

Agreements stipulating that certain amount will be paid periodically or in lump sum, either by way of maintenance or
otherwise to the wife after the marriage or on the happening of certain contingency, are valid and enforceable. In
Mydeen Beevi Ammal v. T.N. Mydeen Rowther7, upon taking a second wife, husband entered into an agreement
with his first wife under which he settled certain properties on her for life. After sometime he divorced her and
brought a suit for the recovery of the property settled upon her. The court said that his wife was entitled to enjoy the
income of the property, notwithstanding the fact that she had been divorced by her husband. Among the Muslims of
rank, it is customary to give her some sum of money periodically for her personal expenditure under the kabinnama
or marriage contract, this is known as kharch-i-pandan or mewa-khori. Such stipulations are valid and enforceable.
In the leading case on this subject, Kwaja Mohammed Khan v. Hussaini Begum1, a father agreed at the time of the
marriage of his minor son that he would pay a sum of Rs. 500 per month to his son’s wife. This amount was
payable by the husband’s father from the date of the reception of the wife in her conjugal home. A charge for this
sum was created on the properties of the wife’s father-in-law. The wife lived in the conjugal home for a while, but
later on, on account of some differences, left it. Her suit for the payment of the monthly allowance of Rs. 500 was
decreed against the father-in-law. The court said that once the wife joined the matrimonial home, the amount
became payable, irrespective of the fact whether she continued to live there or left it.
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“Talak-i-tafweez” or delegated divorce in a very cogent instance of pre-marriage agreement under which the wife is
given a power to pronounce a divorce if the husband commits violation of the terms of the contract of marriage.
Usually, particularly in our contemporary Indian society, stipulations restraining the husband from taking second
wife during her life time are entered into in most Muslim marriages. Thus, in a pre-marriage agreement it may be
stipulated that in case the husband would take a second wife, she would have a right to pronounce divorce on
herself. Such stipulations have been held valid2.

Marriage brokerage contract.—An English public policy rule lays down that marriage should be entered into by
free volition of parties and no one else should arrange them or procure them. A marriage which is arranged through
some one else cannot be a marriage with the free volition of parties. When intermediaries procure marriage, more
often than not, they do so to gain some advantage. It is a settled rule of English law that if a person agrees to
procure a marriage between two persons on some consideration, such an agreement is void3. Such agreements
are called marriage brokerage contracts. The English courts have gone to the extent of saying that a marriage
brokerage contract would be void even if it does not stipulate to introduce any particular person of the opposite sex
for marriage but gives a choice of number of persons out of whom selection may be made3. Since a marriage
brokerage contract is void, anything promised to be given or already given cannot be recovered. However, if some
money had been advanced to procure a marriage but nothing is done in that direction, money can be recovered. In
Hermann v. Charlesworth3, one C promised to introduce a young man K to one Miss H. It was agreed upon that
Miss H would pay to C £ 50 in advance and £ 250 on the day of marriage. She paid the advance. C failed to fulfil
the promise. H sued C for the return of £ 50 given by her as an advance. The court held that she was entitled to a
decree. If, however, marriage of H and K would have taken place, H would not been entitled to recover the amount
of £ 50 and if she had not paid £ 50 on the day of marriage to C, C could not have succeeded, in recovering this
amount. In England, the marriage brokerage contracts have become obsolete.

Even in India, courts have been seldom called upon to adjudicate on these matters in recent times. Earlier the
question has come before courts in several cases. In India, the matter is important, particularly among Hindus and
Muslims, where a great majority of marriages are arranged marriages, and arranged marriages are usually
arranged through intermediaries. If intermediaries take money or other property for their labour such an agreement
would be caught in the inhibition of marriage brokerage contracts. 1 Thus, High Courts have held that an agreement
to pay money to the parent or guardian of a minor (or even major) in consideration of his consent to give the minor
in marriage is void as being opposed to public policy2. In Devarayan Chetty v. V.K.M. Muthuraman Chetty,3 the
Madras High Court held that an agreement to pay a penalty if a minor daughter was not given in marriage to a
particular person was void4. The same would be the position when services of a person are hired to procure a wife.5
In Devarayan v. Muthurswami,6 an agreement was entered into between the father of a girl and the father of a boy
that if the girl would decline to marry the boy, the girl’s father would pay to the boy’s father a sum of Rs. 5,000. The
girl refused to marry the boy. On the suit of boy’s father, the court held that the agreement amounted to trafficking in
marriage which is contrary to public policy. In Freny Engineer v. Shapurj7, the Bombay High Court took the view that
in the absence of a stipulation by way of penalty or liquidated damages, the agreement of betrothal by parents on
behalf of minor children would be unenforceable as in case of breach of agreement, they would have to pay
damages, and therefore they had a pecuniary interest in bringing about the marriage.

Agents for Marriage: Muslim law.—It is a peculiar feature of Muslim law that it stipulates for the appointment of
agents for marriage. These are known as witalat-ba-nikah. It is still customary in Muslim countries as well as in
India that marriages are procured through agents specifically appointed for the purpose. Mostly the agents are
appointed by women for their marriage, but men also use the agency of agents for their marriage.

A Muslim, desirous of entering into matrimony, may appoint any person as his agent for the purpose. Sometimes
guardians or parents of a minor or of persons of unsound mind, also appoint agents for procuring a suitable life
partner. These agents are also known as Vakils. A minor or a person of unsound mind cannot appoint his or her
own agent.8

An agent may be appointed orally or in writing. No witnesses are necessary1, and appointment of an agent is not
invalid because it has not been witnessed by any witness. An agent should be major and of sound mind. But
minority of an agent, it seems, does not affect the validity of marriage2. An agent may be of either sex. A female or
male can act as an agent for a male or a female Muslim. However, Shafii law does not permit appointment of a
female as agent.

An agent for marriage differs from an agent for sale of property. An agent for marriage merely negotiates or
procures a life partner, but he cannot be a party to the marriage contract. The marriage contract has to be entered
into by the person whose agent he is, and it is the principal who alone acquires rights and obligations under the
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marriage contract. An agent for marriage is, thus, no more than a negotiator or intermediary in marriage3. No action
lies against the agent for breach of any terms of the agreement to marry. Even if the agent contracts her or his
principal into a marriage with a person within prohibited degrees or otherwise unsuitable person, whether knowingly
or in ignorance, the agent is not liable4.

Muslim law givers have devoted themselves considerably to the law of agent for marriage. They recognize as many
six kinds of agents for marriage: (a) general agents for marriage, (b) special agents for marriage, (c) agents with
specified terms, (d) joint agents, (e) separate agents, and (f) common agents.

Muslim law permits appointment of general or special agents of marriage. An agent may have authority in respect of
a particular marriage. He may as well be generally authorized to procure a bride or bridegroom. But an agent
cannot marry the principal with himself even if he has authority to marry her to any person. But if he has special
authority to marry his principal with himself, he can do so. The authority must be given expressly. Under Shafii law,
under no circumstances can an agent marry his own principal. He cannot also get his principal engaged to certain
relations of himself. He cannot marry her to his ward. Thus, he cannot marry her to his son. If he is an agent for a
male, he cannot marry him to his own daughter. If such a marriage is performed, it is valid according to Muhammad
and Abu Yusuf, but it requires ratification according to Abu Hanifa5. There is no prohibition in respect of marriage
with other relations of the agent. A person can act as an agent of his divorced wife, but not before dissolution of
marriage.

Sometimes the authority of the agent is restricted or it is given within the framework of certain limitations. In such a
case he is required to act within that framework of limitations6. These restrictions may relate to qualities and
qualification of the prospective bride or bridegroom. It may relate to some specified person, or certain category of
persons may be excluded from the authority of the agent. In such cases wherever the agent acts outside the
framework of his authority, the marriage of the principal will not be binding. However, in some cases strict
compliance with the conditions may not render the marriage invalid. For instance, if the agent is authorized to marry
the girl (his principal) with a blind person and he marries her to a person having sight in both eyes or one, or if he
contracts her for more than the dower specified to him, the marriage will be valid. In other words whenever the
agent marries his principal in violation to the limitations of his authority, but to the advance of his principal, the
marriage will be valid.

Muslim law permits appointment of more than one agent for marriage. When two or more persons are appointed as
joint agents, then all must act together, and concurrence of all is necessary in the choice of the life-partner. It is
unlawful for any one agent to act independently of others1.

It is permissible that both parties—a girl and a boy—may authorize the same person to act as common agent for
marriage. In such a case, the agent can contract them into the marriage with each other2.

It is also open to a person to appoint several agents of marriage, and it is possible that each agent, independently
of each other, may find out a match and marry the principal with each one of them. In such a case number of wives
should not exceed four. This cannot be done in case these persons are agents for a woman3.

An agent has no power to delegate his authority to some other person, unless he is specifically authorized under
the contract of agency4.

Sometime a person purports to act as an agent though he has no such authority to do so. Such a person is known
as fizuli or intermeddler. If a fizuli contracts a person into marriage, the marriage contract will be valid only if de
facto principal ratifies it5.

A contract of agency for marriage can be terminated the same way as any other contract can be terminated. On the
marriage of the principal, the agency comes to an end. It would also terminate on the death of the principal or on
the frustration of contract. Thus, P appoints Q as an agent for marriage with G. If P marries the mother or daughter
of G, the contract of agency stands terminated by frustration5.

Recovery of property and gifts exchanged between engaged couple.—In India as well as in many other
countries, it is a waxed question as how to recover gifts and other property exchanged between the engaged couple
when engagement is repudiated. Since, in India, an action for breach of an agreement to marry lies on breach of a
marriage agreement, money, jewellery, dresses and other things given at the time of engagement, betrothal or
sagai, or expenses incurred in connection with betrothal or sagai are recoverable. The Mitakshara is explicit on the
point:
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If there is a breach of contract, whatever is expended on account of the espousal by the intended bridegroom or by his
father or his guardian is recoverable and must be repaid in full with interest by the attainer1.

The other way round is also true. There are several Indian cases holding this view. In Gulab Chand v. Fulbai Hari
Chand2, under an agreement made between the parties, P promised to pay a sum of Rs. 1,800 to Q as
consideration for the latter’s promise to marry his niece to P’s son, Of this amount, P paid Rs. 750 to Q. Before
marriage could take place P’s son died. P brought a suit for the recovery of this amount. Q pleaded that the
agreement being in the nature of marriage brokerage contract was void and therefore under section 65 of the Indian
Contract Act, 1872 no sum paid under such a contract could be recovered. The Bombay High Court took the view
that section 65 provided for restitution of any advantage received under an agreement discovered to be void without
any express reference to the cause or origin of the void character so that an agreement which is void by reason of a
principle of law would not, on that account, fall outside the scope of the section. In Balu Bhai Hiralal v. Nana Bhafi3,
a claim was made for the recovery of expenses incurred in betrothal by the father of the boy. The agreement for
marriage was repudiated on account of the ill-health of the boy by the bride’s father. The Bombay High Court held
that an agreement to marry could be repudiated for a valid reason but the defendant were liable to repay the
expenditure incurred by the plaintiff in the performance of the ceremony of betrothal.

Kandaswami Naidu v. M. Kanniah Naidu4, was also a suit for the recovery of expenses incurred in betrothal
ceremony as well as for damages for loss of reputation and credit of the plaintiff on account of breach of marriage
agreement. The court decreed the suit on both counts, and said that the plaintiff was entitled to the sum of money
actually spent in the betrothal ceremony and also for damage to his credit and reputation by reason of the refusal to
marry5. This case was decided on the basis of the text to that effect in the Mitakshara. Rajendra Bahadur Singh v.
Roshan Singh,6was also a suit for the recovery of expenses incurred in the engagement to marry. Harish Chandra,
J., said that in Hindu law a betrothal is in the nature of a contract to which the Indian Contract Act, 1872 applies.
The gift made by the parties on occasion of the various ceremonies preceding the marriage are not absolute or
irrevocable gifts even if they are accompanied by a Sankalpa, and where, the contract becomes void on account of
the impossibility of performance, such as on the death of the bride, the father of the bride is entitled to the return of
the gifts made in consideration for the proposed marriage and also to the reasonable expenses incurred in
connection with the ceremonies performed in connection with betrothal.

In India, the problem of recovery of gifts and property given in consequence of and at the time of engagement often
arises on the breach of a marriage engagement, as among Indians, particularly among Muslims and Hindus, it is
customary to give clothes, cash and jewellery of considerable value on such occasion. The Indian law in this regard
is not satisfactory.

In modern times, another problem arises when two working couple get engaged and spend money jointly for
acquiring a matrimonial home and in furnishing it. If engagement is broken, the question of recovery of respective
shares arises.

In respect of these two matters, England has reformed its law statutorily. On the one hand, under the modern
English law, no action lies for the breach of engagement of marriage, while on the other, the Law Reform
(Miscellaneous Provisions) Act, 1970 has reformed the law. The Act makes the innovation by making the position of
engaged couple almost at par with married couple. Section 2(1) of the Act lays down:

Where an agreement to marry is terminated, any rule of law relating to the rights of husband and wife in relation to property
in which either or both has or have a beneficial interest shall apply in relation to any property in which either or both of the
parties to the agreement had beneficial interest while the agreement was in force, as it applies in relation to property in
which a husband and wife has a beneficial interest.

This provision provides a solution to a situation like this: P who has been engaged to G purchases a house in his
own name partly with his own money and partly by the money provided by G, his fiancee. They further enhance the
value of the house by putting joint labour in improving it. Under the Act the investment of money and the labour by
G will give her the same interest as she would have acquired had the parties been married at the time.

In regard to recovery of gifts made by the engaged couple consequent upon, or at the time of engagement, to each
other upon the breach of engagement, section 3(1) of the Act enacts the following provision:

A party to an agreement to marry who makes a gift of property to the other party on the condition (express or implied) that it
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shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his
having terminated the agreement.

In our submission, the above provision relates to gift made upon, or at the time of engagement, and it does not
cover gifts made on other occasion. Thus, if an engaged person makes a gift on the occasion of the birthday of his
fiancee, he cannot claim to recover the present or its value, if engagement is broken by the fiancee. The test will be:
whether the gift was made to the donee as an individual or solely as the donor’s future spouse. Only the gifts falling
under the latter category are recoverable.

In India, a law on these lines is needed.

Guardianship in Marriage
In most systems of law, the age of marriage, and the age of majority are different, and in most systems minors (i.e.,
persons below the age of majority) are allowed to be married. Practically every system allowed a girl of 15-16 years
to be married. In the system where minors are permitted to marry, guardianship in marriage is provided and it is laid
down that a minor can not marry without the consent of the guardian. If a person married a minor girl without the
consent of the guardian, in some systems, the bridegroom could be prosecuted for kidnapping. In most systems he
is liable to some sort of criminal punishment.

In some systems of law, guardians for marriage are the same as guardians of the person of the minor, while in
some systems a different set of guardians are provided. The latter is the position under Hindu law and Muslim law,
while the former is the position under the Christian law and Parsi law.

The Prohibition of Child Marriage Act, 2006 lays down, on the pain of penal consequences, that no girl below the
age of 18 and no boy below the age of 21 should be married. The Act applies to members of all communities. But
we find that the law of guardianship in marriage under Muslim law and Parsi law has not been abrogated, though it
has been abrogated under Hindu law and in respect of marriage of Indian Christians under the Christian Marriage
Act, 1872.

Under Hindu Law. —Hindu sages have dealt elaborately with the rules of guardianship in marriage of girls. But
almost nothing has been said about the guardianship of boys. It is, probably, because Hindu sages contemplated
the marriage of a girl before she attained puberty, therefore guardianship was deemed necessary, while, it seems,
they did not contemplate the marriage of the boy before he attained puberty, consequently they have not dealt with
the subject of guardianship of boys.

There is a difference in the order of guardianship between the two schools of Hindu law.

Since there is no law of guardian in marriage under modern Hindu law, the portion relating to the subject has been
omitted from this edition.

Under Muslim Law.—Although the age of marriage for all persons belonging to any community has been now laid
down by the Child Marriage Restraint (Amendment) Act, 1978 as 18 years for girls and 21 years for boys, the
Muslim law of guardianship in marriage has not been abrogated1.

A person below the age of puberty, or a person of unsound mind, has no capacity to enter into a marriage contract
without the consent of his or her father, or, in his absence, of his or her guardian in marriage. If the minor
possesses understanding (ruhd), then a minor’s contract without the consent of the guardian is not void, it is valid;
subject to the ratification by the guardian. The Muslim law-givers are unanimous that a person of male sex who has
attained the age of puberty, and who is of sound mind, can enter into a valid contract of marriage without the
consent of the guardian; but they are not unanimous whether an adult girl of sound mind can marry without the
consent of her guardian. The Hanafis hold the view that the guardian’s power of giving the child of both sexes in
marriage comes to an end when the child attains the age of puberty (bulughyet). According to the Hedaya, “It is not
lawful for a guardian to force an adult virgin into marriage. None, not even a father nor the sovereign, can lawfully
contract a woman in marriage who is adult and of sound mind without her consent, whether she be a virgin or not” 1
. The Shias also hold the same view2.

According to the Maliki and the Shafii schools, the father’s power over female children does not come to an end till
they are married, since these schools hold the view that it is the marriage which alone emancipates a female child
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from the patria potestas of the father.3Amir ali remarks: “This harsh doctrine, however, does not appear to be
enforced in any community following the Maliki or the Shafii tenets”4. The Kerala High Court has held that the
marriage of an adult Shafii girl without the consent of her father, or any other guardian in marriage, is valid5.
Raghavan, J., observed that the authority of the father or grandfather to act as guardian of a Shafii girl ceases when
she becomes competent to contract, and, therefore, the guardianship in marriage ceases when the girl attains
puberty6. Pillai, J., puts in more neatly: “Marriage among Muslims being a contract and the contracting parties being
the husband and the wife, the consent contemplated in the Shafii sect is that of the wife and not of the father or
grandfather or any other person who acts as wali at the time of marriage. The person who acts as wali merely
communicates the consent of the wife to the kazi who conducts the marriage, and the husband”7. It is submitted
that this view is not only in consonance with the basic concept of Muslim marriage, but also accords well with the
modern social conditions.

Only an adult Muslim of sound mind can be a guardian for marriage. It is doubtful whether the Caste Disabilities
Removal Act, 1850, has removed the disability of a Muslim guardian who converts to some other religion8. In all the
schools of Muslim law, so long as the father is alive and fit, he is the sole guardian and no one else can act as the
guardian. The various schools of Muslim law do not agree as to who is guardian after the death of the father. With
the exception of the Malikis, all the other schools agree that an executor cannot act as a guardian in marriage.
According to the Sharaya-ul-Islam, an executor has no power to act as the guardian in marriage even if expressly
authorized to do so by the Will, though he may contract in the marriage an adult person who is deficient in
understanding9. Among the Hanafis, after the father, the guardianship in marriage passes to his agnates, nearer
being preferred. Imam Muhammed10 holds the view that in the absence of the agnates, the maula (successor by
contract) has the right of guardianship in marriage. After him comes the ruler or the judge who may delegate his
authority to any person1.

The Shias hold the view that after the father, the guardianship belongs to the grandfather, and after him, no relation
is entitled to act as the guardian2 Under the Shafii school, after the father, the guardianship belongs to the father’s
father how high soever, then to the son (by a previous marriage), then full brother, the nephew, the uncle, the
cousin, the tutor and the kazi. No female is recognized as the guardian in marriage by the Shafiis. After the father,
the order of guardianship, among the Malikis, is as follows: the son, the father, the full brother, the consanguine
brother, the nephew, the paternal grandfather, the paternal uncle, the cousin, the manumitter, and the kazi. They
also do not confer guardianship in marriage on any female.

In those cases where a wali improperly refuses to give his consent, or altogether withholds it, the minor child may
approach the kazi for the sanction of marriage, and either the kazi himself may give the required consent, or he may
authorize the next wali to do so3. Improper refusal to give consent by the wali is considered to be an act of
oppression. Where a minor has no wali, and there is no kazi who may be approached, then, the minor is free to
contract marriage. But, if the dower is small, or the man is not equal to her, the marriage is void, though she may
ratify it on attaining majority4.

Where a guardian in marriage is incapacitated to exercise the right of giving the child in marriage on account of
mental illness, or because he has become a ghibat-ul-munkata5, or he has been sentenced to a long term of
imprisonment, then the next wali, in order of guardianship, may give the child in marriage. When a minor child has
two guardians equal in degree, e.g., two paternal uncles, then the marriage contracted by any one of them is valid.6
If both have arranged the marriage with two different persons, then the contract prior in time will be void. If both the
contracts are contemporaneous, then both of them will be inoperative, till the child on attaining majority, declares
any one of them as first. A marriage contracted by a remoter guardian in the presence of a nearer is not invalid, the
nearer guardian may ratify it, otherwise the marriage will be invalid1. But the right of ratification or cancellation of
marriage by the guardian may be lost on account of his laches, such as on the birth of a child of the marriage2.

When a minor is married by a guardian, other than the father, or the grandfather, the minor has the right of
repudiation of marriage on attaining puberty: this is known as option of puberty (khyar-ul-bulugh). When the child is
married by the father or grandfather, then, too, the child can repudiate the marriage but only in certain
circumstances. In Abdul v. Mat Shah3, the Jammu and Kashmir High Court had taken the view that a guardian
could not give the girl in marriage.

Under Christian Law.—The Indian Christian Marriage Act, 1872 permitted the marriage of minors. Since the Child
Marriage Restraint (Amendment) Act, 1976 has abrogated the Christian law of guardianship.

Under Parsi Law.—The Parsi Marriage and Divorce Act, 1936 lays down that a Parsi below the age of 21 years
can marry only with the consent of his father and in his absence with the consent of the guardian of the person4. But
by Amending Act of 1988, it has been laid down that a girl who has not completed the age of 18 years and a boy
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who has not completed the age of 21 years cannot marry. It is also laid down that marriage below these ages is
void. The provision for guardianship has been abolished.
Part III CAPACITY TO MARRY

There is no system of law in the world, which does not lay down certain requirements on the fulfilment of which
alone a marriage should be performed. Simply put, these are also called as conditions of marriage. Technically put,
these are covered under the head capacity to marry. Although freedom of marriage is granted to all, but then
marriage can take place only on the fulfilment of certain conditions laid down by law. A marriage performed in
violation of the conditions of marriage may not be valid.

It is a unique development of law that all systems of law lay down certain requirements or conditions on the
fulfilment of which alone parties are said to have capacity to marry, but these requirements or conditions vary vastly
from system to system. Some lay down elaborate conditions of marriage, while some lay down only few conditions
of marriage. Further, all systems of law do not provide uniform consequences of the violation of these conditions.
Thus, for instance, on the ground of impotency marriage is void under the Special Marriage Act, 1954, the Parsi
Marriage and Divorce Act, 1936 and the Divorce Act, 1869, while it is voidable under thehindu Marriage Act, 1955
and the Matrimonial Causes Act, 1973. The Parsi Marriage and Divorce Act and the Divorce Act do not make any
distinction between voidable or void marriages; marriages are either void or valid. Some of the grounds on which
marriage is voidable under other systems, are grounds of divorce. Thus non-consummation of marriage and pre-
marriage pregnancy are grounds of divorce under the Parsi Divorce Act, while these are grounds of voidable
marriage under the Special Marriage Act. Pre-marriage pregnancy is also a ground of voidable marriage under
Hindu law. Some hold that violation of the conditions of marriage or lack of capacity, render the marriage void, while
some hold that violation of some renders the marriage void and violation of others renders the marriage merely
voidable1. On this basis some divide the conditions of marriage as absolute impediments, and relative impediments.
This was so under ecclesiastical law, from where it was adopted by the English civil courts. On the violation of
absolute impediments, marriage is regarded as void, while on the violation of relative impediments marriage is
regarded as voidable. Not merely this, in some system violation of some conditions renders the marriage neither
void nor voidable. The marriage remains valid though some penal consequences are attached2.

In some countries inter-religious marriages are not allowed. This is so in India. In India every religious community
has its own personal law. Thus, under Hindu Marriage Act, 1955 only Hindus can marry, under the Indian Christian
Marriage Act, 1872 only Christians can marry, under the Parsi Marriage and Divorce Act, 1936 only Parsis can
marry and under Muslim law only Muslims can marry. It is only under the Special Marriage Act, 1954 that inter-
religious and inter-community marriages can take place: under the Act “any two persons” can marry. The
requirement of capacity or conditions of marriage have been laid down under the Indian laws of different
communities.

Hindu Law.—Section 5 of the Hindu Marriage Act, 1955 runs as under:

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 3[***];

(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of
the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of
them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two.

Parsi Law.—Section 3 of the Parsi Marriage and Divorce Act, 1936 runs as under:
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No Marriage shall be valid if—

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth
in Schedule I;
(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in
the presence of two Parsi witnesses other than such priest; or
(c) in the case of any Parsi (whether such Parsi changed his or her religion or domicile or not) who, if a male,
has not completed twenty-one year of age, and if a female, has not completed eighteen years of age.

Christian Law.—Section 60 of the Indian Christian Marriage Act, 1872 which lays down conditions of marriage for
Indian Christians, runs as under:

Every marriage between Indian Christians applying for a certificate, shall, without the preliminary notice required under Part
III, be certified under this Part, if the following conditions be fulfilled, and not otherwise:—
(1) the age of the man intending to be married shall not be under twenty-one years and the age of the woman
intending to be married shall not be under eighteen years;

(2) neither of the persons intending to be married shall have a wife or husband still living.

The Act does not contain a similar provision in respect of non-Indian Christians.

Muslim Law.—Under Muslim law also conditions of marriage are laid down. These relate to age: no one can marry
below the age of puberty [this is apart from the Child Marriage Restraint Act, 1929 (as amended in 1978)],
prohibitions of marriage on the grounds of consanguinity, affinity, fosterage and unlawful conjugation, prohibitions
on the basis or religion, sect and status. (This has been discussed in detail in subsequent pages.)

Special Marriage Act.—The Special Marriage Act, 1954 lays down conditions of marriage in its section 4 thus:

Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a
marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions
are fulfilled, namely:—
(a) neither party has a spouse living;

(b) neither party—

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind, or

(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children, or
(iii) has been subject to recurrent attacks of insanity 1[***];

(c) (c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least
one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that
they are within the degrees of prohibited relationship; and
(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled
in the territories to which this Act extends.

Explanation.—In this section, “custom”, in relation to a person belonging to any tribe, community, group or
family, means any rule which the State Government may, by notification in the Official Gazette, specify in this
behalf as applicable to members of that tribe, community, group or family:
Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family,
unless the State Government is satisfied—

(i) that such rule has been continuously and uniformly observed for a long time among those members;

(ii) that such rule is certain and not unreasonable or opposed to public policy; and
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(iii) that such rule, if applicable only to a family, has not been discontinued by the family.

A marriage performed under any personal law can also be registered under the Special Marriage Act, 1954. Section
15 of the Act lays down conditions of such registration. Section 15 runs as under:

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under
the Special Marriage Act, 1872 or under this Act, may be registered under this Chapter by a Marriage Officer in the
territories to which this Act extends if the following conditions are fulfilled, namely:—
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband
and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship.

The requirements of capacity or conditions of marriage may be discussed the following heads:—
(a) Monogamy, polygamy and polyandry.
(b) Inter-religious, inter-communal and civil marriages.
(c) Prohibitions on account of relationship by blood, affinity or fosterage.
(d) Mental capacity—
(i) age, and
(ii) soundness of mind.

Monogamy, Polygamy and Polyandry

Most people—a predominant majority of people—in the world do not practice bigamy (plurality of spouses) and
most people perform monogamous marriage (only one spouse). Polygamy (plurality of wives) limited to four wives
is allowed in some Muslim countries and some non-Muslim tribes of African continent. It should be noticed that
some of Muslim countries have prohibited polygamy by statute and some allow it only in exceptional cases and then
too with the prior permission of the agency created for this purpose. This is so in Pakistan. Polyandry (plurality of
husbands) prevails in some tribes in Africa and Asia.

Before 1955, India was the largest country in the world which permitted its great majority of its people, Hindus and
Muslims, to practise polygamy (unlimited to Hindus and limited to four wives to Muslims). The Christians, Parsis and
Jews do not practise polygamy. They perform monogamous marriages. In some parts of India such as in Lahaul
Valley in Himachal Pradesh and among the Thiyyas of South Malabar, polyandry prevailed—and was recognized
under custom1. Strict monogamy was introduced for Hindus in Bombay Province in 1948 and in Madras Province in
1949. Finally in 1955, the Hindu Marriage Act introduced monogamy for all Hindus2 and made bigamy a penal
offence3. Bigamy among Hindu is now punishable with a term of imprisonment which may extend to seven years,
and, if the fact of the first marriage was concealed from the spouse, the term of imprisonment may extend to ten
years4.

In India, only Muslims are permitted to practise polygamy limited to four wives. Under the Hanafi law, if a Muslim
takes a fifth wife, the marriage is not void or voidable; it is irregular, which he can regularize at any time by divorcing
any one of the earlier four wives1. A Sunni Muslim thus taking a fifth wife is not guilty of bigamy. Among the Shias
the fifth marriage is void, and thus a Muslim Shia male will be guilty of the criminal offence of bigamy on his
marrying a fifth wife2.

The reason for the prevalence of polygamy among Muslims are several. The predominant position of the husband
that Islam gives him is one reason. But the main reason for the introduction of limited polygamy by the Prophet has
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to be looked at in back drop of the social situation existing in the pre-Islamic Arabia. Man then had absolute
freedom to marry any number of women that he desired and to divorce them at any time that he desired without
assigning any reason and virtually at his fiat. In fact freedom of marriage and freedom of divorce were absolute,
unbridled, unfettered, and anarchic. Marriage was not better than prostitution and it was worse than concubinage. It
was on account of such brazen oppression of women in pre-Islamic Arabia, that introduction of limited polygamy
itself was then considered a revolutionary step, a step towards amelioration of the lot of the women.

All authorities agree that the following Koranic verses are the foundations of polygamy in Muslim law: “Of women
who seem good in your eyes, marry one, two, three or four, and if he fear that ye shall not act equitably, then one
onlythis will make justice on your part easier”3. “And ye will not have it at all in your power to treat your wives alike,
even though you would try to do so”4. On the basis of these verses it has been maintained by the progressive
Muslims and reformers of Muslim law all over the world that the Prophet was in favour of monogamy. The former
verse is merely of permissive nature and the latter withdraws even that permission, as it is humanly impossible for a
man to treat all his wives alike. In Lily Thomas v. Union of India5, it has been held by the Supreme Court that
plurality of marriage is not an unconditional right conferred on the husband. He should have the capacity to do
justice between the co-wives. It is a condition precedent. However, whatever might have been the intention of the
Prophet, polygamy, limited to four wives, has been practised all over the Muslim world, and no court in India is
going to pass an injunction against a Muslim who is about to take a second wife on the ground that he has no
ability—even if ability is assessed purely in economic terms—to treat both the wives justly. Nor will a court of law,
ordinarily, refuse to pass a decree of restitution of conjugal rights against the wife who refuses to live with her
polygamist husband6. It is a different matter that now, under the Dissolution of Muslim Marriage Act, 1939, a wife
can sue her husband for divorce on the ground that her husband, who has a second wife, is not treating her
equitably, a question of fact which she will have to prove1. It is also an entirely different matter that, in fact, very few
Muslims in India practise polygamy. All the apologists of polygamy argue that since polygamy is not practised
widely by the Indian Muslims (the same argument was advanced by the Hindu apologists of polygamy at the time
when abolition of polygamy was sought in Hindu law), the legal existence of the institution should be ignored2.
Some go even further and hold the view that reforms should come from within the Muslim community with the
consent of the Ulema.

Bigamous Marriage
With the exception of Muslims, bigamous marriage under the personal law of all other communities is void3.
Offence of Bigamy

The offence of bigamy is committed by a person marrying again during the life time of his or her spouse (wife or
husband as the case may be), provided that the first marriage is not null and void. If the subsisting marriage is
voidable then also offence of bigamy is committed. The offence of bigamy is committed only if the requisite
ceremonies of marriage are performed4. The second marriage cannot be taken to be proved by the mere admission
of the parties; essential ceremonies and rites must be proved to have taken place5.

In Joginder Singh v. Jogindero,6 question was as to the proof of remarriage of the plaintiff. There was no statement
on the record as to the remarriage of the plaintiff. Real brother of the ‘second husband’ also denied his brother’s
marriage. It was held that remarriage has to be cogently proved.
Punishment for Bigamy

The punishment for bigamy is laid down in sections 494 and 495 of the Indian Penal Code, 1860. Under the former
section (bare bigamy) the punishment may extend to a term of imprisonment which may extend to seven years as
well as fine, under the latter (bigamy by concealment of former marriage), the punishment is a term of imprisonment
which may extend to ten years and also fine.

The solemnization of marriage is proved by showing that the marriage was performed with the proper and essential
rites and ceremonies of marriage prescribed under the law or custom applicable to the parties. A prosecution for
bigamy will fail if what is established is that some sort of ceremonies (not the essential ceremonies as prescribed by
law and custom) were performed with the avowed purpose that the parties were to be taken as married, and it is
immaterial even if it is established that the parties intended seriously to marry and thought that the ceremonies
performed by them would confer marital status on them. It is now established that if the second marriage of the
accused is declared void before the prosecution is commenced, no prosecution for bigamy can be made. The mere
intention of parties, however serious, will not make them husband and wife and the accused will escape prosecution
even if he deliberately performed a defective ceremony1. So long as the solemnization of a marriage depends upon
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the performance of a ceremony, the law cannot be otherwise. Two persons cannot be husband and wife by
seriously desiring and actually living as husband and wife, if they do not perform the necessary ceremonies.
Similarly, persons who perform bigamous marriage cannot be guilty of bigamy if they omit, deliberately or
inadvertently, to perform the essential ceremonies of marriage. The solution lies in prescribing one ceremony for all
Hindu marriages and by providing for registration of marriages2. So long as we recognize all sorts of ceremonies,
shastric as well as customary, such things are bound to happen. Dupes would take advantage of this state of law
and innocent persons would become their victims.

If first marriage is not proved, the second marriage is not bigamous3. Where a husband had married a woman
whose marriage was in subsistence, his subsequent marriage, in such circumstances, would not be bigamous, his
first marriage being void4. In the case of a bigamous marriage the “second wife” has no status of wife. But in case
she files a petition for nullity, she can claim both interim and permanent maintenance. If a husband (or wife) is about
to take a second wife (or husband), the first wife (or husband) can ask for an injunction from the court5. A suit for
perpetual injunction by one spouse against the other can be filed under section 9 of the Code of Civil Procedure,
1908, read with section 38 of the Specific Relief Act, 1963.

The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, 1955
since section 12 clearly lays down that a petition for a declaration that the marriage is null and void can be filed only
by either party to the marriage6. But, it seems that the first wife can file a suit in a civil court for a declaration under
section 9 of the Code of Civil Procedure, 1908, read with section 34, of the Specific Relief Act, 1963, that the
second marriage of her husband is null and void1. She can also file a petition for divorce under section 13(1)(i)
(adultery).

Second Marriage with the Consent of Wife (or Husband)

A notion still prevails that a childless person can take a second wife with the consent of his first wife. This is entirely
wrong2. Such a marriage will be bigamous and void. However, this erroneous notion led a Himachal Pradesh Court
to grant a declaration on the suit of the wife that, since on account of her frail health she was not in a position to
beget children, her husband be allowed to take a second wife. On appeal, the Himachal Pradesh High Court held
the declaration as illegal.3

Limited bigamy.—In some systems of law which recognize monogamy, concession for polygamy or second
marriage is granted to those males who fail to beget a child even after the elapse of several years of the marriage.
In Goa, Daman and Diu, during the Portuguese rule, a Hindu husband was permitted to take a second wife during
the life-time of the former, in some specified cases and in some circumstances with the consent of his first wife.
That continues to be the law in those territories. Kane had suggested that polygamy should be tolerated for some
classes on economic grounds4. There are others also who support recognition of polygamy in some limited cases.
Derrett says: “It is argued that carefully regulated bigamy, i.e., plural marriages, in cases of infertility, mental
instability of the wife, and other cases where the good sense and humanity of the husband and his family recoils
from divorcing her or annulling the marriage where she is impotent or very sick, would not only be in accord with
traditional Hindu religious sentiment and practice, but also much more realistic”5. What is here advocated is not
bigamy but polygamy. The same arguments hold good for polyandry also and not merely for Hindu society but also
for all societies in East as well as West. But, so far as the present writer is aware, polyandry on these grounds has
not been suggested by Kane, Derrett or any one else. As to ‘traditional Hindu religious sentiment and practice,’ it is
now well-known that polygamy at no stage of Hindu society, right from the Vedic age to this day, had been
practised widely. There have been only stray cases. The Hindu sentiment has always been against polygamy.
Rama has been the ideal and Rama practised strict monogamy. He did not take a second wife even when he had to
cast away Seeta. As to the satisfaction of religious or secular sentiment of the husband to have a son (or daughter),
this can easily be achieved by taking a son or daughter in adoption. After all, second marriage is no guarantee that
he will be blessed with a son. The reintroduction of polygamy, in whatever limited form, would be a retrogressive
step and the question is not what Chinese or Russians will say6, or what Englishmen or Europeans or Americans
will say, but will it be in tune with the march of humanity forward? One wishes that these protagonists of plural
marriages were at least logical by saying that polyandry should also be allowed in such cases1.

It is submitted that in the contemporary society, any argument in favour of bigamy, polyandry or polygamy, is based
on crude sentimentalism. It is a worst form of male bigotry. Is there a guarantee that on getting a second spouse,
offspring would spring out ? When a man was unable to beget a child on his own wife, ancient Hindus permitted
niyog. Modern technology has come out with testtube babies. AID or artificial insemination from a donor (when
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sperms of a third party donor were inserted in wife’s uterus) or AIH or Artificial Insemination Homologous (when
husband’s sperm is inserted into the uterus) are methods whereby fertilization takes place inside the woman. In the
former cases (test-tube babies), fertilization takes place outside and the fertilized ovum is then inserted in the
woman. These create complications also. Just as in the case of AID, is the wife guilty of bigamy? Are children
legitimate2? These complications can be avoided if childless couples take recourse to adoption. What should be
done is to pass a uniform law of adoption which permit adoption by any couple or even by any single person.

For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse, the court examined
some of the provisions of the Hindu Marriage Act, 1955. Section 11 of the Marriage Act declares such a marriage
as null and void.

Clause (i) of section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a
spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. By
reason of the overriding effect of the Marriage Act as mentioned in section 4, no aid can be taken of the earlier
Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as section
12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation
of section 5(i) of the Act. Sub-section (2) of section 12 puts further restrictions on such a right. The case covered by
this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved
party exercises the right to avoid it, the same continues to be effective. The marriages covered by section 11 are
void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all, if and when
such a question arises. Although the section permits a formal declaration to be made on the presentation of a
petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically
commenced for the purpose.3

Inter-religious, Inter-caste and Inter-sect Marriages

Inter-religious Marriages
Hindu Law

It seems that in the Vedic age inter-religious and inter-caste marriages were recognized. The Hindu princes have
taken wives from other lands and other religions, and it seems that this practice continued to prevail till the
codification of Hindu law of marriage. In the pre-Hindu Marriage Act cases, the courts expressed the view that there
was no rule of Hindu law which forbade the subsistence of a marriage between parties one of which was a non-
Hindu and the other was a Hindu1. It appears that prohibition of inter-religious marriages, if there was any, did not
apply to the Sudras, and the Sudras could validly marry a non-Hindu2.

Both the parties have to be Hindus. If A, a Hindu converted to Christianity marries a Christian woman by Hindu
rites, the marriage would not be valid.3If conversion to Hinduism is proved and wife was treated as Hindu in a Hindu
family for a period of 8 years, such marriage later, on would not be declared void4.

Marriages among the people belonging to the four religions and considered by law as Hindus, viz., Hinduism,
Buddhism, Jainism and Sikhism were always considered to be valid5.

After the coming into force of the Hindu Marriage Act, 1955, a Hindu cannot marry a non-Hindu. The Act permits
marriage between any “two Hindus.” Hindus can inter-marry among their four religions. In other words, now
interreligious marriages outside the four religions of the Hindus are not possible and if a Hindu marries a non-Hindu
in India, the marriage will be invalid6.

Viraf Phiroz Bharucha v. Manoshi Viraf Bharucha7, is a very interesting case where the court has exceeded its limits
to uphold the validity of marriage. The facts of the case are that: a, a Parsi had married B, a Hindu by Vedic rites in
1991. They had a son in 2001. B left A in 2006 and A filed petition of divorce on grounds of cruelty and desertion
under Hindu Marriage Act. Later he withdrew the same and filed a petition for nullity on the ground that since he
was a Parsi and B, a Hindu, their marriage is not valid. The court observed that none of the conditions that are
available for nullity under Section 11 are contravening. A claims that he still professes Parsi faith, hence his
marriage is invalid as Hindu Marriage Act does not apply on him. The court observed that if that is so, how, in what
capacity has he filed petition for nullity under the Act. Since, section 2 of the Act categorically mentions that
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provisions of the Act are applicable only on Hindus, since A is a Parsi, he cannot take recourse to the Act. For all
provisions of the Act except section 13(1)(ii) (where other spouse has converted) the parties have to be Hindu.

The appeal was dismissed holding that there was no cause of action.

Beena v. Kapleshbhai1 is somewhat similar case. Wife who had converted to Islam and married a Muslim man but
later after divorce reconverted to Hinduism and married the present respondent. But on ill treatment by present
respondent, she filed a petition for divorce. The lower court dismissed it as non-maintainable as wife/appellant was
non-Hindu. The High Court held that lower court did not appreciate ambit and scope of Order VII, rule 11 of CPC.

However, marriage between a Hindu and non-Hindu—and for that matter between a Muslim and non-Muslim,
between a Christian and non-Christian or between a Parsi and non-Parsi—if performed outside India will be valid if
lex loci permits such a marriage2.Such marriages will be valid in India, too if they are performed under the Special
Marriage Act, 1954.

However inter-caste marriages are perfectly valid marriages. This case arose out of disturbing news items
published in media where young men and women solemnizing inter-caste marriages are being targeted by
members of either or both communities. The Supreme Court has held that people perpetrating such violence and
harassment should be severely punished3.
Muslim Law

Koran enjoined, “wed no idolatresses till they believe; for lo ! a believing bonded woman is better than an idolatress
though she pleases you; and give not your daughters to idolators till they believe, for lo ! a believing slave is better
than an idolator though he pleases… And so are the virtuous women of the believers and virtuous women of those
who received the scripture before you (lawful for you) when you give them their marriage portions4“.

The Shias are very strict as to inter-religious marriages. Under the Shia law, the marriage of a Shia male, or female,
with a non-Muslim is null and void5. The Sunnis do not adopt such a rigid attitude. They take the view that a Muslim
male can validly contract a marriage with a kitabia, but not with an idol-worshipper or a fire-worshipper. The word
“kitabia”means a person who believes in a holy book containing revelations. The Christians and the Jews fall under
this category, but not the Sikhs. It appears that if a Muslim male marries a Christian woman, he can do so only
under the Indian Christian Marriage Act, 1872, since that law requires that if one of the parties to the marriage is
Christian, then the marriage must be solemnized under that law. This means that the marriage must be solemnized
in the presence of a Marriage Registrar, otherwise, it will be void1.

It is submitted that in such a case the marriage will be a Christian marriage, unless the Muslim formalities are also
complied with. Even then, to such a marriage the provisions of the Indian Divorce Act, 1869, will be applicable,
which means that such a marriage can only be dissolved thereunder. Thus, even if a husband pronounces talak on
his wife, dissolution of marriage will not take place.

Amir Ali takes a very wide view of religions in which a Muslim can marry. According to him:

“But it is a mistake to suppose that under the Muslim law a Muslim may only marry a woman belonging to the revealed
faiths by which are meant Islam, Christianity and Judaism. Marriages are allowed between Muslims and the ahl-ul-hawa
(free thinkers), the Sabeans, Zoroastrians as well as the Jews and Christians. A Muslim may, therefore, lawfully intermarry
with a woman belonging to the Brahmo sect. Nor does there seem to be any reason why a marriage with a Hindu woman
whose idolatry is merely nominal and who really believes in God should be unlawful. The Mogul Emperors of India
frequently inter-married with Rajput (Hindu) ladies and the issue of such unions were regarded as legitimate and often
succeeded to the imperial throne. What the Mohammedan law requires is that any such union should not lead to the
introduction of idolatry in a Mohammedan household”2

But this liberal view has not been accepted by the courts in India. In India Muslims can marry only Christians and
Jews and, of course, Muslims.

Although a Hanafi male is not allowed to marry a fire-worshipper or an idolatress, the considered view seems to be
that such a marriage is not void, but merely irregular3.

A Muslim female belonging to any school of the Sunnis is not allowed to marry a non-Muslim, whether a kitabia or a
non-kitabia. Mulla, however, hold the view that the marriage of a Sunni female with a non-Muslim is not void but
merely irregular4. Fyzee considers it to be an inaccurate statement of law, and, citing authority of the Koran, holds
the view that such a marriage is void5. A Muslim female cannot also enter into a valid marriage with a Christian
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under the Indian Christian Marriage Act, 1872, since section 88 of that statute lays down that a marriage which is
forbidden by the personal law of either party, will not be valid by virtue of any of its provisions.

A Muslim can perform a marriage with a non-Muslim under the provisions of the Special Marriage Act, 1954. In
such a case, marriage will be in a civil marriage form, and succession to their property would be governed by the
Indian Succession Act, 1925 and not by Muslim law. In all matters pertaining to marriage and matrimonial causes,
parties will be governed by the Special Marriage Act, 1954.
Christian Law and Parsi Law

The Indian Christian Marriage Act, 1872, has been enacted for the performance of marriage among the Christians.
Under the Act marriages can be performed between Indian Christians and non-Indian Christians. But it seems that
under the Act a marriage between a Christian and non-Christian is not invalid if it is permitted by the personal law of
parties. But if personal law of either party forbid such a marriage, then the marriage will be invalid1.

The Parsi law prohibits the marriage of a Parsi with a non-Parsi. If a Parsi performs a marriage with a non-Parsi
such a marriage is invalid under the Parsi Marriage and Divorce Act, 1936.
Special Marriage Act

Under the Special Marriage Act, 1954 any “two persons” can perform a marriage. Thus, inter-religious or inter-
communal or international marriages are possible in India only under the Special Marriage Act, 1954. Under the Act
a marriage has to be in a civil marriage form, though parties are free to perform any other additional ceremonies,
they may choose to perform. These ceremonies may be any2.

Once a marriage is performed under the Special Marriage Act, 1954, in all matters pertaining to the marriage, such
as matrimonial causes, alimony and maintenance and custody, education access and maintenance of children, the
provisions of the Act apply, and not the personal law of the parties. In short, once a marriage is performed under the
Act, it is outside the purview of personal laws of the parties. Further, succession to the property of the parties to the
civil marriage is not regulated by the personal law of the parties but by the Indian Succession Act, 19253.
Succession to the issues of such persons is also governed by the Indian Succession Act, 19253. However, if both
the parties to a marriage under the Act are Hindus, then succession to their property would continue to be governed
by Hindu law and not by the Indian Succession Act, 19254.

Inter-Caste and Inter-Sect Marriages

Hindu Law

Hinduism has been not one religion but commonwealth of religions. Multifaced and multi-dimensional practices
have come into existence. Sects and subsects have surfaced from time to time and continue to surface even in our
times.

The remarkable feature of Hinduism has been that it has been able to absorb all thoughts, ideas, dissensions,
practices, sometime diametrically opposite to each other, yet retained its basic unity. New reformists movements
come into existence and new developments take place. Hindus have never tried to confine their marriage in the
four-walls of any sect, sub-sect or development. Inter-sect marriages have been fully recognized. But there have
been some prohibition on inter-communal and inter-caste marriages.

When caste system or varna system of Hindus came to be firmly established, the inter-caste and even inter-sub-
caste marriages came to be prohibited. Earlier in the Vedic age, when Hindu class system had not become rigid,
inter-caste or inter-varna marriage were performed. Even the Smritikars mentioned two forms of inter-verna or inter-
caste marriages, though these have been mentioned by them in their zeal of classification and not to ignore the
social reality; they did not approve of them and, in fact, condemned them.

These were known as anuloma and pratiloma marriages. In the anuloma form of marriage a male of superior caste
married a female of inferior caste. For instance, a marriage between a Brahman male and Kshatriya, Vaishya or
Sudra female, or a marriage between a Kshatriya and Vaishya or Sudra female or a marriage between a Vaishya
male and Sudra female fell in this form. In pratiloma marriage a male of inferior caste married a female of superior
caste. Thus, when a Sudra male married a Brahman, Kshatriya or Vaishya female or a Vaishya married a Brahman
or Kshatriya female or a Kshatriya married a Brahman female, the marriage was pratiloma marriage. During the
Raj, pratiloma marriage came to be considered as obsolete and invalid, but anuloma marriages were valid in
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Bombay1, Assam and Bengal2.Inter-caste marriages were valid under custom. They could also be performed under
the Special Marriage Act, 1872 (as amended in 1923). The Arya Marriages Validation Act, 1937, permitted
performance of both anuloma and pratiloma marriage under the auspices of the Arya Samaj.

Inter-sub-caste marriages were validated under the Hindu Marriage (Removal of Disabilities) Act, 1946. The Hindu
Marriage Validity Act, 1949 permitted performance of both forms of inter-caste marriages. Now under the Hindu
Marriage Act, 1955 inter-caste marriages among all castes are valid as under the Act “any two Hindus” can marry.

Be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of her husband’s
marital home, entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage,
becomes a member of the family and thereby she becomes a member of the caste to which she moved. The cast
rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband
belongs and she gets herself transplanted.

To the question whether recognition of the community is a pre-condition, though it was consistently held that
recognition is a circumstances to be taken into consideration, marriage being a personal right of the spouses, they
are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which
they live and by such living they acquire married status. In the light of the constitutional philosophy of social integrity
and national unity, right to equality assured by the human rights and the Constitution of India, on marriage of a man
and woman, they become members of the family and are entitled to the social status as married couple; recognition
per se is not a pre-condition but entitled to be considered, when evidence is available. It is common knowledge that
with education or advance of economic status, young men and women marry against the wishes of parents and in
many a case consent or recognition would scarcely be given by either or both the parties or parents of both
spouses. Recognition by family or community is, therefore, not a precondition for married status1.

Sagotra andsapravara marriages.—It appears that the Hindus subscribed to the rule of exogamy whereunder a
person is not permitted to marry within the same tribe. The shastric prohibition of sagotra and sapravara marriages
relate to this rule.

Hindus believe that they are descendants of some or other rishi or sage. Those who trace their descent to the same
rishi have a common gotra. Thus, two persons belonging to the same gotra are gotraja, if their descent in the male
line is traced to a common rishi. They bear the same gotra—which is the name of the rishi. They cannot inter-marry.
It seems that originally the word ‘gotra’ meant ‘bond’, later on it came to be a designation of a family and the
descendants of the same family were not permitted to inter-marry. This is prohibition of sagotra marriage. The
Dharmashastras as well as the Grihasutras prohibited such marriages.

The three lineal male ancestors of the founder of the gotra or the common sage are referred to as pravara. The
word ‘pravara’ literally means “invocation” or “summons”. Probably, it is traceable to the cult of fire-worship among
Indo-Aryans. The purohit officiating at the sacrificial fire used to recite the names of famous rishi ancestors so that
libations could be carried to Gods2. It seems that the term pravara came to denote such ancestors. During the Raj,
there was conflict of judicial opinion as to the validity of saparvara marriages.

The sagotra and saparvara prohibitions were not applicable to Sudras.

The Hindu Marriages (Removal of Disabilities) Act, 1946 validated both saparvara and sagotra marriages.

Under the Hindu Marriage Act, 1955, such marriages are valid. In fact all restrictions on inter-caste, inter-sub-
caste,sagotra and saparvara marriages have been removed.
Muslim Law

Under Muslim law inter-sect marriages have always been valid. Muslims belonging to different sects or schools can
inter-marry. Such marriages are valid. On an inter-sect marriage no change of sect or school takes place. Each
spouse continues to belong to his original sect or school. Thus, marriages between Sunnis and Shias are valid.
Marriage between a person belonging to the Hanafi school and a person belonging to Safai school or Ithna ashari
or Maliki school is valid3.
Christian Law and Parsi Law

Among the Christians, marriages between persons belonging to any denomination of Christians are permitted and
valid. Thus, marriages among Roman Catholics and Protestants can validly take place.

Among the Parsis there are no sects or denominations.

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Prohibitions on the Basis of relationship

Hindu Law

Considered as mahapataka, highest sin, the Dharmashastra prohibited marriage with one’s mother, one’s sister,
one’s daughter or son’s wife and other near relations. This prohibition is based on the rule of exogamy1. The extent
of this prohibition had varied from time to time. It appears that during the time of the Satapatha Brahamana, the
prohibition extended only to the third or fourth degree of kinship. However, by the time of the Smritis, it came to be
firmly established that prohibition of sapinda relationship extended to five degrees on the maternal side and seven
degrees on the paternal side2.

The prohibition on the basis of relationship in the modern law is divided under two heads:
(a) Sapinda relationship, and
(b) Degrees of prohibited relationship.

Sapinda Relationship

Manu’s enjoinment was: “A damsel who is neither a sapinda on the mother’s side nor belongs to the same family on
the father’s side is recommended to the twice born men for wedlock and conjugal union3. The Hindu sages held two
views (or theories) on sapinda relationship, the old theory is known as oblation theory, and the new theory is known
as particles of the same-body theory, propounded by Vijnaneshwara.

Before Vijnaneshwara, the sapinda relationship was linked with the oblations that a Hindu offered to his departed
ancestors. The oblations are based on our practice and belief of ancestor worship. The Hindus practice ancestor
worship is in the form of offering of pindas. Every year, during the shraddha, offerings are made to departed
ancestors in the form of pinda-dan. Literally meaning a ball, the pinda is usually made from rice. A Hindu male
offers one full pinda each to his three departed paternal ancestors and one full pinda to his two maternal ancestors.
He also offers one divided pinda (lep) to three of his next paternal ancestors, and similarly one divided pinda to
each of his two maternal ancestors. Thus, he is connected by pinda-dan to his six paternal ancestors and four
maternal ancestors, and on that account he is sapinda to each of these ancestors. Since computation of degrees is
done including the offeror, it is said that sapinda relationship extends upto seven degrees on the paternal side and
five degrees on the maternal side. This may be shown as under:
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Counting P as one degree, mother as two, mother’s father as three, mother’s father’s father as four, and mother’s
father’s father’s father as fifth degree on the maternal side, and counting P as one degree, father as two degrees,
father’s father as three, and father’s father’s father as four, father’s father’s father’s father as five, father’s father’s
father’s father’s father as six, and father’s father’s father’s father’s father’s father as seven degrees, the sapinda
relationship extends to five degrees on the maternal side and seven degrees on the paternal side.

According to Hindu law P is sapinda to all the above ancestors. When two persons offer pinda to the same ancestor
they are also sapindas to each other.

The theory as propounded by Vijnaneshwara has not only the merit that it secularises the law, but it also
rationalizes and simplifies the law relating to prohibitions on the basis of sapinda relationship. Vijnaneshwara
changed the meaning of “pinda” from ball to particle. According to him sapinda relationship arises between two
persons on account of their being connected by the particles of the same body. A passage in the Mitakshara runs
as under:

He should marry a girl who is non-sapinda with himself. She is called his sapinda who has particles of the body of the same
ancestor, etc., in common with him. Non-sapinda means not his Sapinda. Such a one he should marry. Sapinda-
relationship arises between two people through their being connected by particles of one body. Thus, the son stands in
sapinda relationship to his father because of particles of his father’s body having entered his. In like manner stands the
grandson in sapinda relationship to his paternal grandfather and the rest, because, through his father, particles of his
grandfather’s body have entered into his own. Just so is the son a sapinda relation of his mother, because particles of his
mother’s body have entered into his. Likewise the grandson stands in sapinda relationship to his maternal grandfather and
the rest through his mother. So also is the nephew a sapinda relation of his maternal aunts and uncles, and the rest,
because particles of the same body [the maternal grandfather] have entered into his and theirs; likewise does he stand in
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sapinda relationship with paternal uncles and aunts, and the rest. So also the wife and the husband are sapinda-relations to
each other, because they together beget one body [the son]. In like manner, brothers’ wives also are sapinda relations to
each other, because they produce one body [the son] with those (severally) who have sprung from one body (i.e., because
they bring forth sons by their union with the offspring of one person, and thus their husband’s father is the common bond
which connects them). Therefore, one ought to know that wherever the word sapinda is used, there exists between the
persons to whom it is applied a connection with one body, either immediately or by descent.

Vijnaneshwara says that sapinda relationship arises from the circumstances that particles of one body have entered
into the bodies of the persons thus related either immediately or through transmission by descent. It is almost
saying that all those have blood of a common ancestor in their veins are related to each other by sapinda
relationship. But Hindus prefer to say that all those having particles of the same ancestor are related to each other
by sapinda relationship. Realizing that his definition castes the net of sapinda relationship too wide as such
relationships can exist in the eternal circle of birth, he proceeded to limit it upto seven degrees on the paternal side
and five degrees on the maternal side. He said:

After the fifth ancestor on the mother’s and after the seventh on the father’s side: On the mother’s side in the mother’s line,
after the fifth, on the father’s side in the father’s line, after the seventh ancestor, the sapinda-relationship ceases; these
latter two words must be understood; and therefore the word sapinda, which on account of its etymological import
(connected by having in common), particles (of one body) would apply to all men, is restricted in its signification, just as the
word pankaja (which etymologically means ‘growing in the mud’, and therefore would apply to all plants growing in the mud,
designates the lotus only) and the like; and thus the six descendants, beginning with the son, and one’s self (counted) as
the seventh (in each case), are sapinda relations.

In case of division of the line also, one ought to count upto the seventh ancestor, including him with whom the
division of the line begins (e.g., two collaterals, A and B are sapindas, if the common ancestor is not further
removed from either of them by more than six degrees), and thus must the counting of the sapinda relationship be
made in every case. Accordingly, it is to be understood that the fifth from the mother is she who is in the line of
descent from (any ancestor of the mother) up-to the fifth ancestor, beginning with the mother, and counting her
father, grandfather and the like. Similarly, the seventh from the father is she who is in the line of descent from any
ancestor upto the seventh ancestor, beginning with the father and counting his father and the like. Similarly, (it is
said): In marriage, two sisters, a sister and a brother and a brother’s daughter and a paternal uncle, are taken to be
two branches by reason of the descent of the two from a common ancestor (from whom computation of the degrees
is to be made among their descendants).

The unique aspect of Vijnaneshwara’s formulation of sapinda relationship is that it applies not merely to the first
three classes but as well as to sudras. Further, it applies not merely to marriage but also to inheritance. He
classified sapindas into—
(a) Saman-gotra sapindas, and
(b) Bhinna-gotra sapindas or bandhus.

The former are agnates within seven degrees of the common ancestor, while the latter are cognates within five
degrees of common ancestor. The reason for this limitation are, in the words of Vijnaneshwara, one is the giver of
the pinda-three, father, grandfather and great-grandfather are recipients of pindas, and three—beginning with great-
great-grandfather are recipients of divided pindas (lepas). Or, as Vijnaneshwara himself puts it, the first pinda is
efficacious upto the fourth ancestor, the second pinda upto the fifth and the third pinda upto the sixth. As regards
bhinna-gotra sapindas, the reason for the limitation of five degrees was that, as a woman causes a change in the
family, one had to offer oblations to his mother’s father, grandfather and great-grandfather and counting also the
mother and himself, it became five degrees.

The Hindu Marriage Act, 1955, has reduced the degrees of sapinda relationship by two degrees on either side.
Section 3(6) runs as under:
(i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the
line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line
being traced upwards in each case from the person concerned who is to be counted as the first generation;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits
of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda
relationship with reference to each of them.
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The above formulation of sapinda relationship lays down two-fold relationship: (a) relationship directly to the
ascendants on both paternal and maternal relationship, and (b) relationship indirectly through a common ancestor,
on both paternal and maternal relationship. The former relationship may be illustrated thus:

As we have said earlier, computation is inclusive of the person concerned and the ancestor. Beyond MF (mother’s
father), there is no sapinda relationship. Mother’s father’s father or other ancestors on maternal side beyond him
are not sapindas to P. Similarly, beyond FFFF (father’s father’s father’s father), there is no sapinda relationship.
Thus, father’s father’s father’s father’s father and all ancestors beyond him are not sapindas to P.

Most of the cases of prohibition for marriage would come under the latter head, i.e., when sapinda relationship is
traced through a common ancestor. This is illustrated by the following diagrams. But before that the following rules
should be kept in view:—
I. Sapinda relationship is always traced upwards, i.e., in the line of ascent and not in the line of descent.
Thus, in the following diagram if we want to know whether G and P are sapindas, we have to trace their
relationship to the common ancestor, MF, i.e., P’s mother’s father and from the common ancestor
downward, i.e., in the line of descent. We find that G is P’s mother’s father’s son’s daughter and G is
tracing her relationship to the common ancestor, MF through her father (it is paternal line for her) and P is
tracing his relationship through his mother (it is maternal line for him). Since P is within three degrees on
the maternal side and G is within five degrees on paternal side, they both are sapindas to MF and therefore
are sapindas to each other.

II. Computation of degrees is inclusive of the person concerned. In the above diagram, we would begin
computing with P who constitutes one degree, M constitutes two degrees and MF three degrees. Similarly,
G (MFSD) constitutes one degree, her father (MFS) constitutes second degree and her father’s father (MF)
constitutes three degrees.

To avoid confusion the diagram has been drawn on the hypothesis that P wants to know whether G is
a sapinda to him. If it is drawn on the hypothesis that G wants to know that whether she is sapinda to
P, we would have drawn it as under:

III. Sapinda relationship may be traced—(a) on both sides through the mother, (b) on both sides through the
father, or (c) on one side through the father and on the other side through the mother. This may be
explained with the help of the following diagrams:—

In the following diagrams the relationship of P, a Hindu male, to G, a Hindu female, has been traced to
find out whether they are sapindas to each other and hence diagrams have been drawn accordingly.
As seen in the preceding diagram, if it has been, the relationship of G, the Hindu female, to P, is to be
traced then the diagram would be drawn the other way round.

Here G (FFSD) is P’s father’s father’s son’s son’s daughter. Both are tracing their relationship to the
common ancestor FF through male; P is tracing through his father and G is tracing it through her
father’s father (FF is her father’s father’s father). Since both are tracing their relationship through the
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paternal side and if both are within five degrees to the common ancestor, they would be sapindas to
him and hence to each other. As it may be seen, FF is three degrees in ascent to G and thus both are
sapindas to FF (being within five degrees) and, therefore, also to each other.

In the above diagram G (MFDD) is P’s mother’s father’s daughter’s daughter (i.e., mausi’s daughter).
Both are tracing their relationship to the common ancestor FF through maternal side: P through his
mother M, and G through her mother’s (MFDD) mother’s (MFD) father. Both are within three degrees
of ascent to the common ancestor MF, they are sapindas to him, and, therefore, to each other.

In the above diagram G (MFSSD) is P’s mother’s father’s son’s son’s daughter. P is tracing his
relationship with the common ancestor MF through his mother M, while G is tracing it through her
father’s father— MF being her father’s father’s father. In other words, P is tracing his relationship to
common ancestor through maternal side, while G is tracing her relationship with the common ancestor
through the paternal side. Since P is within three degrees to the common ancestor on the maternal
side, he is sapinda to MF and G is within five degrees to the common ancestor on paternal side, she is
sapinda to MF. P and G are, therefore, also sapindas to each other.
IV. If the boy and the girl are sapindas to the common ancestor, they will be sapindas to each other. If one of
them is not a sapinda to the common ancestor, they would not be sapindas to each other, even if the other
is sapinda to the common ancestor. It need not be added that if both are not sapindas to the common
ancestor, they cannot be sapindas to each other.

In the preceding three diagrams, both P and G are sapindas to the common ancestors, and hence are
sapindas to each other. We would illustrate the latter proposition with the help of the following two
diagrams:—

In this diagram G (MFFFSD) is tracing her relationship on the paternal side, i.e., through her father, to
MFFF, the common ancestor who is her father’s father. Since she is tracing through her maternal side
she would be sapindas to the common ancestor if she is within three degrees. In fact, she is within
three degrees and hence she is a sapinda to the common ancestor. P is also tracing his relations on
the maternal side, i.e., through his mother. MFF, the common ancestor is his mother’s father’s father’s
father. Since P is tracing his relationship to the common ancestor through maternal side, he would be
sapinda to him if he is within three degrees. In fact, the common ancestor to him is in the fifth degree of
ascent, and hence he is not sapinda to the common ancestor. Since G is a sapinda to MFFFF, the
common ancestor but P is not sapinda to him, P and G are not sapindas to each other.

In the above diagram, MFF being in fourth degree of ascent to P on the maternal side. P is not a
sapinda to the common ancestor. Similarly, G (MFFSSSSD) being in sixth degree of ascent from the
common ancestor on the paternal side, is not sapinda to the common ancestor. Hence P and G are not
sapindas to each other.
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V. In conformity with the modern trends, the Hindu Marriages Act, 1955, recognizes both legitimate and
illegitimate relationships for the purpose of determining sapinda relationship. Similarly, sapinda relationship
exists between full blood relationships, half-blood relationships and uterine blood relationships. It also
exists by natural birth as well as by adoption.

When a person is born within a lawful wedlock, he is a legitimate child and this is called legitimate
relationship, whereas person is born outside the lawful wedlock, he is an illegitimate person and this is
called illegitimate relationship.

Where both the parents of two persons are the same it is known as relationship by full blood1. When
father of the two persons is the same but mothers are different, it is known as relationship by half
blood1. When mother of two persons is the same but fathers are different, it is known as relationship by
uterine blood2.

When a person is an adopted child, the relationship is by adoption3. When a child is begotten by a
person on his wife, he is known as natural born child, and this is known as natural relationship.
VI. The expressions, “through the father” and “through the mother” mean, in our submission, paternal and
maternal lines. We should clearly understand the meaning of these relationships, as our lack of
understanding may render a marriage void. This relationship can be traced directly to one’s ancestor or
ancestress or it may be traced indirectly through a common ancestress or ancestor. When we have to
determine the relationship of two directly, we have to see as to through whom he or she is tracing his or
her relationship. If relationship is wholly traced through male ancestors, it is a paternal line. For instance,
G, a girl when traces her relationship to the paternal great-grandfather, she is tracing it through her father’s
father’s father, and since all relations between her and the paternal father are males, it is a paternal line, or
relationship is traced through the father. On the other hand, if one wants to know how G is related to her
maternal great-grandfather, one finds in between her and the maternal great-grandfather, the relations are
mother and mother’s father, it is a maternal line because mother intervenes.

When to trace their relationship through a common ancestor, as has been seen earlier, that on both
sides the relationship may be traced through a father (paternal line) or through the mother (maternal
line) or on one side through the father or on other side through the mother. Whenever the relationship
is traced wholly through the males, i.e., when relations between the persons concerned (the girl or boy
for whose marriage this exercise is done) and the ancestor or common ancestor are all males, the
relationship is paternal or traced through the father. Here we are not concerned with the sex of the
person concerned or of the ultimate or common ancestor. On the other hand, if in between the person
concerned (girl or boy) and the ancestor or common ancestor, a female intervenes anywhere in the
line, the relationship is maternal or through the mother.

In most of the cases, there is no difficulty. Thus, when one wants to know as to how is P, a Hindu male or Hindu
female (here it is immaterial as to whether the person concerned is a boy or girl) is related to his or her paternal
great great-grandfather, one knows that it is a paternal line as between him or her and the ultimate ancestor, all the
ancestors are male. Similarly, there is no difficulty in saying that it is a maternal line when P, a Hindu male or
female, want to know as to how he or she is related to his or her maternal great great-grandfather. There should
equally be no difficulty when two are tracing their relationship through a common ancestor. In such a case, they are
collaterals and each has his own line of ascend. For instance, if one wants to know how P and G are related to the
common ancestor and we find that P is G’s maternal uncle’s son, then one knows G is tracing her relationship
through her mother and thus it is a maternal line, while P is tracing his relationship to the common ancestor through
his father and thus it is a paternal line. This may be depicted by the following diagram:—

Take two more illustrations:—

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In the above diagram if one wants to know as to how P, a boy is related to G (FFFMSSD), a girl, and to know
whether they are or are not sapindas to the common ancestor, one has to know how are they tracing their
relationship to the common ancestor. Here P is tracing his relationship to the common ancestor FFFM (who is a
female) wholly through males, i.e., his father, his father’s father and his father’s father’s father. This is a paternal
line. G is tracing her relationship to MFFM through a female, i.e., her mother, in between are two males, her
mother’s father and her mother’s father’s father. This is a maternal line, because of G’s mother, FFFMSSD. On
knowing this, we can say that they are not sapindas to each other, as P on his paternal side is within five degrees to
the common ancestor and thus a sapinda, but G on her maternal side is beyond three degrees to the common
ancestor (the common ancestor is fourth degree of ascent) and thus is not a sapinda to the common ancestor.

In the above diagram if one wants to know as to whether G, a girl is sapinda to P (FFFSSS) a boy. It can easily be
seen that both G and P are tracing their relationship to the common ancestor wholly through males. The common
ancestor is fourth degree of ascent to G and fifth degree as ascend to P and thus both are sapindas to each other.

But some difficulties in determining whether a line is paternal or maternal arise in a case where immediate ancestor
is a male, though in between there is a female (or there are two or more females). This may be illustrated from the
following diagram:—

In this diagram, there is no difficulty in saying that G is tracing her relationship to the common ancestor on paternal
side. It is submitted that P (FFFSDSS) is tracing his relationship to the common ancestor FFF on the maternal side
because in between him and the common ancestor, there intervenes his father’s mother; the common ancestor is
his father’s mother’s father’s father. It should be noticed that P’s immediate ancestor is a male, his father. Some
hold the view that since the words in the section are “through the father”, if the immediate ancestor is father the
computation of the degrees is to be upto five degrees. In other words it should be regarded as paternal line. Thus,
Desai says that the words “through the father” and “through the mother” are to be given literal interpretation1.
According to him if the immediate ancestor is a male (even if a female intervenes in the line), the computation of
degrees will be made upto five degrees, and if immediate ancestor is a female, it will be made upto three degrees.
This creates an unnecessary confusion, though this confusion is traceable to some of the commentators,
particularly to the authors of the works like the Nirnaya Sindhu and the Dharma Sindhu who took the view that the
limitations of five degrees is only as regards to bandhus related through one’s mother and not to cognates related
through one’s father’s mother, as these must be deemed to be in the father’s line and therefore, the limitation of
seven degrees applies, i.e., sapinda relationship can go upto seven degrees. (Here the subject is being discussed
on the basis of old degrees of sapinda relationship: upto seven degrees on the paternal side and five degrees on
the maternal side.) In short, the father’s maternal side is placed on the same footing as one’s maternal line. That
this is an incorrect view has been demonstrated by Vijnaneshwara. The computation of degrees from the father is
contemplated by him only of the ancestors in wholly male line, or descendants in the male line or collaterals in the
male lines, since all of them have to be sagotra sapindas. The Mitakshara makes a clear-cut distinction between
sagotra sapindas and bhinna-gotra sapindas. The seventh degree rule is applied only to sagotra sapindas.
Vijnaneshwara makes no distinction between one type of bhinna-gotra sapindas and another or others, and
nowhere he states to different limits of sapinda relationship for different groups of bhinna-gotra sapindas. Thus, the
Mitakshara without an iota of doubt lays down seven degree rule only for sagotra sapindas and to none else. The
absurdity of the above views comes to clear relief when we realize that the interpretation placed by the above
works, leads to the result that one’s own maternal line is shortened to five degrees but one’s father’s maternal is
lengthened to seven degrees. The fact of the matter is that in one’s own maternal line one at least offers pindas to
all the immediate male ancestors of the mother upto five degrees (reckoning from oneself), but one offers no pindas
to any one of the ancestors on the father’s maternal side. Father’s mother is counted as a degree, it is in fact his
father’s maternal line—it is a different family altogether just as one’s own maternal side: The relationship in that
family is not traced through his father but through his father’s mother. In the words of Mayne:
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It is wrong to impute to Vijnaneshwara that he intended, without any principle or reason, to mean by the father’s line, also
the father’s mother’s line and that he bracketed together the sagotra sapindas and the bhinna-gotra spindas of one’s father
in the same category. On the other hand, Vijnaneshwara groups pitra bandhus and matri bandhus together and, among
atmabandhus, brings in the maternal uncle’s and maternal aunt’s sons along with the paternal aunt’s sons. Moreover, the
reasonable inference seems to be that the reference to ‘mother’ in the limitation of five degrees is for the purpose of
indicating cognate relationship generally. As is not unusual in other parts of the Mitakshara, the word ‘mother’ may well be
taken to refer to any female ancestor whose intervention anywhere in the line causes a change of gotra or family1.

The author of Nirnaya Sindhu, Kamalakara attempted another distortion by saying that a bridegroom in the eight
degree should not marry a bride in the second degree or third degree from the common ancestor, because even
though the bride was not sapinda to the bridegroom, as the bride was within five degrees from the common
ancestor, he became sapinda of the bride also2. This is a wrong view and Balambhatta rightly says that if there is
an absence of sapinda relationship in one direction, there must necessarily be absence of sapinda relationship in
the reverse direction also.

In the words of Mayne:

This (Balambhatta’s view) is plainly right, for this mutuality is implicit in all sapinda relationship, sapinda being a term of
correlation. It is impossible to see how the last samanodaka, or even one beyond, in one line of the common ancestor,
becomes a sapinda, if a collateral in the other line is a sapinda of the same ancestor, or how one who is not a bhinna-gotra
or sagotra sapinda of the common ancestor in one of the branches can become the bhinna-gotra sapinda of anyone in the
other branch where a female intervenes3.

Yet another distortion is sought to be introduced by the authors of Nirnaya Sindhu and Dharma Sindhu when they
say that even where sapinda relationship is broken in the middle, it continues afterwards like a frog’s leap, as where
it ceases with the daughter, fifth in descent from the common ancestor. Her son is not a sapinda but his daughter
(son’s daughter) will be sapinda. This may be depicted from the following diagram:

Thus according to them G (MMFFFSSDSD) and P are sapindas, since G traces her relationship through her father
and thus the limit is seven degrees. But G’s father is not a sapinda, since he traces his relationship through his
mother. Thus, in this reckoning daughter is a sapinda but her father is not a sapinda. It is submitted that to say that
the person in the sixth degree is not sapinda of an ancestor but the one in the seventh is to impute absurdity to
Vijananeshwara (this is under old Hindu Law).

The limit of five degrees applies to bhinna-gotra sapindas (cognates). According to Mayne, the correct rule is:

Count inclusive of the common ancestor in the line or lines in which a female intervenes, five degrees and in the line in
which there is no female, seven degrees; if the claimant and the propositus, in their respective lines, are within those
degrees, they are bandhus of each other; but if either or both of them are beyond those degrees, they are not bandhus of
each other. An equally good working rule is: begin with the claimant and the propositus (or the bride and the bridegroom as
the case may be) and count inclusive of both; seven or five degrees upwards according to their relationship with the
common ancestor is in the father’s male line or in the line where a female intervenes respectively; and if the common
ancestor is reached within those degrees on both sides, then they are sapindas. They are bhinna-gotra sapindas if in either
or in both lines a woman intervenes. They are sagotra sapindas, if in either line, a woman intervenes.1

Desai and other who take similar view of sapinda relationship under the Hindu Marriage Act, 1955, have obviously
received their inspiration from the works like the Nirnaya Sindhu and Dharma Sindhu. Desai supports his view on
the basis of literal construction of words, “through the father” in clause (6) of section 3 of the Hindu Marriage Act,
1955. But that this would result in enlarging one’s father maternal line,Desai has no reply. The sapinda relationship
according to Desai may be depicted thus:
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It should be evident that in the normal reckoning P is sapinda to M and MF on maternal side and to F, FF, FFF and FFFF
on the paternal side; he is also sapinda to FM, his father’s mother, but it is submitted that he is not sapinda to FMF and
FMFF. But according to Desai he is sapinda to these also. The net result is P’s own mother’s line ends with his maternal
grandfather but his father’s maternal line goes upto his father’s maternal great grandfather. This is obviously absurd.
Parliament in enacting the Hindu Marriage Act, 1955, has reduced the degrees of sapinda relationship on either side by two
degrees. There cannot be greater absurdity than this: one’s own maternal great-grandfather is not one’s sapinda but one’s
father’s maternal great-grandfather is, while the former’s only three degrees of ascend from maternal side, while the latter is
five degree of ascent.

The literal interpretation leads to further complication and anomalies. This may be illustrated from the following:—

G is obviously sapinda to FFF as she is tracing her relationship to FFF wholly through the paternal side. FFFSDS is also
obviously not a sapinda to FFF as he is tracing his relationship through his mother. It is submitted that his son P
(FFFSDSS) is also not be sapinda to FFF, but according to Desai he is, since his immediate ancestor is a male—he is
tracing his relationship through his father. In the result it is forcefully submitted that though father is not a sapinda but son
is, which is obviously an absurd view. It is a well-settled view that once a sapinda relationship terminates in one generation,
it cannot again come into existence in the next generation.
The doctrine of sapinda relationship by frog’s leap, as it has already been seen, has the support of no authority. All
commentators on the Mitakshara have rejected it.

How to determine sapindarelationship.—For the purpose of determining whether two persons are sapinda to
each other, one should take the following two steps:—

First step: The first step is to find out whether one is a direct ascendant of
the other. In case the answer is in affirmative, then, it should
be found out whether one is tracing one’s ascent to the other
through father or mother. If one is tracing it through father and
it is found that the other is within five degrees, then two are
sapindas. If one is tracing it through mother and it is found that
the other is within three degrees, they are sapindas to each
other. On the other hand, if in the former case, the other
person is beyond five degrees and in the latter case, beyond
three degrees they are not sapindas to each other.

Second step: In case one is not a lineal ascendant of the other, it should be
found out whether they have a common ancestor. In case they
have, it should be found out through whom, i.e., through the
mother, or through the father, the two are tracing their ascent
to the common ancestor. If both are sapindas to the common
ancestor, they will be sapindas to each other; in case one of
them is not sapindas to the common ancestor they will not be
sapindas to each other. Thus, if both are tracing their ascend
through the father and if both are within five degrees to the
common ancestor, they will be sapindas to each other. If both
are tracing their relationship to the common ancestor, through
the mother and if both are within three degree of ascent to the
common ancestor, they will be sapindas to each other. In case
one is tracing through the mother and the other through the
father, then if former is within three degrees and if the latter is
within five degrees to the common ancestor, they will be
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sapindas to each other. But, in all the above cases, if one of

them is not a sapinda to the common ancestor, they will not be
sapinda to each other1.

How sapinda relationship is to be determined in accordance with these rules may be illustrated with the help of the
following diagrams:—

Here G1 is P’s father’s father’s son’s son’s son’s son’s daughter and G2is his father’s father’s son’s son’s son’s
daughter. We find, FF is sixth degree of ascend to G1 on the paternal side and thus is not sapinda to FF, while G2is
in fifth degrees of ascent to the common ancestor on the paternal side, and thus is sapinda to FF. In the result G2 is
sapinda to P, while G2 is not sapinda to P.

In the above diagram G1 and B are sapindas to P as both are in fifth degree of ascent to the common ancestor FF
on the paternal side. But G2 is not sapinda as she is in the sixth degree of descent from the common ancestor FF
on the maternal side.

In the above diagram G1 and B are sapindas to P as the common ancestor FF is in the fourth degree of ascent in
the paternal line. But G2 is not a sapinda to P as she is in the fourth degree of descent from the common ancestor
on the maternal side.

In the above diagram B1is sapinda to P as he is in the second degree of descent from the common ancestor FF on
the paternal side G1is also sapinda to P, as she is three degrees in descent from the common ancestor FF on the
maternal side. But G2and B3are not sapindas to P as both are in the fourth degree of descent from the common
ancestor on the maternal side.

In the above diagram G1and B1 are sapindas to P as all the three are in the second degree of descent and are
brothers and sister. G2and B2 are also sapindas to P as they are three degrees in descent from the maternal side to
the common ancestor.

So far P’s sapinda relationship has been traced on the paternal side, that is to say to the collaterals from father,
father’s father, father’s father’s father and father’s father’s father’s father. In the same manner P’s sapinda
relationship can be traced from P’s maternal side. The following two composite diagrams to have been given to
illustrate P’s sapinda relationship on both maternal and paternal side. The diagrams are self explanatory:—
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In this diagram all the collaterals of P are sapindas to him.

P’s Sapinda relationship on Maternal side:

In this diagram G2B1, G4, B4, G6, G7, B6, B7, are not sapindas to P, the rest are sapindas to him.

Custom.—In Hindu law custom has played a great role. It has been given over-riding effect over Hindu law1. In
some matters custom has been retained even under the codified law. Sapinda relationship is one of them. If a
custom permits a marriage between two sapindas, the marriage will be valid.2
Degrees of Prohibited relationship

The second prohibition for marriage on the basis of relationship as laid down under the Hindu Marriage Act, 1955, is
called, “degrees of prohibited relationship”. As we have seen earlier, according to Vijnaneshwara, these relations all
came under the category of sapindas. However, with a view to better clarity, the Hindu Marriage Act, 1955, has put
them under the title, “degrees of prohibited relationship”. Here some relationship are by blood and some are by
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affinity. In some cases sapinda relationship and degrees of prohibited relationship overlap3. Section 3(g) of the
Hindu Marriage Act, 1955, thus lays down the “degrees of prohibited relationship”:

“Degrees of prohibited relationship”—Two persons are said to be within the “degrees of prohibited relationship.”

(i) if one is lineal ascendant of the other; or

(ii) if one was the wife or husband of lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s
brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two
brothers or of two sisters.

Just as in the case of sapinda relationship, so also in the case of degrees of prohibited relationship, relationships
may be by full, half and uterine bloods, illegitimate and legitimate blood relationship, and relationship by adoption as
well as by natural birth are recognized1.

The degrees of prohibited relationship fall under four categories.

In the first category are one’s lineal ascendants. One (a girl) cannot marry one’s lineal ascendants. This will be both
from the mother’s side as well as father’s side. If one would recall, a person is sapinda to four of his lineal paternal
ancestors and two maternal ancestors. Beyond that there is no sapinda relationship. But beyond that also marriage
cannot take place as all lineal ancestors of a person without any limit of degrees are persons within degrees of
prohibited relationship. The term “lineal ascendant” means as ancestor in the unbroken line of ascent. This may be
depicted by the following diagram, where G, a girl, cannot marry any of her ancestors.

In the second category fall certain relations by affinity. This category lays down that one cannot marry the wife or
husband of a lineal ascendant or descendant. The prohibition of marriage with these relations is without any limit of
degrees; it is infinite. These are the relations of a person through the marriage to his lineal ancestors or lineal
descendant. Thus, for instance, P, a Hindu male, cannot marry any of the wives of the lineal ascendant and
descendant shown in the following diagram.

In the above cases P cannot marry FW, FFW, FFFW, FFFFW, FFFFFW, (who are the wives or widows of his lineal
male ancestors) and MFW, MFFW and MFFFW (wives or widows of the maternal lineal male ancestors). Similarly,
he cannot marry SW, SSW, SSSW, SSSSW (who are wives or widows of his lineal male descendants) and DSW,
DSSW, DSSSW (who are the wives of the lineal descendants of his daughter.

The following diagram depicts some of husbands of lineal ascendants and descendants of G, a Hindu female,
whom they cannot marry:
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In the above diagram, G cannot marry FMH, FMMH and FMMMH who are the husbands of his lineal ancestors on
the paternal side, so also MH, MMH and MMMH who are lineal ancestors on the maternal side. She cannot also
marry the husband of any of the higher lineal ancestors. Similarly, G cannot marry SDH, SDDH and SDDDH who
are the husbands of her lineal descendants and DH, DDH, DDDH, DDDDH lineal descendants on her daughter’s
side.

Under the third category of degrees of prohibited relationship are also certain relations by affinity with whom
marriage cannot be performed, thus a Hindu male cannot marry:
(a) wife of his brother;
(b) wife of her father’s brother (paternal uncle’s wife i.e., chachi);
(c) wife of his mother’s brother (maternal uncle’s wife, i.e., mami);
(d) wife of grandfather’s brother (both on maternal side and paternal side);
(e) wife of grandmother’s brother (both on maternal and paternal side).

These are obviously near relations’ wives.

Categories from (a) to (d) are depicted by the following diagram:—

Category (e) is depicted by the following diagram:

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Note: FMFSW is paternal grandmother’s brother’s wife, and MMFSW is maternal grandmother’s brother’s wife.

The following is a composite diagram showing the wives of relations whom P cannot marry:—

In the fourth category of degrees of prohibited relationship fall the following persons who cannot inter-marry:—
(i) Brother and sister.
(ii) Uncle and niece (both on paternal and maternal side).
(iii) Aunt and nephew (both on paternal and maternal side).
(iv)
(a) Children of two brothers.
(b) Children of two sisters.
(c) Children of brother and sister.

These are obvious prohibited relationships. Unlike Muslims, Hindus do not permit marriage between first cousins.

Just as in the case of sapinda relationship, in the case of degrees of prohibited relationship, if custom permits a
marriage, between two persons within the degrees of prohibited relationship, the marriage will be valid1.
Muslim Law

The Koran enjoined:

Marry not those woman whom your fathers married. … Lo ! it was ever lewdness and abomination and an evil way.
Forbidden unto you are your mothers and your daughters and your sisters and your father’s sisters, and your mother’s
sisters, and your brother’s daughters and your sister’s daughters and your foster-mothers and your foster-sisters, and your
mothers-in-law and your step-daughters who are under your protection (born) of your woman unto whom you have gone in
but if he have not gone in unto them, then it is no sin for you (to marry their daughters) and the wives of your sons who
(spring) from your own loins. And (it is forbidden unto you) that he should have two sisters together, except what hath
already happened (of that nature) in the past2.

Broadly speaking prohibition for marriage under Muslim law may be classified under two heads:
(a) absolute impediments which render a marriage void.
(b) relative impediments which render a marriage irregular.

However, under the Shia law this distinction is not recognized and all impediment are of the same quality; they
render marriage void. This means that among the Shias all impediments are absolute.

The absolute impediments are:

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(a) prohibitions on the basis of consanguinity,

(b) prohibition on the basis of affinity, and
(c) prohibition on the basis of fosterage.

The relative impediments are:

(a) prohibition of unlawful conjugation,
(b) prohibition of marriage with a woman under iddat, and
(c) prohibition on marrying a person of unequal status.

The above prohibitions are applicable to both men and women.

Consanguinity

Like most other systems, Muslim law prohibits marriage with near blood relations. Prohibition on the grounds of
consanguinity is a prohibition to marry some of the blood relations. The Muslim law-givers reckon the prohibition
from the male’s side. The relations with whom a Muslim male is absolutely prohibited from marrying (violation of
which renders the marriage null and void) are:
(a) his mother or his grand-mother how high soever,
(b) his daughter or grand-daughter how low soever,
(c) his sister, full consanguine or uterine,
(d) his niece or grand niece how low soever, and
(e) his aunt or grand-aunt both on father’s side and mother’s side how high soever.

The expressions “how high soever” and “how low soever” means ascendants upto any degrees and descendants
upto any degrees. For example, one cannot marry his mother, mother’s mother, mother’s mother’s mother and so
on; or one cannot marry one’s father’s sister, father’s father’s sister, or father’s father’s father’s sister, and so on.
Similarly, one cannot marry one’s brother’s daughter, brother’s daughter’s daughter, or brother’s daughter’s
daughter’s daughter and so on. In some cases these degrees of ascent or descent are reckoned on both paternal
and maternal sides. Thus, one cannot marry his father’s sister as well as mother’s sister as well as ascendants upto
any degrees through them.

The prohibition on the ground of consanguinity is identical in all the schools of the Sunnis and the Shias.

However, under Muslim law there is no prohibition on marriage between first cousins. Marriages between children
of paternal and maternal aunts, and uncles how low soever are valid. Thus, marriages between first cousins
including all the first cousins, parallel as well as cross, does not create any bar to marriage. A Muslim can lawfully
marry his paternal or maternal uncle’s daughter, paternal and maternal aunt’s daughter, and any female cousin of
her father or mother. A female can, similarly, marry her paternal and maternal uncle’s son, paternal and maternal
aunt’s son, or any male cousin of her father or mother.

Under Muslim law prohibition on the basis of consanguinity arises not merely on the basis of legitimate birth but
also on the basis of illegitimate birth. But under the Shia law prohibition of consanguinity arises on the basis of
legitimate birth alone—marriage within a lawful wedlock or semblance of a valid marriage—not if the off-spring is of
zina. Among the Shafis also prohibition on the basis of consanguinity does not apply to children born outside the
lawful wedlock, though a woman is prohibited from marrying descendants born of legitimate or illegitimate birth: by
adultery, zina or illicit relationship.

A marriage performed in violation of the prohibition on the basis of consanguinity is null and void under all the
schools of the Sunnis and Shias.
Affinity

Many systems of world prohibit a person from marrying certain persons with whom relationship arises because of
marriage. Thus, as we have seen, Hindus prohibit one from marrying his brother’s widow (unless custom permits it)
or wife or husband of one’s lineal ascendants or descendants.

Under Muslim law, prohibition on the ground of affinity relates to prohibition of marrying certain persons, relationship
with whom arises on account of marriage. The peculiarity of this doctrine is that all the schools of Muslim law both
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of the Sunnis and the Shias, with the exception of the Shafii school, hold the view that relationship by affinity comes
into existence, not merely when a marriage is valid but also when it is invalid. Not merely this, relationship comes
into existence from an adulterous connection, and a person is prohibited from marrying all relations of the woman
with whom the relationship by affinity would have arisen, had he married her1. The Shafiis do not subscribe to this
view, and the prohibition of affinity does not arise on the basis of adulterous relationship. The Shias, on the other
hand go a step further, and hold the view that a perpetual prohibition arises by any impudicity between two
adolescent youths2. All the schools of the Shias and the Sunnis agree that, once a valid marriage is contracted, the
prohibition by affinity arises, even though the marriage has not been consummated.

The prohibited relations on the basis of affinity are:

(i) one’s wife’s mother or grandmother how high soever,
(ii) one’s father’s wife or father’s father’s wife how high soever,
(iii) one’s wife’s daughter or grand-daughter how low soever, and
(iv) one’s son’s wife or son’s son’s wife how low soever.

The rule is also applicable to women. Thus, for instance, a woman cannot marry her daughter’s husband, or
daughter’s daughter’s husband3.

The prohibited relationship with wife’s daughter, or wife’s daughter’s daughter, arises only if the marriage is
consummated.

Prohibition on the basis of affinity is not dependant upon the fact whether or not marriage has been consummated,
thus one cannot marry mother or grandmother of his wife irrespective of the fact whether marriage has or has not
been consummated1, with one exception. This exception relates to wife’s daughter—daughter from her former
husband. One is prohibited from marrying his wife’s daughter only if marriage with the wife has been
consummated2. In this case actual consummation of marriage is required; valid retirement is not enough. The Shia
law also prohibits marriage with wife’s daughter if marriage has been consummated. Under Shia law a person can
marry his wife’s daughter only after the man has divorced his wife—the mother of the daughter2. It also prohibits
marriage with wife’s mother, irrespective of the fact whether marriage has or has not been consummated.

Under all schools of Muslim law marriage with wife’s daughter will be valid only when he had divorced his wife.

It appears that the prohibition on the basis of affinity does not apply in the case of irregular marriages.3

The prohibition of affinity does not apply to the following persons and marriage with them is valid:—
(a) daughter or mother of father’s wife (other than the mother), there being no prohibition against the man
marrying a woman and the son marrying her daughter or mother;
(b) paternal and maternal cousins;
(c) step-daughters of the wife (i.e., daughter of the woman’s former husband by another wife).4

A marriage in violation of prohibition on the basis of affinity render the marriage null and void, both among the Shias
and Sunnis.
Fosterage

The relationship of fosterage arises because of the fact that a child is fed on the breast of a woman who is not his
mother. Muslim law prohibit marriage with the foster-mother as well as most of the relations of the foster parents the
same as if the relationship arise on the basis of consanguinity. The expression “fosterage” means that a child has
suckled milk from the breast of a woman (not his mother) for a certain duration. The duration is known as period of
fosterage. When a child has suckled milk on the breast of a woman during the fosterage period, Muslim law
recognizes this relationship with not merely the woman but also her husband. They become his or her foster
parents. This relationship results in prohibition from marrying certain persons with whom relationship arises through
foster parent. It is almost at par with natural relation of consanguinity. All those persons with whom a marriage is not
possible on the ground of consanguinity become also prohibited with whom relationship arises on account for
fosterage. In short, foster-parents are like natural parents5. Thus, a person cannot marry his foster-sister just as he
cannot marry his natural sister. It is unlawful to marry one’s foster-mother, foster-father, foster-brother, foster-sister,
foster-nephew, etc.
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All schools of the Sunnis and the Shias agree that prohibited relationship arises on the basis of fosterage, but they
differ in detail. The Shias take the view that foster relationship arises only when the child has been actually
nourished at the breast of the foster-mother; in that case all prohibited relationships arise as they arise on the basis
of consanguinity or affinity. The Sunnis do not go to that extent. They permit a marriage with the following foster
relations:—
(a) marriage of the father of the child with the mother of his child’s fostermother,
(b) marriage with her daughter,
(c) marriage of the foster-mother with the brother of the child whom she has fostered, and
(d) marriage with the foster-mother of an uncle or aunt. 1

Under the Shia law every person in the relation of child to the husband either by natural descend or fosterage is
prohibited to the foster child and the latter cannot marry him. However, it is only those persons related to the child
by natural descent are prohibited to the foster child but not those related to him by fosterage.

Prohibition of fosterage arises in the following two circumstances2:—

(a) On a woman taking another’s child to nurse, the prohibition of fosterage arises and a marriage between the
child and the foster-mother and all the relations within the prohibited degrees of consanguinity becomes
unlawful.
(b) On a woman feeding two children male and female on her breast, the prohibition by fosterage arises
between the two children.

Under the Shia law no foster relationship arises between brothers and sisters of two children of two different
families suckled by a single woman and marriage between them is lawful, provided the milk has been caused by
different men, not otherwise.

Muslim law lays down five conditions for the creation of prohibition on the basis for fosterage.

Mode of feeding the child on foster milk.—It is not necessary that the child must be directly breast-fed. Even if
when milk is taken out of the breast of the foster-mother and is poured into the mouth of the child by spoon, sponge
or feeding bottle, the prohibition will arise3. This is the Hanafi and Shafii law.

But Shia law insist that child must be breast-fed, otherwise prohibition will not arise.4

Quantity of milk.—How much quantity of milk a child takes is not material but whatever quantity of milk child takes
should reach its stomach.5

Shia law lays down that there should be 10 to 15 acts of suckling which should be continued for a day and night,
each act should be complete. All acts should be consecutive, i.e., the same woman should continue to feed the
child and no other woman should feed the child on her breast in between1.

Shafii law considers four-five acts of suckling as sufficient2.

Quality of milk.—The milk may be of any quality. But if the milk is taken out of the breast and is churned, thickened
or made into cheese or dried into powder or made into whey or curd, then no prohibition on the basis of fosterage
arises3. Shia law insists that milk must be given to child in its natural state, otherwise prohibition will not arise4.

Milk of woman having illicit relationship.—The prohibition of fosterage arises even if the foster-mother’s milk has
come out of her illicit relationship. Even the milk of virgin would result in prohibition.

But under the Shia and Shafii laws milk must be the result of legitimate relationship. If it has been caused by illicit
relationship no prohibition arises5.

When milk of two women is mixed together, there is controversy among the schools.

Duration of fosterage.—Abu Hanifa lays down a period of 30 months as the period of fosterage but most authors
of Muslim law put it two years6. Once the suckling period is over, illegality of fosterage is established. But if one
child stops feeding on the breast before the expiry of the period and the other child begins feeding of the breast of
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the woman before the expiration of the period of fosterage, the prohibition of fosterage is established between the
two7.

This limitation of fosterage is only between two different children fed on the breast of the same woman, but the
limitation does not apply between the foster-child and natural relations of the foster-mother. In their case limitation is
absolute8. If the foster-child is a girl then she is prohibited from marrying any of the sons of the foster-mother.

Under Muslim law relationship by fosterage is recognized only for the purpose of prohibition from marriage. It is thus
not recognized for the purpose of inheritance.

A marriage in violation of prohibition of fosterage is null and void.

Unlawful Conjugation
The Koran enjoined: “Ye are prohibited to take two wives two sisters…” The prohibition of unlawful conjugation lays
down that a man may not have at the same time two wives who are so related to each other by consanguinity,
affinity or fosterage, that if either had been a male, they could not have lawfully intermarried1. Thus, a person
cannot marry two sisters, or an aunt and her niece. The Shias permit a marriage with wife’s aunt, but one can marry
one’s wife’s niece only with the wife’s permission. The rule of unlawful conjugation applies only when the first
marriage subsists. Thus, if one has divorced his wife, then one is free to marry one’s wife’s sister or wife’s aunt. The
predominant view is that under the Sunni law such marriages are not void, but irregular2. Though Fyzee complains
that this is so by judicial legislation, otherwise in accordance with the Koran such marriage should be void.3 It is
submitted that the decisions holding such marriage as irregular are in consonance with the spirit of Muslim law
which leans heavily against illegitimacy. If such marriages are considered to be irregular, the children will be
legitimate, otherwise they will be illegitimate4.

Shia law is also to the same effect. But under Shia law a marriage in violation of the prohibition of unlawful
conjugation is void. Under Shia law, however, one may marry the niece of his wife with the latter’s permission. If
wife’s permission is not obtained, marriage is void. But one may marry an aunt of his wife and no permission of the
wife is required5.

Where a person after repudiating his wife desires to marry her sister, he must wait for the period of iddat, if wife is
not pregnant. If she is pregnant he should wait for nine months6.

When a Muslim marries two women who are prohibited to him on the basis of unlawful conjugation by a single
contract, then, it seems, marriage with both women would be irregular. But if he marries them by two separate
contracts, then the marriage under the later contract will be irregular. But if the marriage with one of them is void or
irregular (for any other cause, just as if one of them when married was undergoing iddat) then the marriage with the
other woman will be valid, irrespective of the fact that in point of time it is a later marriage.

The Shia authorities differ. One view is that marriages with both women are void. The other view is that it is for the
husband to choose which of the marriage he considers valid.

Marriage with a Woman Undergoing Iddat

This is unique feature of Muslim law that it prohibits remarriage for a certain duration—called the period of iddat—
after the dissolution of a marriage either by death or divorce. This is to avoid confusion of paternity. (Under Hindu
law, section 15 of the Hindu Marriage Act, 1955 enacts somewhat analogous provision). Thus, let us first
understand the term“idda” or “iddat”. The Muslim law lays down that when a marriage is dissolved by divorce or
death, the woman must wait for some time before she can remarry. This period during which she is prohibited for
remarrying is known as idda. The abstinence from remarrying is imposed with a view to ascertaining the pregnancy
of the woman, so as to avoid confusion of paternity. The different period of idda are provided depending upon the
manner in which the marriage is dissolved. Thus, when a marriage is dissolved by divorce, the woman must
perform idda of three menstruation courses, if she is subject to them, if not of three lunar months. If it is found that
she is pregnant, then the period of idda continues till she delivers the child. But if the marriage has not been
consummated, she is not bound to observe any idda and is free to remarry immediately. When the marriage is
dissolved by death of the husband, the wife is to observe idda, whether the marriage is consummated or not, for a
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period of four lunar months and ten days. If the woman is pregnant at the time of the death of the husband, then the
period of idda is four lunar months and ten days or until delivery, whichever period is longer. The period of idda
commences immediately from the day the marriage is dissolved, even though the woman may come to know of the
divorce or death of the husband later on. And if she comes to know of it only after the termination of the period of
idda, she need not perform any idda.

Muslim law lays down that one should not marry a woman who is undergoing idda. Not merely the woman is
prohibited from marrying during the period of idda, even the husband of the woman cannot remarry during the
period she is undergoing idda.

Menstruation during the period of idda affects its duration. Thus, suppose a husband divorces his wife before she
attained puberty, but a day earlier to the termination of the period of idda, she starts to menstruate, then she must
observe idda for three months beginning from the date she started to menstruate. Some authorities lay down if a
woman is undergoing idda and is subject to menstruation but ceases to be so before the completion of the period of
idda, then she must observe a fresh period of idda from the date she ceased to menstruate.

Under the Shia law a marriage with a woman under idda is void. But according to all the schools of Sunnis, such a
marriage is merely irregular1.

Marriage with a Person of Unequal status

The doctrine of equality in marriage reflects the Koranic enjoinment that all Muslims are brothers. In the family law it
means that marriage should be between two equals. The Hedaya lays down: “cohabitation, society and friendship
cannot be completely enjoyed excepting by persons who are each other’s equal … as a woman of high rank and
family would abhor society and cohabitation with a mean man; it is requisite, therefore, that regard be had to
equality with respect to the husband, that is, the husband should be equal of the wife”2. In Muslim law this principle
has come to mean that the man should be equal to woman, though the woman need not be equal to man, since it is
asserted, that the husband can raise her to his own rank3.

The Hanafi law lays down several conditions of equality, such as the family must be equal, the man should be free
Muslim of good character and good means1. According to the Malikis and the Shias, only two conditions are
necessary, viz., the man should be a Muslim and should have ability to maintain his wife2. In its application to
modern conditions, how far the doctrine of equality can be applied, is doubtful. If a minor has been married to a
totally unsuitable person, then, in certain cases, the minor has the opinion of repudiating the marriage on attaining
majority. But if an adult marries herself to an unequal person, it is submitted, no court of law in India can annul such
a marriage. Amir Ali opines that if a woman were to contract a runaway marriage with a servant of the family, then
such a marriage would be annulled on an application from the wali3. It is submitted with great respect that this
cannot be so even if the girl happens to be a princess or a daughter of a great industrialist. Fyzee also seems to
support Amir Ali’s view. According to him, the rule may be formulated thus: “Where a woman, being of age,
contracts herself in marriage with a man who is not her equal (ghayr kuf), without the consent of any of those male
relations who would be entitled to be guardians of her marriage (wali) if she were a minor, the court on the
application of such relations has the power to rescind the marriage”4.

This is rather a peculiar position. If the so-called wali (there is no wali of an adult girl in the Hanafi law) does not file
proceedings, such runaway marriages will be valid. Thus, the custodian of equality is the so-called wali. It is
submitted no court of law in modern India will hold such marriages invalid5. However, there is a possibility of
developing law of annulment of marriage on the basis of this doctrine in another direction. The doctrine of equality
should apply to physical capacity. If either party turns out to be impotent, then the other party should have a right to
get the marriage annulled. But then, it should be clear, it is submitted, that the right of getting the marriage annulled
belongs to either party to the marriage and not to the so-called wali.
Christian Law

The Indian Christian Marriage Act, 1872 does not specifically provide for prohibitions on the basis of relationship.
Section 88 of the Act merely lays down that a marriage which is forbidden by the personal law of parties is not valid.
That section runs:

Nothing in this Act shall be deemed to validate any marriage while the personal law applicable to either of the parties
forbids him or her to enter into.
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This would include prohibitions based on blood relationship as well as by affinity6. Section 19(2) of the Indian
Divorce Act, 1869 lays down that the court may pass a decree declaring it null and void on the ground that “the
parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity”.

Personal law under section 88 of the Indian Christian Marriage Act, 1872 includes any personal law of either party
which forbids marriage between the two1. Thus, a marriage between a Roman Catholic female and Jew male is null
and void as the Roman Catholic law forbids such a marriage2. But a marriage between a Roman Catholic man and
a Protestant woman in a Protestant Church by a Protestant Pastor is not invalid under the Act.

It would appear that prohibitions to marriage under the personal law of parties would include only those prohibitions
which render a marriage null and void.
Parsi Law

The Parsi Marriage and Divorce Act, 1936 lays down prohibition to marriage on the basis of consanguinity and
affinity in Schedule I to the Act. These are:

A man shall not marry his—

1. Paternal grandfather’s mother.

2. Paternal grandmother’s mother.

3. Maternal grandfather’s mother.

4. Maternal grandmother’s mother.

5. Paternal grandmother.

6. Paternal grandfather’s wife.

7. Maternal grandmother.

8. Maternal grandfather’s wife.

9. Mother or step-mother.

10. Father’s sister or step-sister.

11. Mother’s sister or step-sister.

12. Sister or step-sister.

13. Brother’s daughter or step-brother’s daughter, or any direct lineal descendant of a brother or step-brother.

14. Sister’s daughter or step-sister’s daughter, or any direct lineal descendant of a sister or step-sister.

15. Daughter or step-daughter, or any direct lineal descendant of either.

16. Son’s daughter or step-son’s daughter, or any direct lineal descendant of a son or step-son.

17. Wife of son or step-son, or of any direct lineal descendant of a son or stepson.

18. Wife of daughter’s son or of step-daughter’s son, or of any direct lineal descendant of a daughter or step-
daughter.
19. Mother of daughter’s husband.

20. Mother of son’s wife.

21. Mother of wife’s paternal grandfather.

22. Mother of wife’s paternal grandmother.

23. Mother of wife’s maternal grandfather.

24. Mother of wife’s maternal grandmother.

25. Wife’s paternal grandmother.

26. Wife’s maternal grandmother.

27. Wife’s mother or step-mother.

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28. Wife’s father’s sister.

29. Wife’s mother’s sister.

30. Father’s brother’s wife.

31. Mother’s brother’s wife.

32. Brother’s son’s wife.

33. Sister’s son’s wife.

A woman shall not marry her—

1. Paternal grandfather’s father.

2. Paternal grandmother’s father.

3. Maternal grandfather’s father.

4. Maternal grandmother’s father.

5. Paternal grandfather.

6. Paternal grandmother’s husband.

7. Maternal grandfather.

8. Maternal grandmother’s husband.

9. Father or step-father.

10. Father’s brother or step-brother.

11. Mother’s brother or step-brother.

12. Brother or step-brother.

13. Brother’s son or step-brother’s son, or any direct lineal descendant of a brother or step-brother.

14. Sister’s son or step-sister’s son, or any direct lineal descendant of sister or step-sister.

15. Son or step-son, or any direct lineal descendant or either.

16. Daughter’s son or step-daughter’s son, or any direct lineal descendant of a daughter or step-daughter.

17. Husband of daughter or of step-daughter, or of any direct lineal descendant of a daughter or step-daughter.

18. Husband of son’s daughter or of step-son’s daughter, or of any direct lineal descendant of a son or step-son.

19. Father of daughter’s husband.

20. Father of son’s wife.

21. Father of husband’s paternal grandfather.

22. Father of husband’s paternal grandmother.

23. Father of husband’s maternal grandfather.

24. Father of husband’s maternal grandmother.

25. Husband’s paternal grandfather.

26. Husband’s maternal grandfather.

27. Husband’s father or step-father.

28. Brother of husband’s father.

29. Brother of husband’s mother.

30. Husband’s brother’s son, or his direct lineal descendant.

31. Husband’s sister’s son, or his direct lineal descendant.

32. Brother’s daughter’s husband.

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33. Sister’s daughter’s husband.

Mental Capacity

Age of Marriage
Almost all system of law have permitted marriages at an early age, and age of marriage and age of majority have
been different. Usually girls have been permitted to marry between the ages of 13 and 16, though in most systems
the permission or consent of the guardian for marriage have been required, if parties are below certain ages.
Attainment of puberty has been generally considered to be the age when marriage is permissible. Thus, Muslims
have left that matter to attainment of puberty at which age a person, both male and female, is permitted to marry. A
child below the age of puberty has been permitted to marry with the consent of the guardian for marriage. The
Hindu sages have enjoined that a girl should be married before she attained puberty, though they laid down the age
of 25 for the boys—the age when a child returned from the guru’s ashram after completion of his education. English
law still permits the marriage of any person who has attained the age of sixteen years. Before 1929, a girl could
marry at 12 and a boy at 14, and a marriage below these age was not void, but voidable on attainment of majority.
The English court have recognized as valid a foreign marriage between parties one or both of whom were under the
age of sixteen1. Non-Indian Christians can still marry in India at that age and even below that age with the consent
of the guardian.

There is a movement all over the world for raising the age of marriage. There are basically two reasons: (a) to
prohibit child marriage, and (b) raising the age of marriage as an instrument of population control. With a view to
achieving the former objective, the United Nations on December 12, 1962, passed the convention on consent to
Marriage, Minimum Age for Marriage and Registration of marriages. England has not yet raised the age of marriage
above sixteen despite several attempts. They had the Reports of Latey Committee (The Committee on Age of
Marriage) 1967, the Kilbrandon Committee, 1969 and the Law Commission, 1970.

In this context India’s record of raising the age of marriage is not bad. The Family Planning Council recommended
that the age of marriage for girls should be raised to 21. (The Council did not say anything about the age of boys).
Again in 1976, the Central Council of Health and Family Planning reiterated its earlier recommendation of raising
the age of marriage.

Statistically looked at, resulted gains of the raising of the minimum age of marriage appear to be very sanguine. The
child bearing age in India is considered to be between 16-44 years. On the average, during the age, a woman can
have six to seven children. If the minimum age of marriage of women is raised to 21 years (this was the suggestion
of the Family Planning Council) it would mean that each Indian women would have two children less. With a
population of about 70,00,00,000, the compulsory reduction of two children per women would go a long way in
containing our population explosion. To this should be added the legitimate belief that a mature girl will be more
easily amenable to birth control. But these statistics will be true only if the law that purports to raise the minimum
age of marriage is really an effective measure.
Hindu Law

Under the Dayabhaga school, the age of marriage was completion of 15th year, while under the Mitakshara school
it was completion of 16th year. The Hindu sages enjoined that it was the religious duty of the father to give his
daughter in marriage before the signs of puberty made appearance1. Some sages even declared that if a girl was
not married after she attained the marriage-age, she was at liberty to choose a husband for herself2.The Hindu
Marriage Act, 1955 originally laid down the age of fifteen for girls and age of eighteen for boys. These ages were
raised to 18 and 21 respectively by the Child Marriage Restraint (Amendment) Act, 1978. Section 5(iii) of the Hindu
Marriage Act, 1955 lays down that a marriage may be solemnized between any two Hindus if “bridegroom has
completed the age of twenty-one years and the bride the age of eighteen years at the time of marriage”.

But such is the policy of law that non-age does not render the marriage void or voidable. The marriage remains
valid. The 59th Report of the Law Commission felt that “the general understanding that the breach of that condition
does not affect the validity of marriage” should remain undisturbed3. The rationale behind this policy is that minor
marriages in our country are still so rampant that if we would lay down that non-age renders a marriage void,
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probably 80 per cent. of marriages would be rendered void. The objective of the policy is still to discourage child
marriages: to put a damper on them. But if performed, the validity of the marriage will not be affected. Marriages
solemnized in contravention of age are neither void nor voidable but are punishable under section 18 of Hindu
Marriage Act and Child Marriage Restraint Act, 1929 (19 of 1929)4. In pursuant to the policy of discouraging child
marriages, section 18(a) of the Hindu Marriage Act, 1955 attaches some penal consequences to the parties to child
marriages. It is provided that an under-age bride or bridegroom who procures a marriage for herself or himself is
punishable for a term of simple imprisonment which may extend to fifteen days or a fine upto Rs. 1,000 or both.

The amending law of 1976 has made another innovation. It lays down that if a girl was married before she attained
the age of fifteen years and if she repudiated the marriage before she attained the age of eighteen years
(irrespective of the fact whether or not marriage was consummated), then on this basis she can sue for divorce1.
The inspiration is from Muslim law.
Muslim Law

Under Muslim law a person who has not attained the age of puberty cannot marry. However, a child below the age
of puberty may be validly married by his or her guardian. The age of puberty under Muslim law is attainment of
fifteenth year2. The child who is married by the guardian while below the age of puberty, may repudiate the marriage
on attainment of puberty. If the child is married by his father or grandfather, he or she can repudiate the marriage
only if the latter acted fraudulently or negligently or the marriage was to the manifest disadvantage of the child. If
the child was married by any other guardian, he can repudiate the marriage on attaining the age of puberty,
provided the marriage was not consummated3. Now, in respect of the wife, the Dissolution of Muslim Marriage Act,
1939 lays down that a wife can sue for dissolution of marriage on the ground that she was married by her guardian
(who may be father or any other person) when she was below the age of marriage and she repudiated the marriage
before it was consummated and before she attained the age of eighteen years.4 But then, non-age does not render
the marriage null and void.
Special Marriage Act

Under the Special Marriage Act, 1954 the age of marriage for boy is twenty-one years and for girl eighteen years
and marriage below this age is void. In such a case estoppel does not apply5.
Christian and Parsi Law

The Indian Christian Marriage Act, 1872 lays down that if a non-Indian Christian is a minor,i.e., a person below the
age of twenty-one years (that is the definition of the minor under the Indian Christian Marriage Act), marries,
consent of the guardian is necessary6. After the coming into of the Child Marriages Restraint Act, 1929 as amended
in 1978, it seems that no Indian Christian below the age of twenty-one, if male, and below the age of eighteen, if
female can now perform a valid marriage. If no guardian of the minor is present in India, then consent may be
dispensed with1. For Indian Christian it is required that at the time of marriage the bride should not be less than
eighteen years and bridegroom should not be less than twenty-one years2. In both cases non-age does not render
the marriage void or voidable. The marriage remains valid marriage3. The Parsi Marriage and Divorce Act, 1936
after the amendment of 1988 lays down that no male below the age of twenty-one years and no female below the
age of eighteen can marry4. Marriage of a person below the requisite age is null and void under the Parsi Marriage
and Divorce Act, 19365.
The Child Marriage Restraint Act, 1929 and the Prohibition of Child Marriage Act, 2006

In the post First World War, in India, a movement for social and educational reform was fairly strong and several
measures of reforms were enacted. Pursuant to the same reformist zeal, the Child Marriage Restraint Act, 1929
was passed. The Act is popularly known as Sharda Act, on the name of the person who was responsible for this
reform.

The Child Marriage Restraint Act, 1929, applies to all marriages performed in India, including Hindu marriages,
Muslim marriages, Christian marriages and Parsi marriages.

The Child Marriage Restraint Act, 1929 was enacted with a very modest purpose in view. It does not purport to
prohibit child marriage, it merely wants to restrain them. Originally the term “child” was defined as “a person who if a
male was under the age of eighteen years, and if female, was under fifteen years of age”6. By an amendment of
1978, the ages have been raised to twenty-one and eighteen years respectively. The child marriages is defined as
“a marriage to which either of the contracting parties is a child7. ” The Act does not purport to render child marriages
as void8. Instead, it prescribes some penalties for those persons who are responsible for child marriages. Thus, if a
male below the age of twenty-one years and above the age of eighteen years performs a child marriage, he may be
punished for a term of simple imprisonment which may extend to fifteen days or a fine which may extend to Rs.
1,000 or with both4. If such a person is above the age of twenty-one years, then he can be sentenced to a term of
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simple imprisonment which may extend to three months and shall also be liable to fine (the amount upto which fine
may be imposed has not been laid down)9. Persons responsible for performing, conducting or directing child
marriages are also liable to punishment with a term of simple imprisonment which may extend to three months and
a fine may also be imposed on them10. Under this head will come the pandit, the mulla, the clergy or any other
person who performs the ceremony of the marriage. The agents, the go-betweens and all those persons who are in
any way responsible for the solemnization of the marriage would also fall under this category. However, any one of
those persons can escape the punishment if they are able to prove that they had reason to believe that the
marriage was not a child marriage. A like punishment can also be imposed on the person or persons under whose
care the child happens to be at the time of the solemnization of the marriage1. Under this category will come
parents and guardians of all shade, de jure as well as de facto. The Act raises a presumption of negligence against
the parent or guardian in whose care the child is2. A female party to the marriage is not liable to punishment3. Thus,
a woman of eighteen years who marries a boy of seventeen years cannot be punished under the Act. Similarly, a
female guardian cannot be punished. The baratis and the persons present at the reception also cannot be
punished.

The offences under the Act are not cognizable offences. This means that unless a complaint is filed, no
proceedings can be launched in a court of law.

This Act has been repealed by the Prohibition of Child Marriage Act, 2006. This Act received assent of the
President of India on 10th January, 2007. This Act has brought in significant changes in the area of child marriages.
The Act of 1929 has often been criticized as a toothless tiger, as a dog that barks but not bites.

The Act of 2007 would have far reaching ramifications. It being a secular Act, a piece of uniform civil code would be
applicable on all communities of India. This Act defines a child in case of males as being a person who has
completed the age of 21 years and in case of females as being a person who has completed the age of 18 years.
Another significant change brought by the Act is that it makes a child marriage voidable and in some cases void.
This is a drastic change in the sense that the old Act did not affect the validity of marriage. An underage marriage
being a perfectly valid marriage. A child marriage under the new Act is a marriage where either party or both are
children as defined by the Act and it is voidable at the option of the party who is the child.4 Further the Act provides
for the maintenance of the female spouse of such marriage5. Then provisions for custody and maintenance of child
of such marriages has been made6. Section 12 makes such marriages null and void in case the child is enticed or
taken away from the custody of his/her lawful guardian or is by force compelled or by deceitful means induced to go
from any place or is sold for the purposes of marriage and made to go through a form of marriage or if the minor is
married after which the minor is sold or trafficked or used for immoral purposes. Sections 9 and 10 prescribe
punishments. The former for the adult male marrying a minor girl, it being rigorous imprisonment up to two years or
fine up to one lakh rupees or both and latter being for punishment for any person who performs, conducts, directs or
abets such marriage.

Injunction to restrain child marriage.—The civil courts, under their ordinary civil jurisdiction and under section 12
of the Child Marriage Restraint Act, 1929 have, in the interest of the child, power to issue an injunction to prohibit a
child marriage from being performed1. Such an injunction may be issued by the court, if it satisfied from information
laid before it through a complaint or otherwise that a child marriage in contravention of the Act has been arranged
or is about to be solemnized. If such an injunction is disobeyed and marriage is performed, the court has power to
punish the offenders with a sentence of simple imprisonment of upto 3 months or with a fine of upto Rs. 1,000 or
with both1.2 But the marriage will be valid. It may be noted that, apart from the punishment provided in the Act of
1929 (as amended in 1978), the civil courts have power to issue attachment for contempt, and in cases of contempt
the powers of the court are wider.

The Andhra Pradesh High Court has held that under Hindu Law, marriage of minor girl below 18 years in neither
void nor voidable3. Though facts and circumstances of this case were different, i.e., the girl wanted to stay with the
husband but parents wanted to bring her back. But while rendering the judgment the Hon’ble High Court seems to
have overlooked the section 3 of Prohibition of Child Marriage Act, 2006 which makes such marriage voidable at
the instance of the minor spouse.

T. Sivakumar v. Inspector of Police Thiruvallur Town Police Station4, is a very elaborate analysis of this Act. It is a
full Bench judgment elaborating the scope of the Act. In this judgment certain issues have been addressed:—
(1) This Act being a special law would have overriding effect over the Hindu Marriage Act to the extent of any
inconsistency between the two enactments. Therefore, section 3 of this Act shall override Hindu Marriage
Act.
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(2) Marriage of a minor girl, that is, who is below 18 years is voidable and same shall subsist till annulled by a
court of competent jurisdiction.
(3) In a child marriage where an adult male married a minor female child, he shall not be the natural guardian
of such female child in view of the implied repeal of section 6(c) of the Hindu Minority and Guardianship
Act, 1956.
(4) Further he shall also be not entitled to custody of such female child. But court shall take into consideration
the permanent welfare of such female child notwithstanding legal right of person who seeks custody.
(5) Under section 3 the question as to whether minor has reached age of discretion would be a question of fact
and would be determined from case to case. There need not be a straight jacketed formula.
(6) If the minor girl has capacity and refuses custody of parents, she should be allowed to be kept in children’s
home but not observation homes meant for juveniles in conflict with law. In our submission she is a victim.
(7) Such minor girl would not be offender under sections 1, 5, 3, 9 of the Act nor under section 18 Hindu
Marriage Act nor a juvenile in conflict with law.
(8) The court observed that there are certain anomalies which Parliament shall take into consideration.

In our submission it is a very elaborate, well reasoned interpretation of the Act. Removing husband of minor girl as
her natural guardian is a welcome move.

Soundness of Mind: Insanity and Lunacy

Most systems of law agree that at the time of marriage both bride and bridegroom should be of sound mind. But
systems differ as to how much sanity is required to make a person fit for marriage. Some systems permit the
marriage of persons of unsound mind, even if idiots or lunatics with the consent of the guardian. This is so under
Muslim law even though it considers marriage as a contract. Even under English law (which has all along
considered marriage as a contract and hence at ecclesiastical law a marriage without true consent was null and
void and it was so considered under English law) after the coming into force of the Nullity of Marriage Act, 1971, a
marriage of a person of unsound mind is voidable. Among Hindus, during the Raj, marriages of idiots and lunatics
were considered valid if the guardian has consented to such a marriage.

Marriage contract has to be looked at from a different angle. In a sense, it is a very simple contract, which does not
need a high degree of intelligence to understand its nature and responsibility1. The English courts have said that
mental illness or deficiency would affect the validity of the consent if either spouse was at the time of the ceremony,
incapable of reason, or suffered from the deficiency of understanding the nature of marriage and the duties and
responsibilities it creates2. Thus, modern English law considers a marriage for lack of consent as merely voidable3.

Some of our personal laws still continue to adhere to the old concept, while some have made new innovations
following English law. Thus, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 has modified the
ground and borrowed it from the Matrimonial Causes Act, 1965, while under the other personal law unsoundness of
mind for marriage is equated with idiocy and lunacy,i.e., lunatics and idiots are not allowed to marry but those
persons of unsound mind who are not lunatics or idiots, it seems, can validly marry.
Hindu Law and Special Marriage Act

Judged from the point of view of objects of Hindu marriage, the mental and physical capacity should be considered
as vital for every marriage. The objects of Hindu marriage are: first, performance of religious rites and ceremonies,
and secondly, procreation of male issue. For the attainment of both these objectives both the mental and physical
capacity is necessary. But that is not the view taken by the courts. As usual ancient texts are conflicting.

In 1911, their Lordships of the Privy Council, in Maujilal v. Chakravarti1, expressed the opinion that the validity of
marriage on the ground of mental capacity must depend upon the degrees and held that, as in that case the person
in question was not a congenital lunatic, the marriage was valid. But in 1952, the Madras High Court and the
Allahabad High Court, held that the marriage of a congenital lunatic is valid under Hindu law.

Mr. Chief Justice Leach of the Madras High Court observed:

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It is undoubtedly abhorrent to the modern mind that a congenital idiot should be allowed to marry, but the Court can have
regard only to the personal law and the personal law of a Hindu undoubtedly does regard such a marriage possible2.

And Mr. Justice Collister of the Allahabad High Court said:

It seems to me that the Mitakshara contemplates that a Hindu lunatic may take a wife and that such a marriage will be
valid3.

In support of their views their Lordships quoted the following two texts:—

Sons of these persons (lunatic, impotent, etc.) whether they be the legitimate offspring or the issue of the wife, are entitled
to allotment, or are rightful partakers of shares provided they are faultless or free from defects which should bar their
participation, such as impotency or the like.4
But their sons whether legitimate or the offspring of the wife by a kinsman are entitled to allotment, if free from similar
defects5.

And finally their Lordships quoted the crucial text of Manu:

If the eunuch and the rest should somehow desire to take a wife the offspring of such among them as have children is
worthy of share6.

The conclusion could have been avoided had their Lordships looked into some other texts and had kept in view the
modern context.

The present writer in his article, Marriage of Lunatics Under Hindu Law7 has attempted to give a different
interpretation to the aforesaid text and has tried to say that Hindu sages did not permit a lunatic to marry, and that
the marriage of the lunatic was invalid.

The Hindu Marriage Act, 1955 originally laid down that neither party to the marriage should be idiot or lunatic1.
Originally, these were also the words used by the Special Marriage Act, 19542.These are the words used in the
Indian Divorce Act, 1869.3While under the Hindu Marriage Act, 1955 the marriage of the idiot or lunatic was only
voidable under the latter two statutes it was void.

Idiocy and Lunacy.—The Acts do not define the terms, idiocy and lunacy. The Federal Court4 as well as the Privy
Council5 said that there are various degrees of insanity and the fact that man has been adjudicated as a lunatic may
mean and imply that he is not competent to manage his own affairs, but it does not necessarily show that he suffers
from complete mental aberration. He may still have sufficient amount of reasons which enables him to understand
the ceremonies of marriage and take an intelligent part in them. It is submitted that this is a good clue to the
meaning of terms, ‘idiocy’ and ‘lunacy’. If the respondent, though suffering from some mental aberrations, is
capable of understanding the nature of marriage and the marriage ceremony, then he cannot be called a lunatic or
an idiot.

Lunacy is a ground for annulment of marriage under section 19(3) of the Indian Divorce Act, 1869. But mere
feebleness of mind is not lunacy.

The term lunacy in matrimonial law has a different meaning than is assigned to it in the common language. The
term ‘lunatic’ in its generic meaning includes every kind of unsoundness of mind except idiocy. However,
unsoundness of mind does not include weakness of mind. A moody person, a sanki, an eccentric, is not an insane
person. Similarly, obtuseness, stupidity, hypersensitiveness and foolishness do not amount to insanity; mere
abnormality does not amount to insanity or lunacy. Lunacy implies total mental aberration. A lunatic may be defined
as a person who has lost all his mental faculties and an idiot as a person who is devoid of all mental faculties. An
idiot is devoid of reason by birth. Idiots are born thus. The old Hindu law defined an idiot as a person who is
congenitally incapable of distinguishing right from wrong.6 A person cannot be called lunatic or an idiot if he
possesses mental capacity sufficient to understand the nature of marital obligation and willingness to shoulder
them1.

It is submitted that the framers of the Hindu Marriage Act, 1955 had the same meaning in their mind as was given to
these terms under pre-Act law. The definition of ‘lunatic’ given in the Lunacy Act, 1912 does not apply2.
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Idiocy or lunacy must exist at the time of the marriage, then alone marriage can be avoided. Supervening idiocy
(which is, rare) or supervening lunacy is not a ground for annulment of marriage, though it is a ground for judicial
separation or for divorce.

Idiocy or lunacy is a question of fact and the burden of proof lies heavily on the petitioner3. Lunacy cannot be
inferred from the fact that the respondent did not appear before the court as a witness4.

An interesting question may arise when both the parties are idiots or lunatics. It is not a case of recrimination.
Clause (b) of sub-section (1) of section 12 lays down that the marriage may be annulled if it has been performed in
contravention of the condition specified in clause (ii) of section 5. Clause (ii) lays down, ‘neither party is an idiot or
lunatic at the time of marriage’. Thus clause (ii) will be contravened if either party or both parties are idiots or
lunatics. If that is the case, then the marriage can be annulled if both the parties are idiots or lunatics. It is submitted
that this would also be a socially desirable interpretation. In the new version of insanity the wording are still “neither
party”, and thus, the position remains the same.

The Marriage Laws (Amendment) Act, 1976 substitutes this clause in both the Hindu Marriage Act, 1955 and
thespecial Marriage Act, 1954 with the following5:—
(b) at the time of marriage neither party—
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity or epilepsy.

Source and scope.—Under the Hindu Marriage Act, 1955 a marriage in violation of this clause is still voidable,
while under thespecial Marriage Act, 1954 it continues to be void. The inspiration for the clause is from the
Matrimonial Causes Act, 1965. It may be interesting to note that the Nullity of Marriage Act, 19711 has made some
changes. Thus the word “and the procreation of children” has been omitted from sub-clause (ii) and “epilepsy”2from
subclause (iii). The first sub-clause has been replaced with the following, “either party to the marriage did not validly
consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”. This clause also
covers the ground of voidable marriage in clause (iii) of section 25 of the Special Marriage Act, 1954 and clause (c)
of section 12 of the Hindu Marriage Act, 1955. Under the latter statute the words are: consent was obtained by force
or fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent.

Neither under English law nor under Indian law, this clause has come much for interpretation, except in a couple of
English cases. (It appears that under the modern English matrimonial law recourse to nullity proceedings is not in
vogue people go in for divorce generally). In India till this date there is no case in which interpretation of any of
these clauses has come for consideration. May be, due to failure to comprehend the exact import and scope of the
clause, or may be no lawyer could advise his client as to the fruitfulness of this clause which virtually comes to the
same thing.

All the three sub-clauses are independent.—It appears to be clear that all the three sub-clauses are independent
of each other, and if a case is covered under any one of these sub-clauses a decree annulling the marriage can be
passed3. All the sub-clauses relate to pre-marriage mental condition and not to post marriage mental condition.

Unsoundness of mind: Section 4(b)(i) of the Special Marriage Act, 1954 and section 5(ii)(a) of the Hindu
Marriage Act, 1955.—It seems that “unsoundness” of mind contemplated in the clause has to be such as to make it
impossible for the spouses to live a normal married life together and when there is no prospect of improvement in
mental health which would make it possible for them to do so in future. The state of mind envisaged is accordingly a
degree of unsoundness or incapacity of mind properly called insanity. The following phrase in connection with
matrimonial insanity which has been used in England from almost very beginning and which was statutorily laid
down in section 90 of the Lunacy Act, 1890 (English statute) and which has been borrowed in the definition of
“matrimonial insanity” and later on in the Indian statute is still key to the understanding of “matrimonial insanity.” The
phrase is “incapable of managing himself or herself and his or her affairs”. It should be remembered that the term
“affairs” includes the problems of society and of married life and that the test of ability to manage affairs is that of
the reasonable man1.

To put it differently, the question is: Whether the respondent at was the time of solemnization of marriage (or of
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entering of the marriage contract) capable of understanding the nature of the contract in which he or she was
entering or whether his or her mental condition was such that he or she was incapable of understating it. In order to
ascertain the nature of contract of marriage a man must be mentally capable of appreciating that it involves
responsibilities normally attaching to marriage; without that degree of mental condition, it cannot be said that he or
she understands the nature of contract2. Thus under the sub-clause it is not every kind of insanity which is covered.
But the incapacity of the mind should be such which incapacitates a person from giving a valid consent to the
marriage, i.e., ability to understand what marriage is and what are the responsibilities and obligations arising out of
it. It need not be persistent or continuous unsoundness of mind. It may exist just before the marriage.

Mental disorder: Section 5(ii)(b) of the Hindu Marriage Act, 1955 and section 4(b)(ii) of the Special Marriage
Act, 1954.—The provisions lay down that the respondent is suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and procreation of children. Thus it is not every kind of mental disorder but of
the quality stated in the clause. “Mental disorder” has not been defined under these clauses in either of the statutes.
But the term has been used in section 27 of the Special Marriage Act, 1954 and section 13 of the Hindu Marriage
Act, 1955 where it has been defined. It is stated, “the expression mental disorder” means, mental illness, arrested
or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes
schizophrenia3. Then the term “psychopathic disorder” is defined to mean a persistent disorder or disability of mind
(whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical
treatment.4 But here the “mental disorder” has to be such that “the petitioner cannot reasonably be expected to live
with the respondent”. In England, in the Matrimonial Causes Act, 1937 (under which it was first enacted) and in the
Matrimonial Causes Act, 19505(where it was re-enacted) the clause was, “either party to the marriage was at the
time of marriage of unsound mind or a mental defective within the meaning of the Mental Deficiency Acts, 1913-
1938…” It was after the Mental Health Act, 1959 that the provision in the Matrimonial Causes Act, 1965 was in this
form from where it has been borrowed. It is in identical language. It should be evident that the quality of mental
disorder is now different; it is not unsoundness of mind or mental defectiveness. It is something quite different. The
definition of “mental disorder” in the Mental Health Act is very wide. It is the same which has been incorporated in
the divorce provision under both the statutes. It thus includes all those things including psychotic illness as well as
neurotic illness. But then the wide import under the clauses is cut down by the words “of such kind or to such an
extent as to be unfitted for marriage and the procreation of children.”

The key to the understanding of the provision is the word “unfitted.” What does this word mean. The word is
capable of being given a very wide interpretation on the one hand, and a very narrow interpretation on the other. It
appears that Parliament could not possibly have intended to use the word “unfitted” in an extended sense. This
should be a test akin to the test of unsoundness of mind, though not quite the same. It should be something like
this: Whether this person is capable of living in a married state, and carrying out the ordinary duties and obligations
and responsibilities of marriage.

But then what is meant by the phrase “unfitted for the procreation of children”. It certainly does not mean infertility or
sterility. Nor does it mean incapacity to consummate the marriage on account to mental condition or psychopathic
disorder. At best it can mean unfitness to bring up the children. But these are not the words used. It is not what is
said. It is submitted that best possible construction can be: on account of mental disorder respondent is not capable
of carrying on normal married life. Thus the expression “mental disorder” brooks of narrow construction. It would
include those few unfortunate people who suffer from a really serious mental disorder who can positively be stated
in humane terms to be incapable of marriage. On the other hand, there are a great many people who are
successfully and happily married who would be described by many of their neighbours as unfitted to marry1. In
divorce proceedings one sees a great many people who, it could be said loosely, are unfitted to be married.

On account of the difficulty of giving a precise meaning to the phrase “unfitted for procreation of children” the Nullity
of Marriage Act, 1971 omitted the phrase. But it continues to remain in Indian statutes.

Recurrent attacks of insanity and2[epilepsy]: Clause (b)(iii) of section 4 of the Special Marriage Act, 1954
and clause (ii)(c) of section 5 of the Hindu Marriage Act, 1955.—Speaking on this clause [it occurs in identical
language in section 9(1)(b)(ii), Matrimonial Causes Act, 1965] Ormord, J., said, “I might, with all respect, observe
that this is about the most awkwardly drafted provision that is possible to imagine”. The learned judge added:

First of all, insanity again is a lawyer’s word and not a doctor’s: it is not a diagnosis, what “attack of insanity” are, I do not
know. In the earlier version it was fits of insanity; now it is “attack of insanity.” We can, of course, understand recurrent
attack of epilepsy but recurrent attacks of insanity are much more difficult. What does insanity mean? Again it can mean the
same as unsoundness of mind. No distinction can be drawn between two phrases1.
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The learned judge concluded that he would interpret insanity in this context as unsoundness of mind exactly the
same way as in section 9(1)(b)(i) of the Matrimonial Causes Act, 1965. In our contemporary society, treatment of
mental illness has changed and so has changed our attitude to mental illness, in consequence of which the
terminology has become largely obsolete. That seems to be the reason that the Nullity of Marriage Act, 1971 has
deleted this clause.

In India this most awkwardly drafted provision has been retained.

However, in r. Sankaranarayanan v. Anandhavalli2 it was held that no time is stipulated for a petition under section
12(1)(a). Rejection of application on the ground that it was filed within one year of marriage is not proper.

The terms “insanity” and “epilepsy” have not been qualified with the expression “incurable”. If attacks of either are
recurrent that is enough. In Balakrishna v. Lalitha3, the Andhra Pradesh High Court observed:

Section 12 postulates the recurrence of epilepsy only and the addition of curable is tantamount to curing the provision with
an extraneous component not visualized by the Act. The intention and purport of section 12 is that recurrence of insanity or
epilepsy is sufficient to dislodge the marital tie and prefix curable is not warranted by the Act.

It is submitted that if our reformists cannot behave better than aping English law, then we should, at least, reform
our law at par with English law.
Muslim Law

Under Muslim law, a person of unsound mind is equated with a minor, and just as minor’s marriage can be
performed with the consent of the guardian for marriage, similarly marriage of a Muslim of unsound mind can be
performed by the guardian. The insanity, may be of any quality. It may be total. It may idiocy or lunacy. The terms
insanity, “idiocy” and “lunacy” have the same meaning as has been discussed earlier under these heads.

It would appear that the “law of option of puberty” does not apply in the case of the marriage of a person of unsound
mind. As to whether the marriage can be avoided on the ground of insanity of one of the spouses, there is
difference of opinion among the schools of Muslim law. The Hanafi law does not permit a man to get his marriage
annulled on the ground of wife’s insanity4, but whether the wife can do so on the ground of husband’s insanity, Abu
Hanifa and Abu Yusuf hold that she too has no such right, but Muhammad take the view that she has right to get
her marriage annulled5. The Shafii law permits either party to take separation on the basis of other’s insanity.
Among the Shias, the wife has the right to get her marriage annulled on the ground of husband’s insanity whatever
the degree of insanity whether pre-marriage or post marriage1. On the other hand, the husband can claim
cancellation of marriage only if insanity is total2.

Under the Dissolution of Muslim Marriage Act, 1939, wife can sue for divorce on the ground of husband’s insanity.

The petitioner in a case, claimed that she was only 7 years of age at time of marriage and that marriage was never
consummated. Birth certificate and passport of her mother proved that the petitioner was 7 years and 23 days of
age at the time of her marriage contracted by her parents. It was further corroborated by ration card. Admittedly,
petitioner and respondent had never lived together as husband and wife. There had never been any cohabitation
between them. Petitioner had lawfully exercised option of puberty and repudiated marriage before attaining age of
18 years. She was therefore, held entitled to grant of divorce.3
Christian and Parsi Law

Under the *Divorce Act, 1869 a decree of nullity can be obtained if at the time of the marriage the respondent was
idiot or lunatic. The meaning of terms “idiocy” and “lunacy” is the same as has been discussed earlier.

Under the Parsi Marriage and Divorce Act, 1936, unsoundness of mind or insanity is not a ground of void or
voidable marriage. If at the time of marriage one of the parties to the marriage was of unsound mind and continued
to be so upto the date of presentation of the plaint, the plaintiff can obtain a decree of dissolution of marriage
provided he or she was ignorant of the fact of insanity at the time of marriage and he or she had filed the suit within
three years from the date of marriage.4 But if a Parsi knowingly marries an insane person, marriage cannot be
avoided. Post-marriage insanity of a spouse is not a ground for divorce.
Quantum of Proof

It appears that since under the *Divorce Act, 1869 lunacy is a ground of nullity, it must be proved strictly. A wife who
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was alleged to be lunatic passed S.S.L.C. Examination, underwent teacher’s training and was working satisfactorily
cannot be called lunatic.5
Part IV FORMAL VALIDITY OF MARRIAGE: CEREMONIES OF MARRIAGE

All over the world, in all systems of law, for the formal validity of marriage, performance of appropriate ceremonies
is a mandatory requirement. In some systems, just as Hindu law, very elaborate ceremonies are laid down: while in
some, minimal ceremonies of marriage are required. In some systems of law, just as under English law and the
Indian Christian Marriage Act, 1872 the formalities are in two parts: (a) preliminary formalities, and (b) ceremonies
for the solemnization of the marriage1. All communities in India lay down different rites and ceremonies for the
solemnization of the marriage2. Among some communities, there are very elaborate rites and ceremonies; other lay
down simple ceremonies. Among some customary ceremonies are laid down. Among some mere consent to live
together followed by actually living together as husband and wife is enough.3

Hindu Law

In regard to ceremonial validity of a Hindu marriage, religious, sacramental or non-secular character of Hindu
marriage is retained. One of the matters in respect of which custom is retained is also the ceremonial validity of
Hindu marriages. This means that a Hindu marriage (and no marriage is valid unless it is solemnized with proper
ceremonies and rites)4 must either be performed with the Shastric ceremonies and rites or in accordance with the
customary rites and ceremonies5. There has to be either shastric ceremonies or customary ceremonies, therefore, if
the marriage was solemnized under customary ceremonies, it is not essential that saptpadi had to be performed6.
No new rites and ceremonies of marriage can come into existence7. A Hindu marriage cannot be performed by any
other method, though Hindus are free to perform a civil marriage,8 with all its consequences.9 Thus, for formal
validity of marriage, two alternative ceremonies are available to the Hindus:
(i) shastric ceremonies and rites: these rites and ceremonies must be those that are laid down in the shastric
Hindu law, and
(ii) customary ceremonies and rites: these rites and ceremonies may be religious, secular, elaborate, brief or
nominal.

Shastric ceremonies and rites.—The ceremonies and rites for Hindu marriages are laid down in the Grihya-
sutras. The Grihya-sutras prescribe very elaborate rites and ceremonies for marriage. Although the performance of
some of the ceremonies and rites begins a few days before the actual solemnization of marriage both at the place
of the bride and the bridegroom, all the essential ceremonies are performed at the place of the bride.

The ceremonial day of the solemnization of the marriage begins with the vriddhi sraddha. The father of the bride (or,
in his absence the next nearest male relation of the bride), on the forenoon of the day of the solemnization of the
marriage, performs the vriddhi sraddha in which offerings are made to the departed ancestors with a view to
obtaining their blessings for the marriage. On the same forenoon is performed, with the chanting of the mantras, the
ceremony of giving bath to the bride.

Anciently, there was the practice of setting apart a cow for the wedding feast1. But later on when beef-eating was
prohibited, a practice grew of tying a cow and then letting it loose on the arrival of the bridegroom. At several places
this practice is still followed, though is not of any significance in modern Hindu society.

On the arrival of the bridegroom at the bride’s place begins the performance of several important ceremonies. The
first of these is the ceremony of sampradana. In this ceremony padya (or water), for washing the feet, araghya
(water mixed with flowers, durva- grass, rice and sandal paste) for washing the head, a cushion to sit upon, and
madhuparka (mixture of honey, curd and ghee) are given to the bridegroom along with others present there. This
ceremony is performed amidst the chanting of mantras and recitation of prayers. This ceremony is followed by the
kanyadana ceremony, in which the father of the bride formally gives the bride to the bridegroom (the right hand of
the bride is tied with that of the bridegroom with durva grass), amidst chanting of mantras. Then the bride is formally
accepted by the bridegroom with the recitation of the following Hymn to Love (Kama Sutra).

Who gave her?

To whom did he give her?

Love (Kama) gave her (to me),

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To love he gave her,

Love is the giver,

Love is the taker,

Enter thou, (Oh! my bride) the ocean of love,

With love I accept her,

May she remain thine,

Thine own, O! God of love (Kama),

Verily, thou art (Oh! my bride),

Prosperity itself,

May the Heaven bestow thee,

May the Earth receive thee.

The father of the bride then gives a piece of gold to the bridegroom by way of present. This is followed by the tying
of the skirts of the mantles of the pair, signifying their union. The father of the bride invokes the bridegroom not to
fail the bride in his pursuit of dharma, artha, kama and moksha.

Then the holy fire is lit, and the vivaha-homa is performed. On the west of the agni kunda is placed a mill-stone and
on the north-east is placed a water-pot. The bridegroom and the bride offer oblations to the holy-fire (the bride
participates in the offering of oblations by grasping the hand of the bridegroom). These oblations are made to Earth,
Sky, and Heaven (the mahavayahritu-homa). The bridegroom also recites several mantras and invocations.
Addressing to the bride he says:

May thou never admit sorrow to thy breast,

May thou prosper in thy husband’s home, blessed
With his survival and viewing cheerful children.

The next important ceremony is the ceremony of panigrahana in which the bridegroom standing-up and facing west
takes the hand of the bride, while the latter sits in front of him facing east. While so holding the hand of the bride,
the bridegroom recites the following Vedic hymn:

I take thy hand in mine,

Yearning for happiness,
I ask thee to live with me,
As thy husband,
Till both of us, with age grow old,
Know this, as I desire that the Gods,
Bhragu, Aryama, Savita and Purandhi,
Have bestowed thy person upon me,
That I may fulfil my Dharma,
Of the householder with thee.

On the completion of this invocation, the bride performs the laja-homa in which she offers oblations to Aryama,
Varuna, Pushan, and Agni so that the Gods may be pleased to free her from their bonds1.

The ceremony of panigrahana is followed by the ceremony of agniparnayana2. According to the Griha-sutras,
parinayana are three, though in practice they are usually seven or five (in all sacramental marriages they are even
now invariably performed). The agniparnayana is the rite of going round the nuptial fire and water-pot: all the time
the couple keeps to the right-hand side of the nuptial fire and the water-pot. The bridegroom recites the following
hymn:—
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This I am, that art thou,

That indeed, art thou, this, yea, This I am.
I, the heaven, thou, the earth,
I am saman1 thou are rik2
Let us marry, let us marry here,
Let us join together and beget our little ones,
Loving each other, desirous of moral splendour,
With genial minds and hearts,
Thus, yea, thus may we live,
Through a hundred autumns.

At the end of each round around the holy fire the bride with the helping hand of the bridegroom mounts the mill-
stone. The bridegroom recites the following hymn:—

Mount upon this stone,

Like a stone be firm,
Overcome thy enemies,
Tread over thy foes down,
Even as thou tread over this stone.

Chanting the hymn, “I release thee now from the bondage of Varuna,” the bridegroom loosen two locks of the
bride’s hair.

The last ceremony of the rites and ceremonies of a Hindu marriage is saptpadi which is the most important
ceremony and must be performed in all sacramental marriages. This is the ceremony in which the bridegroom leads
the bride for seven steps in the north-eastern direction, while chanting the following hymn:—

Let us pray together,

For life’s sap, as we tread one step along,
For life’s juice, as we go two steps together,
For wealth more abundant, as we go three steps together,
For happiness in life, as we walk four steps together,
For off-spring, as we move along five steps together,
For a long wedded-life, as we go six steps together,
Be thou my life-mate as we walk up seven steps together,
Thus, thou go together with me for ever and for ever,
Let us acquire many sons who may reach old age.

On the completion of the seventh step the bridegroom addresses the bride thus:

May none interrupt thy association with me,

May such as are disposed to promote our happiness,
Confirm thy association with me.

With the recitation of the following prayer, water is poured in the hands of the couple:—

May water and all gods cleanse our hearts;

May air do so, may Creator do so;

May the divine instructress unite our hearts.

Joining his hand with his wife, the husband recites certain prayers and then addresses her thus:

Give thy heart to my religious duties,

May thy mind follow mine,
Be thou consenter to my speech,
May Brihaspati unite thee unto me.
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The saptpadi is the most material of all the nuptial rites, and marriage becomes complete and irrevocable on the
completion of the seventh step. According to Manu: “The nuptial texts are a certain rule in regard to wedlock; and
the bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair,
hand, in hand, after those texts have been pronounced1”. Other sages2 are to the same effect; so are the
commentators3 and judicial pronouncements.4

The last ceremony that is performed at the bride’s place is known as uttaravivaha. After the completion of this
ceremony the bride is conducted in solemn procession to her husband’s home where several texts are recited5.

In most of the Hindu marriages performed in average Hindu homes, these ceremonies—or at least most of them—
are performed at the time of the solemnization of marriage, though only in a few marriages the sacred hymns and
verses are recited by the bride and the bridegroom. The function of recitation of hymns and sacred texts is
performed by the priest officiating at the marriage. It seems to be clear that the chanting of the hymns, mantras,
verses and sacred texts is not essential in modern Hindu law for the validity of a Hindu marriage.

The question is: of the above ceremonies which are absolutely essential for the valid solemnization of a Hindu
marriage under the modern Hindu law?

The answer to the above question is not simple. The judicial pronouncements do not clearly lay down which of the
ceremonies are essential for the valid performance of a Hindu marriage. However, there need not be any doubt
about one ceremony viz., the saptpadi which is absolutely indispensable for the performance of a Hindu marriage
by the Shastric rites. Sub-section (2) of section 7 of the Hindu Marriage Act, 1955 lays down: “where such rites and
ceremonies include the saptpadi, the marriage becomes complete and binding when the seventh step is taken” 1 .
The Madras High Court, after examining all the relevant texts, came to the conclusion that in reality for the
ceremonial validity of a Hindu marriage only two ceremonies are essential, one consists of the secular element, i.e.,
the gift of the girl (this will include sampradana and kanyadana); and the second consists of religious element, i.e.,
the performance of panigrahana and saptpadi2. The Bombay High Court said that for the validity of a Hindu
marriage the two essential ceremonies are, lajahoma and the saptpadi3. In rampiayar v. Deva rama,4 the court said
that though vivaha homa is a usual ceremony of a Hindu marriage, but its non-performance does not render the
marriage void, if the saptpadi has been performed. It also seems to be settled that in the Gandharva form of
marriage which is available to all Hindus and which is a marriage with the mutual consent of the bride and
bridegroom, the ceremony of kanyadana is not necessary. Even otherwise kanyadana is not an essential ceremony
for a valid marriage5. Although all the shastric rites that are performed among the twice born Hindus are also
performed by sudras, the performance of the vivaha homa is not essential among them6. It also seems to be
established that the presence of a priest to officiate at the nuptial rites is not necessary.

In view of this state of judicial authority, the text-book writers also do not add to clarity. Mayne said, “The
performance of the homan, the panigrahana or taking hold of bride’s hand and going round the fire with Vedic
mantras, the treading on the stone, and the seven steps or saptpadi these are the more important rites mentioned
by it. The marriage becomes complete and irrevocable on the completion of the saptpadi or ceremony of seven
steps and from that moment, the wife passes into her husband’s gotra. Till then the marriage is imperfect and
revocable7“. Mulla holds the view that (i) invocation before the sacred fire, and (ii) the saptpadi are the only two
essential ceremonies of marriage.8 But he quotes no authority.9

This means that the question as to which are the essential ceremonies of a Hindu marriage under the modern
Hindu law still remains unanswered. The key may lie in taking at the character and nature of Hindu marriage in
modern Hindu law. Although most Hindus still prefer to call their marriage a sacrament, the fact of the matter is that
very little of sacramental aspect of Hindu marriage has been left1. It is neither an eternal union (a union for all lives
to come, as ancient Hindus held), since a widow,2 widower and divorcee are free to remarry, nor is it an inviolable
marriage, since divorce is recognized3. The Hindu Marriage Act, 1955 calls a Hindu marriage simply as “Hindu
marriage”4. What is left of the sacramental aspect of a Hindu marriage is that some shastric ceremonies are still
required for its solemnization. It is submitted that the only ceremony that is obligatory for solemnization of Hindu
marriage is the saptpadi. If saptpadi is performed, the ceremonial validity of marriage cannot be challenged.

Customary ceremonies and rites.—It is interesting to note that the Grihya Sutras, while prescribing all the
elaborate ceremonies and rites, also lay down that a marriage may be solemnized in accordance with “the customs
of the different countries and villages”.5It has been the settled law even before coming into force of the Hindu
Marriage Act, 1955 that if a community does not recognize any of the shastric ceremonies and rites of the marriage,
their omission will not render a marriage invalid provided the ceremonies and rites prescribed by the community are
performed.6 Numerous customary ceremonies and rites have been recognized by the courts7. The only change that
the Hindu Marriage Act makes in this regard is that if a marriage is solemnized by the customary rites and
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ceremonies recognized on the side of one of the parties to the marriage (it may not be recognised on the other
side), then the marriage will be valid.8 For the performance of customary ceremonies and rites it is essential to
establish that the caste or community has been continuously following such rites and ceremonies from ancient
times and the caste or community regards performance of such ceremonies as obligatory,9 provided such
customary ceremony and rites are not against morality, law and public policy.

Valid Marriage
Marriage can be solemnised in accordance with customary rights and ceremonies of either and it is not necessary
that it should always be as per customs and ceremony of bridegroom.1

Creation of new ceremonies.—No one, even a community, organization or movement, is free to alter, vary or
create a ceremony at one’s pleasure. When the Arya Samaj movements simplified the ceremonies and rites for the
solemnization of marriage among the Arya Samajists, an Act had to be passed to set at rest all doubt relating to
validity of such marriages2 Even for the validity of marriages among the Sikhs by anand karaj, a statute had to be
passed3. The question of innovation of new ceremonies and rites came before the Madras High Court in an
interesting manner4. In Tamil Nadu there exists an organization, now for at least half a century, known as Anti-
Purohit Association or self-Respectors’ Cult. This is an inter-caste organization, the main objective of which is to do
away with the traditional rites and ceremonies prevalent among the Hindus. It has also innovated some very simple
rites and ceremonies of marriages. Such marriages are known by the name of Surya-mariyathai or seerthiththa
marriages. When such a marriage is to be performed then the relatives and friends of the bride and bridegroom and
the notable persons of the locality are invited, and among the invitees some one is requested to preside over the
function. The bride and the bridegroom are introduced to the guests, and in their presume the simple ceremony of
exchanging garlands and rings between the bride and the bridegroom is performed. Two other alternative
ceremonies may also be performed: (a) a simple ceremony of tying the thali, or (b) the bride and bridegroom may
declare in any language understood by them that each takes the other to be his wife or as the case may be, her
husband. When the validity of one such marriage was questioned before the Madras High Court, Satyanarayana
Rao, J., said that it may be very laudable object to simplify the procedure applicable to marriages as laid down in
the shastras and custom, but it will be a dangerous doctrine to lay down that a community should have liberty to
prescribe the requisites of a valid marriage without any statutory authority. No one can alter personal law. The
marriage was held void. This decision led to statutory recognition of such ceremonies and rites.5 The result of this
statutory modification is that a mere execution of a document by the spouses that they have become husband and
wife or a declaration in the presence of friends and other persons,6 will confer the status of husband and wife on the
parties.

Mock ceremonies of marriage.—Just as no one is free to innovate ceremonies, similarly no one is free to perform
any ceremonies of marriage, even though the intention to be man and wife may be there. This question has come
before courts in bigamy cases1. Prosecution for bigamy cannot stand unless the solemnization of the second
marriage by the requisite ceremonies and rites is established. The question came before the Allahabad High Court
in a very interesting manner2. One Dr. N.A. Mukerji performed three different ceremonies of marriage at three
different times, with one Smt. Harbans Kaur (who was a married woman and whose husband was living). The first
ceremony was performed in a moonlit night in the open where Dr. Mukerji after reciting a few Sanskrit verses
embraced Smt. Harbans Kaur and exclaimed, “Moon you are my witness. I am marrying Harbans and she is my
wife and I am her husband”. The second ceremony was performed eight years later in a Kali temple where the
parties exchanged garlands in front of the deity and walked seven steps together. The third ceremony was
performed a day later before Guru Granth Sahib: an imitation of anand karaj. The court held that the performance of
such mock ceremonies of marriage does not constitute a valid solemnization of marriage.

Valid ceremonies must have been performed for rendering a marriage valid. If there was absence of valid
ceremonies in the earlier marriage, subsequent marriage would be a valid marriage, the earlier being invalid due to
lack of ceremonies.3

Not merely the ceremony and rite should not be a mockery, but it is also necessary that the requisite ceremony
prevalent and recognized either on the side of the bride or on the side of the bridegroom should be performed.
Thus, if a Buddhist and a Jain solemnize their marriage by anand karaj (which is a valid Sikh ceremony), then
marriage will not be valid, since the anand karaj is neither recognized on the side of the bride nor on the side of
bridegroom. But if a Sikh and a Jain solemnize their marriage by anand karaj, the marriage will be valid.

Intention to live as husband and wife.—Thus, neither the innovation of ceremonies is allowed nor can a marriage
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be performed by any sort of ceremonies. In either case, the marriage will be invalid. Derrett says that intention
should be the criterion: “Did they intend to become man and wife ? If they did so, the choice of ceremony is
irrelevant…….. If, on the other hand, she aimed to be no more than a permanent concubine, the ceremonies, no
matter how elaborate, should not have the effect of turning her into a patni against her intention”.4 It is submitted
that this is not so under Hindu law or any other system of law. Under Hindu law it is the solemnization of requisite
ceremonies and rites that confers the status of husband and wife, and if requisite ceremonies are not performed,
the marriage is null and void, unless custom permits such a marriage1.

Karewa form of marriage is recognized in Punjab & Haryana2

Presumption of Marriage.—In this jumble of ceremonies of marriage, where the burden of proof is on the party
who alleges the performance of due ceremonies, the only redeeming feature seems to be the rule of presumption of
marriage. Section 144 of the Evidence Act, 1857 lays down that where independent evidence of solemnization of
marriage is not available, it will be proved to be a valid marriage by continuous cohabitation between the parties
unless contrary is proved. It has been held at an early date that the policy of law is to lean in favour of validity of
marriage.3facto the law will presume that it has taken place.4 But merely living together does not confer a status of
wife and husband.5 If the community in which spouses live or the people among whom they are living, treat them as
husband and wife, they would be presumed to be married. In such a case burden of proof would be on the person
who challenges such a marriage6. It has also been held that continuous and prolonged cohabitation gives rise to a
presumption in favour of marriage, and against concubinage7. Where parties are constantly, continuously and
openly living as husband and wife and had children, friends and relatives recognized them as husband and wife, it
raises a presumption of valid marriage. Where parties were living together as husband and wife for last 33 years. All
neighbours recognized her as his wife. Voters record also showed her name as his wife, presumption of valid
marriage is there8 However it has to be shown that requisite conditions of valid marriage are satisfied1. This is a
rebuttable presumption2. This presumption does not apply in a petition for restitution of conjugal rights or in a
prosecution of bigamy3. In these matters, it is necessary to establish that ceremonies of marriage took place. Once
that is proved, it is not necessary to show that each and every ceremony was performed4. Where it is alleged that
all ceremonies were performed, but there is no proof of the performance of any ceremony and rite, such as of
kanyadana or saptapadi, and where no guardian for marriage (the girl being below eighteen) of the bride was
present at the time of marriage, it cannot be presumed that essential ceremonies were performed5.

In respectful agreement with S.V. Gupte that “it is unfortunate that in each case (even after the codification) it would
have to be ascertained whether the marriage was performed according to the customary rites and ceremonies of
any particular spouse”6, it is submitted that it would be better if a simple ceremony of marriage is devised which is
available uniformly to all Hindus.

In sum, the following propositions may be taken to be well-established:

(a) For the formal validity of a marriage, performance of requisite ceremonies and rites is essential.7
(b) If shastric or customary rites and ceremonies prevalent and recognized on the side of the bride or
bridegroom are performed, marriage will be formally valid. These ceremonies may be very elaborate or
very simple. If mere agreement to live together as husband and wife is the only formality required on the
side of one of the parties to marriage, that will be enough for the validity of the marriage.8
(c) If the shastric or customary rites and ceremonies prevalent and recognised, on the side of either party are
not performed, the marriage will be null and void, though parties might have performed many other
ceremonies and rites. Thus, a marriage between a Jain and a Buddhist by performing anand karaj (a Sikh
ceremony) is invalid.9
(d) Intention to live as husband and wife is not enough. In Hindu law as in most other systems of law, it is the
solemnization of marriage by performance of certain ceremonies and rites prescribed or recognized by law
that confer the status of husband and wife, provided parties have capacity to marry, and not the mere
intention or agreement of parties to live together as man and wife1. Not merely in the realm of marriage, but
also in most of the human transactions formalities play an important part, and it is only by performing the
requisite formalities, that a valid transaction comes into existence. It is submitted that intention alone can
neither confer nor take away the status of marriage2. If parties have undergone necessary ceremonies of
marriage, they cannot be heard to say that they merely intended to be man and concubine. If requisite
ceremonies are not performed, they cannot claim to be husband and wife whatever might have been their
intention, unless the presumption of long cohabitation applies to them, or a custom is invoked under which
performance of ceremonies is not necessary.3
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Word “solemnized” used in section 7 means to celebrate marriage with proper ceremonies with an intention that
parties should be considered to be married4.

Registration of marriages.—Registration of marriage is a mode of proof of the solemnization of marriage—a

transaction which is registered is deemed to have taken place. Traditionally, the Hindus have no law of registration.
Till 1955 registration of marriage was neither compulsory nor any provision for registration of marriage existed. It is
because Hindu marriages and most marriages in India have been always performed in public with wide publicity.
Even the Hindu Marriage Act, 1955 does not make registration of marriage compulsory, though it stipulates that
facility for registration of marriages may be provided. Section 8(2) of the Act provides that any State Government
may make rules for compulsory registration of Hindu marriages. The sub-section runs:

Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or
expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State
or in any part thereof, whether in all cases or in such cases as may be specified, and where any such directions has been
issued, any person contravening any rule made in this behalf shall be punished with fine which may extend to twenty-five
rupees.

Section 8(5) of the Act specifically lays down that failure to register a Hindu marriage shall, in no way, affect its
validity. Even where compulsory registration of marriage is laid down under rules, the non-registration does not
affect the validity of marriage. It merely entails a fine which may extend to twenty-five rupees.

Under the Act marriage between two Hindus can only be registered. Marriage between a Hindu and a Christian
cannot be registered.

For registration of marriage presence of both the parties before the Registrar is not necessary. If the Registrar
doubts the identity of one of the parties only then it is needed1.

Most of the States have framed rules for the registration of marriage.

In the absence of proof of performance of requisite ceremonies of marriage, mere registration of marriage does not
constitute conclusive proof of marriage2.

Marriage of a Hindu with another professing a different faith, although solemnized in accordance with Hindu
customs, is held to be void, and registration of such marriage under section 8 would not validate the same. The
Apex Court further held that the word “may” in section 5 is mandatory and not directory and does not make the
provision optional3.

Taking into account these anomalies in law the Supreme Court has held in Seema v. Ashwani Kumar,4 that the
registration of marriage falls within the ambit of expression “vital statistics” as provided in Entry 30, List 3, Sch. 7 of
Constitution of India. Therefore, marriage of all citizens of India belonging to various religions should be made
compulsorily registrable in the States where they are solemnized. (See page 25)

suggestions for reform.—This state of law is far from being satisfactory. Many cases of prosecution for bigamy fail
because of the lack of proof of solemnization of the second marriage with requisite rites and ceremonies. It is
submitted that in respect of ceremonial validity of Hindu marriages, the Hindu Marriage Act, 1955 may be amended
incorporating the following suggestions:—
(I) A simple ceremony of marriage should be laid down which should uniformly apply to all Hindu marriages.
This may be something like this: in the presence of relatives and/or friends and/or acquaintances (whose
total number should not be less than five), the bride and the bridegroom should exchange garlands, and
with the skirts of their mantles tied together they should seek blessing from the elders present there (if any)
and greet friends and acquaintances.

It is submitted that the tying of the skirts of the mantles of the bride and the bridegroom is a part of the
ceremony and not the seeking of the blessing of elders and greeting of others.
(II) A civil ceremony of marriage5, on the lines of the Special Marriage Act, 1954 should also be made
available to all Hindus under the Hindu Marriage Act, 1955 (contrary to popular belief, formalities of a civil
marriage or court marriages, as they are commonly called, are not simple or easy; ten sections of
thespecial Marriage Act, 1954 deal with them1) and facilities for its solemnization should be made available
in the village also. All the panchas of a gram panchayat, all the revenue officers upto the level of patwari
and all officers of the rank of Magistrate (of all grades, and both executive and judicial) should be
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empowered to officiate (they may be designated, as marriage officers) at civil marriages2. Not more than
three days’ notice of marriage should be necessary if parties belong to the same locality, and not more
than ten days notice should be necessary if parties do not belong to the same locality where the marriage
is to be solemnized.3 All objections to the solemnization of the marriage should be disposed of within
twenty-four hours.4 No appeal should lie if the objection is rejected. But if the objection is sustained the
parties should have a right to appeal to the lowest civil court within thirty days of the order. The marriage
may be solemnized at any place wherever the bride and the bridegroom want it to be solemnized on
payment of a fee of Rs. 11 to the marriage officer. The parties should also provide free transport (whatever
mode may be available locally) to the marriage officer. The usual civil form of solemnization of marriage
may be laid down, viz., in the presence of marriage officer and three witnesses, the parties should say to
each other in the language understood by them. “I (a) take thee (B) to be my lawful wife (or husband).”
(III) The performance of either of the two ceremonies suggested above should be necessary for the ceremonial
validity of all Hindu marriages. This suggestion, however, does not prevent parties from performing any
other additional ceremonies and rites, shastric or customary, very elaborate or very brief.
(IV) Registration of Hindu marriages performed in either of the above forms should be made compulsory. All
revenue officers upto the level of patwari, all local self-government bodies, such as corporations, municipal
boards, town area committees, village panchayats and all Magistrates (of any rank, executive as well as
judicial) should be authorized to keep a marriage registration book and should be empowered to enter a
certificate of marriage therein. Such certificate should be signed by the parties to the marriage and two
witnesses who were present at the time of the solemnization of marriage.

All marriages solemnized in a State should be published in Official Gazette of the State Government.
Muslim Law

The requirements of the formal validity of marriage under Muslim law are the following:—
(a) There must be an offer to marry from one side (bride or bridegroom it may be moved by either) and
acceptance of the same on the other side, in one and the same meeting.
(b) The parties to the marriage should consent to it; if one of the parties or both are minors or of unsound
mind, consent of the guardian for marriage is mandatory.
(c) Under the Sunni Law the marriage must be witnessed by two competent witnesses. The Shia law does not
require the presence of witnesses.

Offer and acceptance.—It is a mandatory requirement of Muslim law that there should be a proposal (ijab) of
marriage made by, or on behalf of, one of the parties, and accepted (qubul) by or on behalf of the other, at one and
the same meeting. If the proposal is made at one meeting and is accepted at another it does not result in a valid
marriage1. Among the Sunnis the proposal and acceptance should be made in the presence and hearing of two
adult male witnesses (or one male and two female witnesses). The Shias do not insist on the presence of
witnesses. Although there is a Koranic verse, “Plight not your truth with women except by uttering a recognized
form of words”. Indian Muslim law does not prescribe any specific words to be uttered on the occasion though the
words used in the proposal, and the acceptance, must clearly and unequivocally conveyed the intention to be
married. The Radd-ul-Muktar says that marriage does not depend on the use of any express terms so long as the
purpose is distinctly understood2. The usual (though not prescribed) form is: “I have married myself to you”, and the
other says, “I have consented myself to you”3. When the proposal is made by the bridegroom to the father of the
bride, the usual form is; the bridegroom addresses the father of bride thus: “Marry your daughter to me,” and the
bride’s father replies, “I have consented”4. The Ithna Ashari law requires the use of the following Arabic words,
“tazwiz” or “nikah”5 unless parties are not familiar with Arabic words. But even if proper words are not used,
consummation of marriage cures the deficiency, and all incidents of a valid marriage flow from it. If parties are
unable to utter the Arabic words, the equivalent words in the language they understand may be spoken. The Hanafi
law requires that the contract of marriage must be expressed in words implying sale (boy) or gift (hiba), or transfer
of ownership (tamlik), or any other expression implying permanent union. Use of words implying hire or pledge is
not proper1. Use of ambiguous words may not result in a valid marriage. Thus, it cannot be contracted by use of
such words as ijara (hiring) ariat (lending) or ibahut (permitting).

Ordinarily, in India, marriages among all sects are solemnized by a person conversant with the requirements of law,
who is designated for the occasion. Two other persons called agents or Vakils, formally appointed for the purpose,
act on behalf of the contracting parties, with certain number of witnesses, and the terms are usually embodied in a
deed of marriage called kabinnamah2. In the deed of marriage all the conditions of marriage such as the amount of
dower, mode of its payment, questions relating to custody of children, or any other conditions which the contracting
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parties desire to lay down, are incorporated. In India, ordinarily and usually, Muslim marriages are celebrated at the
bride’s father or guardian’s residence, in the presence of agents (vakils) and guests some of whom act as
witnesses. It is also usual that a mulla is present on the occasion who recites certain Koranic verses and confers
benediction on the parties.

It is imperative that acceptance of the proposal must be unconditional and unambiguous. It must conform to the
proposal. Thus when a Muslim bridegroom says to the bride, “I have married you for five hundred dirhams (amount
of dower)” and the bride says, “I have accepted your offer except the amount of dower”, no valid marriage would
result. But if she says “I have accepted the marriage”, and keeps silence about dower, a valid marriage would
result. Similarly, a mere acknowledgement of marriage is not sufficient. Thus a man says to a woman, “My
greetings to you”, or “salam-a-walekum” and she says, “I accept thy greetings, my husband” or says “Walekum
Salam” my husband”. No contract of marriage will result. Similarly, even when a man and a woman acknowledge in
the presence of witnesses that they are man and wife, it will not result in marriage, if earlier they have not been
married. But if witnesses ask them whether they have made a contract of marriage and they answer affirmatively, a
valid marriage would come into existence.

It is an essential requirement that a contract of marriage can be made only by words of offer and acceptance
uttered by the parties or their agents in the presence of each other and if parties are Sunnis in the presence of
witnesses. It cannot be made through acts, such as by taking possession of dower or by mutual surrender. But in
the case of dumb persons proposal and acceptance may be made by intelligible signs.

Consent of the parties.—Under Muslim Law, since marriage is a contract, it is essential that the parties, who are
above the age of puberty, should give their consent. In the case of minors or persons of unsound mind, it must be
conveyed by the guardian for marriage. Thus, where a woman was prosecuted for bigamy, prosecution failed as it
was established that she did not consent to marriage1. No valid marriage can come into existence unless both
parties have consented to the marriage.

From the contractual concept of Muslim marriage, it flows that the consent of the parties, if adult, or of their
guardians, if minors, must be expressed clearly and unequivocally by them or their agents. Among the Hanafis and
the Shias, an adult person is himself or herself competent to give the consent, and no consent of the wali is
necessary2. If a party is not competent to enter into a contract, either on account of infancy, or insanity, then the
consent of the guardian for marriage is necessary. The Shafi law, on the one side lays down that consent to
marriage must be given by the girl herself, the wali only communicates that consent; on the other, it insists that the
girl, even though adult, cannot herself convey the consent—it must be conveyed through the wali. The Malikis also
take this view. It appears that according to these schools, a female is emancipated only on her marriage. A Shafii
virgin adult girl can contract a valid marriage without the consent of her father or a wali. Among the Hanafis and the
Shias, an adult woman can herself contract a valid marriage; she may, as well, choose to marry through her wali.

Thus, the offer and acceptance of the offer in one and the same meeting are the only essential element of formality
of a Muslim marriage. It may be oral or it may be in writing. Muslim law does not insist on any type of writing or any
religious ceremony. Even mulla is not needed nor is the presence of kazi necessary3.

Witnesses to marriages contract.—The Prophet said, “There is no marriage without witnesses”. However, only
the Sunnis insist on the presence of witnesses, and then too absence of witnesses does not render the marriage
void. It is an irregular marriage. It is essential that both the witnesses should be present simultaneously at the time
when marriage contract is entered into and both the witnesses must hear the words uttered by the bride and
bridegroom.4 If both the witnesses hear the parties separately, the contract of marriage will not be valid. However,
invocation to witnesses is not essential. Among the Sunnis, the presence of witnesses is required even when the
girl or boy is given in marriage by the guardian5. It is also not sufficient for the parties to invoke God and says, “Ya
allah bear witness to our marriage”.

The witnesses must be competent. There are four requirements of competency: the witness must be major,
freeman, sane and Muslim. No particular type of witnesses are required. Any major Muslim of sound mind is a
competent witness. Among the Shafii, profligates are disqualified. But not among others. Thus one who had been
punished for slander or Zina or who is descendant of the parties to the marriage, their relatives and friends are
competent witnesses1. The persons who are disqualified for other purposes may not be disqualified for marriage.

Sex is not a disqualification either. It is not necessary that all witnesses should be males. But presence of one male
witness is necessary. If other witnesses are females, then they must be two. The marriage performed in the
presence of one male competent witness and one female competent witness is not valid. There must be one male
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competent witness and two competent female witnesses. However, under the Shafii law, women cannot be
witnesses to a marriage. Both the witnesses should be male.

Deaf witnesses are not qualified, since they are incapable of hearing the words of offer and acceptance uttered by
the bride and bridegroom. But a dumb person who can hear is a competent witness. So are blind persons. A drunk
person can be witness if he is sober enough to hear the words uttered by the bride and bridegroom.

It is also necessary that witnesses should be able to identify the bride and bridegroom. It is also necessary that
witnesses should understand what is said, though they may not be able to understand actual words uttered.
However, the better opinion is that witnesses should be able to comprehend the contract and words uttered by the
parties2.

Where both the parties to the marriage are Muslims, all the witnesses must be Muslim. But where wife is non-
Muslim, according to abu Hanifa and abu Yusaf, non-Muslim may be witnesses. Mohammad disagrees with this
view. Amir Ali says non-Muslims can be witnesses as it is a matter of evidence and not of substantial law3. It is
submitted that it is a better view.

Presumption of Marriage.—Where there has been prolonged and continual cohabitation between a man and a
woman, particularly in those cases in which the alleged marriage took place a long time ago, and about which it
may be highly impossible to obtain trustworthy testimony, there arises a presumption that a valid marriage subsists
between the two.4 But if the conduct of the parties is incompatible with marital relationship, then, no such
presumption arises.5 The continual and prolonged cohabitation, which gives rise to the presumption of a valid
marriage, should be of such a nature, and under such circumstances, that a reasonable inference is naturally
drawn, that the cohabitation was as man and wife without obstacle or impediment to a valid marriage between the
two6. It has been held in Madan Mohan Singh v. Rajni Kant,7 that law presumes in favour of marriage and against
concubinage. Where a man and a woman have cohabited for a long time very strong and unimpeachable evidence
is required to rebut the presumption against marriage. It has further been observed that a long continued live-in
relationship cannot be dubbed as a walk-in and walk-out relationship and children born out of this relationship would
be legitimate. Thus, where a woman is admittedly a prostitute, no such presumption will arise1. However, it is
established that if a valid marriage was solemnized between the parties, then it is immaterial that before the
marriage the wife was a prostitute.

In Muslim law presumption of marriage arises in the following three cases:—

(i) When prolonged continual cohabitation is established between the parties as husband and wife, who have
no legal impediment against their marriage2
(ii) When the man acknowledges the woman to be his wife.3
(iii) When a man acknowledges a child as his legitimate off-spring, then a presumption of valid marriage
between the man and the mother of the child arises4.

Valid retirement.—A valid retirement (al-khulwalus-sahiha or khilwat-us-sahih) raises a presumption of

consummation of marriage. The Radd-ul-Muktar lays down that if parties, having no physical, moral or legal bar,
retire into privacy, it raises a presumption of consummation of marriage. According to Amir Ali, “Under the Hanafi
and the Maliki law, a presumption of consummation is raised from the retirement of the husband and wife into the
nuptial chamber, under circumstances which lead to the natural inference of matrimonial intercourse…. But when
there is some legal, moral or physical impediment to such intercourses no presumption is raised and the retirement
is not valid. For example, when the parties are observing the obligatory fast of Ramadan or either husband or wife
is suffering from an illness which prevents connubial relationship or a third (‘discreet’) person is present in the room
though he may be blind, the retirement into the nuptial chamber does not give rise to the presumption of
consummation”5.

It is also necessary that the place should be such where parties can really have privacy. If the place is exposed to
public view or has public access, or if it is open, unenclosed place, then, no presumption of consummation of
marriage arises. Under the Shia and the Shafii law no presumption of consummation of marriage arises from valid
retirement. These schools insist that it is only actual consummation of marriage which gives rise to marital rights
and obligations.

According to the Hanafi and Maliki schools, the valid retirement is placed on the same footing as actual
consummation of marriage for certain purposes; while for other purposes actual consummation is necessary.
According to the Fatwa-i-Alamgiri, a valid retirement is equivalent to actual consummation for the following
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purposes: for confirmation of dower, for establishment of paternity, for the observation of iddat, for wife’s right of
maintenance and lodgement, for unlawfulness of marriage by the husband with the wife’s sister or with a fifth
woman, and for the observance of time in the repudiation of marriage. A valid retirement does not raise a
presumption of consummation for the following purposes (in such cases Muslim law insists on actual consummation
of marriage): for making a person muhsan, or a daughter unlawful, or for making a divorced woman lawful to her
first husband, or for the purpose of revoking repudiation, or for inheritance1. It also does not replace actual
consummation for the purpose of impairing virginity. Thus, if a man should retire with a virgin and then repudiates
her, she would subsequently marry as a virgin1.

Registration of marriages.—Like Hindu marriages, Muslim marriages need no registration: In some States,
statutes exist under which facilities for voluntary registration of marriage are provided. The earliest statute of this
nature is the Bengal Mohammedan Marriages and Divorces Registration Act, 1876. This enactment is now
applicable in Bihar and West Bengal. In Assam, the Assam Muslim Marriages and Divorces Registration Act was
passed in 1935, and in Orissa, the Orissa Mohammedan Marriage and Divorces Registration Act was passed in
1947. These statutes are based on the Bengal Act of 1876. No other State has provided for the registration of
marriages. It is submitted that a Union statute should be enacted for the compulsory registration of all marriages
(Muslim as well as non-Muslim), and non-judicial divorce. This job may be assigned to the local self-government
bodies, down to the level of the gram panchayats2
Christian Law

Following English law, the Indian Christian Marriage Act, 1872 stipulates (a) preliminaries to marriage, and (b)
ceremonies and formalities for the solemnization of the marriage.

Under the Act, marriage may be solemnized between persons, one or both of whom is or are Christians in
accordance with the provisions of the Act, otherwise the marriage will be void3. The Act provides for the
solemnization of marriage by the ordained priest as well as by the Registrar of marriages. In the former case, the
marriage may be solemnized4:
(1) by any person who has received episcopal ordination, provided that the marriage be solemnized according
to the rules, rites, ceremonies and customs of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the
rules, rites, ceremonies and customs of the Church of Scotland;
(3) by any Minister of Religion licensed under this Act to solemnize marriages;
(4) by, or in the presence of, a Marriage Registrar appointed under this Act;
(5) by any person licensed under this Act to grant certificates of marriage between Indian Christians.

According to the section 68 of the Act if a person, who is not duly authorized to solemnize the marriage solemnizes
or professes to solemnize a marriage he shall be punishable for a term of imprisonment which may extend to ten
years as well as fine or (in lieu of a sentence of imprisonment for seven years or upward) with transportation *for a
term of not less than seven years and not exceeding ten years.

It is necessary that a licence is granted to Ministers of Religion for the solemnization of marriage by the State
Government through a notification published in the Official Gazette. The notification will also indicate the territorial
jurisdiction of each Minister of religion1. The State Governments are also required to appoint one or more Christians
by name or designation as Marriage Registrar or Registrars in any district as may be deemed necessary. If a district
has more than one Marriage Registrar, one of them may be designated as Senior Marriage Registrar. Where a
district has only one Registrar who happens to be ill or absent, or his office is temporarily vacant, the District
Magistrate will act as Marriage Officer during such absence, illness or temporary vacancy2

Indian Christians.—Special provisions have been made for Indian Christians. The State Government is required to
grant a licence to a Christian by name or designation authorizing him to grant certificates of marriage to Indian
Christians. The peculiar feature is that for the marriages of Indian Christians, virtually no preliminaries are required.3

An authority which appoints a person as Marriage Registrar or which grant licence to a Christian for granting
certificates of marriage to Indian Christians can also revoke the same.

Time of solemnization of marriage.—Ordinarily a Christian marriage can be performed between the hours of six
in the morning and seven in the evening, but in the following cases it may be solemnized at any time4:
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(1) a Clergyman of the Church of England solemnizing a marriage under a special licence permitting him to do
so at any hour other than between six in the morning and seven in the evening, under the hand and seal of
the Anglican Bishop of the Diocese or his Commissary, or
(2) a Clergyman of the Church of Rome solemnizing a marriage between the hours of seven in the evening
and six in the morning, when he has received a general or special licence in that behalf from the Roman
Catholic Bishop of the Diocese or Vicariate in which such marriage is so solemnized, or from such person
as the same Bishop has authorized to grant such licence, or
(3) a Clergyman of the Church of Scotland solemnizing a marriage according to the rules, rites, ceremonies
and customs of the Church of Scotland.

If a marriage is performed beyond the prescribed hours, the person or persons responsible for the solemnization of
such marriage are liable to be punished, by a term of imprisonment which may extend to three years and shall also
be liable to fine1. However, no such punishment can be inflicted on the Anglican Bishop of Diocese or Commissary
or the Clergyman of the Church of Rome when marriage is performed between the hours of seven in the evening
and six in the morning under a general or special licence2. Similarly, this provision does not apply to a Clergyman of
the Church of Scotland who solemnizes a marriage according to the rules, rites, ceremonies and custom of the
Church of Scotland beyond the prescribed hours.3

Place of solemnization of marriage.—It is laid down that a Clergyman of the Church of England will solemnize a
marriage only in a Church where worship is generally held, unless there is no such Church within five miles
distance by the shortest road from such place, or unless he has received a special licence authorizing him to do so
under the hand and seal of the Anglican Bishop of the Diocese or his Commissary.4

Preliminaries to a marriage to be solemnized by Minister of religion.— When a Christian marriage is to be

solemnized by a Minister of Religion certain preliminaries to solemnization of marriage are necessary.

Notice of intended marriage.—The first preliminary is publication of notice of intended marriage, what is called in
English law publication of bannas: one of parties to the intended marriage, bride or bridegroom, should give in
writing a notice in which the names of the parties to the marriage, their status (unmarried or widow/widower or
divorcee), the age of parties, the name of dwelling place, the name of Church, Chapel or place of worship where
marriage is to be solemnized and the District in which the other party resides (where parties dwell in different
Districts) should be stated in the form prescribed in Schedule I. Section 12 of the Act lays down that the notice
should contain the following:—
(a) the name and surname, and the profession or condition, of each of the persons intending marriage;
(b) the dwelling place of each of them;
(c) the time during which each has dwelt there; and
(d) the church or private dwelling in which the marriage is to be solemnized.

If either of the two parties dwell in the district mentioned in the notice for more than one month, then this fact should
be stated in the notice1.

For signing a false notice, the person who does so, is liable to be punished with a term of imprisonment which may
extend to three years and a fine may also be imposed2

Publication of the notice.—The second preliminary is publication of the notice. If the Minister of Religion on whom
notice of intended marriage is served feels that he is entitled to solemnize the intended marriage, he would cause
the notice to be published by getting it affixed in some conspicuous part of the Church. In case the Minister feels
that he is not entitled to solemnize the marriage he would either return the notice to the person who delivered it to
him or transmit to the Minister who is entitled to solemnize the marriage, who would thereupon cause the notice to
be published as aforesaid.3

In case parties desire to solemnize the marriage in a private dwelling, the Minister who received the notice would
forward it to the Marriage Registrar of the district where the dwelling house is situated who would affix the same to
some conspicuous place in his own office.4

When one party is a minor.—When one of the parties to the marriage is a minor, the Minister who has received
the notice of marriage should send its copy by post or otherwise to the Marriage Registrar of the District,5 who shall
get it affixed in some conspicuous place of his office. He shall also cause its copies send to all Marriage Registrars
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in the District who shall likewise cause it to be published in like manner6. On the application of the party who has
given the notice, the Minister may issue a certificate of such notice. Such a certificate will be issued on the fulfilment
of the following two conditions7:—
(i) When the person desiring the declaration has, after personal appearance before the Minister, made a
solemn declaration:—
(a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance,
to the said marriage,

and when either or both of the parties is or are a minor or minors—

(b) that the consent or consents required by law has or have been obtained thereto, or that there is no
person resident in India having authority to give such consent, as the case may be.
(ii) (a) No such certificate shall be issued until the expiry of four days after the date of the receipt of the notice
by such Minister.
(b) No lawful impediment should be shown to his satisfaction why such certificate should not be issued.
(c) The issue of such certificate should not have been forbidden, in manner (hereinafter mentioned), by
any person authorised in that behalf.

With a view to procuring the marriage, if a false declaration is filed or false oath is taken, the person filing such false
declaration or, taking such oath is liable to be punished under section 193 of the Indian Penal Code, 1860 with a
term of imprisonment which may extend to three years, and, at the discretion of the court, a fine may also be
imposed1.

Consent of the guardian is needed if one of the parties to the marriage is a minor. The guardian has the power to
prevent the issuance of the certificate by giving notice in writing to the Minister on the ground that his consent had
not been obtained, or any prohibition to marriage exists2. On receipt of such a notice, the Minister shall not issue
the certificate without disposing of the notice. If he feels that the notice does not reveal any valid cause for refusing
the certificate or the notice is withdrawn, he would issue the certificate3. If he feels that a valid reason exists for the
refusal to issue the certificate he may refuse to do so.

When marriage is solemnized without proper witnesses, the persons responsible for such solemnization are liable
to be punished with a term of imprisonment which may extend to three years and a fine shall also be imposed.4

In case of minority, section 22 of the Act lays down the following provisions:—

When either of the persons intending marriage is a minor, and the Minister is not satisfied that the consent of the person
whose consent to such marriage is required by section 19 has been obtained, such Minister shall not issue such certificate
until the expiration of fourteen days after the receipt by him of the notice of marriage.

But whoever forbids the issue, by a Marriage Registrar of a certificate, by falsely representing himself to be a
person whose consent to the marriage is required by law, knowing or believing such representation to be false, or
not having reason to believe it to be true, shall be deemed guilty of the offence described in section 205 of the
Indian Penal Code, 1860. The punishment under section 205 of the Code as a term of imprisonment which may
extend to three years and a fine may also be imposed5.

Under section 17 of the Act an Indian Christian can also seek the issuance of certificate. But in his case the Minister
is, before he issues a certificate, required to ascertain whether he is cognizant of the purport and effect of the said
notice or certificate as the case may be, and, if not, shall translate or cause to be translated the notice or certificate
to him into a language which he understands6.

On the issuance of the certificate alone, marriage can be solemnized1. But if the marriage is not solemnized within
two months after the date of certificate, such certificate and all other proceedings thereafter shall be void2.

The bannas, the English equivalent of notice, were primarily “addressed to parents and guardians, to excite their
vigilance and afford them fit opportunities of protecting those lawful rights which may be avoided by clandestinity”3.
But if no objection is filed and the marriage is solemnized, the marriage will be valid and no criminal offence is
committed. The same is the position under the Indian law.
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Section 70 of the Act provides for penalties for solemnizing the marriage without notice or within fourteen days after
notice, marriage with minor. That section lays down:

Any Minister of Religion licenced to solemnize marriage under this Act, who, without a notice in writing, or when one of the
parties to the marriage is a minor and the required consent of the parents or guardians to such marriage has not been
obtained, within fourteen days after the receipt by him of notice of such marriage knowingly and wilfully solemnizes a
marriage under Part III, shall be punished with imprisonment for a term which may extend to three years, and shall also be
liable to fine.

Solemnization of marriage.—After the issue of the certificate by the Minister, marriage can be solemnized
between the parties according to such form or ceremony as the Minister thinks fit to adopt, but in every case the
marriage must be solemnized in the presence of at least two witnesses besides the Minister4.

Registration of marriages solemnized by Minister of Religion.5 —Every marriage solemnized by the Minister of
Religion will be registered in a register of marriages kept by the Clergyman of the Church of England in accordance
with the form laid down in the Third Schedule6. Section 29 of the Act requires filing of quarterly returns to
Archdeaconry. That section lays down:

Every Clergyman of the Church of Scotland shall keep a register of marriages, and shall register therein, according to the
tabular form set forth in the Third Schedule hereto annexed, every marriage which he solemnizes under this Act, and shall
forward quarterly to the Registrar General of Births, Deaths and Marriages, through the senior Chaplain of the Church of
Scotland, returns, similar to those prescribed in section 29, of all such marriages.

Registration of marriages solemnized by Clergyman of the Church of Rome.—Section 30 of the Act lays
down:

Every marriage solemnized by a Clergyman of the Church of Rome shall be registered by the person and according to the
form directed in that behalf by the Roman Catholic Bishop of the Diocese or Vicariate in which such marriage is
solemnized, and such person shall forward quarterly to the Registrar General of Births, Deaths and Marriages returns of the
entries of all marriages registered by him during the three months next preceding.

Registration of marriages solemnized by Clergymen of the Church of Scotland.—Section 31 of the Act

provides for the registration of marriages solemnized by Clergyman of the Church of Scotland. That section lays
down:

Every Clergyman of the Church of Scotland shall keep a register of marriages, and shall register therein, according to the
tabular form set forth in the Third Schedule hereto annexed, every marriage which he solemnizes under this Act, and shall
forward quarterly to the Registrar General of Births, Deaths and Marriages, through the Senior Chaplain of the Church of
Scotland, returns, similar to those prescribed in section 29, of all such marriages.

Marriage to be registered in duplicate.—Marriage solemnized by a person who has received episcopal

ordination, but who is not a Clergyman of the Church of England or of the Church of Rome or by any Minister of
Religion licensed under the Act to solemnize marriages, shall immediately after the solemnization of the marriage
require it to be registered in duplicate by the person solemnizing the same in a marriage-register-book to be kept by
him for that purpose according to the form laid down in the Fourth Schedule to the Act and also in a Certificate
attached to the marriage-register-book as a counterfoil1. The marriages thus registered in duplicate should be
signed by the person solemnizing the marriage and also by the bride and bridegroom, and attested by two credible
witnesses, other than the person solemnizing the marriage, present at its solemnization2.

Section 34 of the Act requires that certificates should be forwarded to the Marriage Registrar and copies should be
sent to the Registrar General. That section runs:

The person solemnizing the marriage shall forthwith separate the certificate from the marriage-register-book and send it,
within one month from the time of the solemnization, to the Marriage Registrar of the District in which the marriage was
solemnized, or if there be more Marriage Registrars than one, to the Senior Marriage Registrar, who shall cause such
certificate to be copied into a book to be kept by him for that purpose, and shall send all the certificates which he has
received during the month, with such number and signature or initials added thereto as are hereinafter required, to the
Registrar General of Births, Deaths and Marriages.
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Section 35 of the Act provides for the entries of the certificates entered into and numbered. That section runs:

Such copies shall be entered in order from the beginning to the end of the said book, and shall bear both the number of the
certificate as copied, and also a number to be entered by the Marriage Registrar, indicating the number of the entry of the
said copy in the said book, according to the order in which he receives each certificate.

Section 37 of the Act provides for the registration of marriages solemnized between Indian Christians. The
marriages of Indian Christians are to be registered in a separate register-book. After the book is filled in, it is to be
sent to the Marriage Registrar of the District who shall send it to the Registrar-General of Births, Deaths and
Marriages to be kept by him with the record of his office.

Solemnization of Christian Marriages in civil form, i.e., by or in presence of the Marriage Registrar.—The
Indian Christian Marriage Act, 1872 provides for the solemnization of marriages in civil form also. For the
solemnization of civil form of marriage, certain preliminaries to solemnization of marriage are laid down1.

Notice to Registrar.—Just as and in the same manner as notice is required to be served when a marriage is to be
solemnized by a Minister of Religion, a notice is to be served on the Marriage Registrar of the District where the
party serving the notice dwells. In case bride and bridegroom dwell in different districts, notice is to be served on the
Marriage Registrar of both the districts. The notice should contain the same details as are required when it is served
on the Minister of Religion2

The notice is to be published by a copy of it being affixed in some conspicuous place of the office of Registrar. In
case one of the parties intending marriage is a minor, every Marriage Registrar shall, within twenty-four hours after
the receipt by him of the notice of such marriage, send, by post or otherwise a copy of such notice to each of the
other Marriage Registrars (if any) in the same district, who shall likewise affix the copy in some conspicuous place
in his own office3. All such notices are to be filed by the Marriage Registrar and to be kept as record of his office. A
copy of all such notices is to be entered into in the Marriage Notice Book which is to be made available for
inspection to any person desirous of the same at all reasonable times and without any fee4.

The party serving the notice of the marriage on Registrar is entitled to a certificate. But he, or one of the parties to
the marriage should subscribe an oath before him stating:—
(a) that he or she believes that there is no impediment of kindred or affinity, or other lawful hindrance, to the
said marriage,
(b) that both the parties have, or (where they have dwelt in the district of different Marriage Registrars) that the
party making such oath has, had their, his or her usual place of abode within the district of such Marriage
Registrar, and where either or each of the parties is a minor, and
(c) that the consent or consents to such marriage required by law has or have been obtained thereto, or that
there is no person resident in India authorized to give such consent, as the case may be.

The certificate would be issued only when it is shown to the satisfaction of the Marriage Registrar that no lawful
impediment exists for refusing the certificate; that the issue of such certificate has not been forbidden by any person
authorized in that behalf by this Act; that four days after the receipt of the notice have expired; and further that
where, by such oath, it appears that one of the parties intending marriage is a minor, fourteen days after the entry of
such notice have expired.

Minor’s marriage earlier than 15 days from the date of notice.—When one of parties to marriage is a minor and
marriage is desired to be solemnized before the expiry of the period of fourteen days after a notice has been served
on the Marriage Registrar and if the parties reside in Calcutta, Madras and Bombay, then they may apply by petition
to a Judge of the High Court praying that the Marriage Registrar be ordered to issue the certificate earlier. On order
being made, the Marriage Registrar shall issue the certificate accordingly1.

Under section 70 of the Act if the marriage of a minor is solemnized before the expiry of fourteen days from the date
of certificate by the Minister of Religion, a punishment for a term of imprisonment which may extend to three years
as well fine may be imposed on him.

When one of the parties to the marriage is a minor consent of guardian is needed2 (See under the title—Guardian
for marriage: Christian Law). The same is the case when one of the parties is insane3. If the Registrar doubts the
authority of the person who declines to give consent to a minor’s marriage, then he may, by petition, apply to a
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Judge of the High Court, if his office is situated in the towns of Bombay, Calcutta and Madras, otherwise to the
District Judge stating all facts and circumstances can seek direction. If the appellate court comes to the conclusion
that the person forbidding his consent has no authority to do so, it will direct the Registrar to issue the certificate4.
Whenever a person lodges a frivolous protest against the issuance of the certificate he would be not merely
saddled with the costs of the proceedings but also with damages5.

When Marriage Registrar refuses Certificates.—Section 46 of the Act provides for two-fold appellate jurisdiction
when a Marriage Registrar refuses to issue a certificate. In case the Marriage Registrar is within the towns of
Calcutta, Madras and Bombay, then parties may appeal to the High Court of that place; in other cases appeal lies to
the District Judge. The appellate proceedings before the appellate court are summary in nature. The decision of the
appellate court is final.

Form of Certificate.—The form of certificate is laid down in the Second Schedule to the Act and it is the same as
issued when a marriage certificate is granted by a Minister of Religion.6

It is essential that the marriage should be solemnized within two months of the issuance of the certificate. If two
months or more are allowed to elapse the issuance of the certificate, a new certificate is required before marriage
can be solemnized1.

Solemnization of Marriage.—After the issuance of the certificate the parties can proceed to solemnize the
marriage in any form and with any ceremonies and rites that they may deem fit. But every such marriage must be
solemnized in the presence of the Marriage Registrar and two or more credible witnesses besides the Marriage
Registrar. It is also necessary that in some part of ceremony, each party should declare2:

I do solemnly declare that I know not of any lawful impediment why I, AB, may be not joined in matrimony to CD.

Further, each party to the marriage should say to the other before the Marriage Registrar and witnesses:

I call upon persons here present to witness that I, AB do take thee, CD, to be my lawful wife (husband).

The Marriage Registrar has power to seek all particulars from the bride and bridegroom necessary for the
solemnization of the marriage1.

Registration of Marriage.—Registration of civil marriage is as much compulsory as the registration of marriage

solemnized by the Minister of Religion. The Marriage Registrar is to register the marriage in duplicate. He must
enter it into the marriage-register-book in the form laid down in Schedule IV, and he also enter a certificate attached
to the marriage-register-book as a counterfoil3. The entry of such marriage in both the certificate and the marriage-
register-book shall be signed by the person by or before whom the marriage has been solemnized, if there be any
such person, and by the Marriage Registrar present at such marriage, whether or not it is solemnized by him, and
also by the parties married and attested by two credible witnesses other than the Marriage Registrar and the person
solemnizing the marriage. Every such entry shall be made in order from the beginning to the end of the book and
the number of the certificate shall correspond with that of the entry in the marriage-register-book.

Copies of all certificates are to be sent to the Registrar-General of Births, Deaths and Marriages every month.4

Penalties.—For violating any of the formalities laid down in the Act, section 71 provides for some penalties. That
section runs:

A Marriage Registrar under this Act, who commits any of the following offences:—

(1) knowingly and wilfully issues any certificate for marriage, or solemnizes any marriage, without publishing the
notice of such marriage as directed by this Act;

(2) after the expiration of two months after the copy of the notice has been entered as required by section 40 in
respect of any marriage, solemnizes such marriage;

(3) solemnizes, without an order of a competent court authorizing him to do so, any marriage, when one of the parties
is a minor, before the expiration of fourteen days after the receipt of the notice of such marriage, or without
sending by the post or otherwise, a copy of such notice to the Senior Marriage Registrar of the District if there be
more Marriage Registrars of the District than one, and if he himself be not the Senior Marriage Registrar;
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(4) issues any certificate the issue of which has been prohibited, as in this Act provided, by any person authorised to
prohibit the issue thereof,

shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to
fine.

Section 72 of the Act provides penalties when marriage is solemnized beyond the period of two months after the
issuance of the certificate or within fourteen days in the case of a minor. That section runs:

Any Marriage Registrar knowingly and wilfully issuing any certificate for marriage after the expiration of two months after the
notice has been entered by him as aforesaid,
or knowingly and wilfully issuing, without the order of competent court authorizing him so to do, any certificate for marriage
where one of the parties intending marriage is a minor, before the expiration of fourteen days after the entry of such notice,
or any certificate the issue of which has been forbidden as aforesaid by any person authorized in this behalf,
shall be deemed to have committed an offence under section 166 of the Indian Penal Code.

The punishment under section 166 of the Indian Penal Code, 1860 is for a term of simple imprisonment which may
extend to one year or with fine or with both.

Formalities for marriages among Indian Christians.— In Part VI of the Act, there exist separate provisions for
marriages among the Indian Christians. The expression “Indian Christian” includes the Christian descendants of
natives of India converted to Christianity as well as such converts1.

For the Indian Christians no preliminaries to marriage are laid down. No notice of intended marriage is required
either. A marriage between the Indianchristians may be solemnized on the fulfilment of the following conditions2:—
(1) the age of the man intending to be married shall not be under twenty-one years and the age of the woman
intending to be married shall not be under eighteen years;
(2) neither of the persons intending to be married shall have a wife or husband still living.

Solemnization of marriage among the Indian Christians.—For the solemnization of marriage among Indian
Christians licences may be issued to any Christian. In the presence of licensed Christian and at least two credible
witnesses other than such person, the bride and bridegroom should say to each other1:

I call upon these persons here present to witness that I, AB, in the presence of Almighty God, and in the name of our Lord
Jesus Christ, do take CD, to be my lawfully wedded wife (or husband).

The parties are free to say the aforesaid in substance (not necessarily in literal translation) in any of the regional
language understood by them.

Certificate of Marriage.—The Christian who has been licenced to perform the marriage and before whom the
marriage has been solemnized is required to grant a certificate of marriage on the application of either party to the
marriage on payment of a fee of four annas (it seems the attention of Parliament was not drawn to the fact that
annas are no longer Indian currency). (Equivalent of four annas is 25 paise.)

A Christian licensed for the solemnization of marriages among the Indian Christian is required to keep a marriage-
register-book in which all entries of marriage solemnized by, or before, them are to be made. A copy of the same is
to be sent to the Registrar-General of Births, Deaths and Marriages. Section 62 of the Act lays down that such a
person shall keep in English or in the vernacular language in ordinary use in the district or State in which the
marriage was solemnized, and in such form as the State Government by which he was licensed may from time to
time prescribe, a register-book of all marriages solemnized under this part in his presence; and shall deposit in the
office of the Registrar- General of Births, Deaths, and Marriages for the territories under the Administration of the
said State Government, in such form and at such intervals as that Government may prescribe, true and duly
authenticated extracts from his register-book of all entries made therein since the last of those intervals.

Penalties.—If an unlicensed person pretending to be licensed, grants certificate he is liable to punishment for a
term of imprisonment which may extend to five years and also be liable to fine. There is also a punishment for
refusal to grant a certificate improperly. It is a fine which may extend to Rs. 100. Section 74 of the Act runs:
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Whoever, not being licensed to grant a certificate of marriage under Part VI of this Act, grants such certificate intending
thereby to make it appear that he is so licensed, shall be punished with imprisonment for a term which may extend to five
years, and shall also be liable to fine. Whoever, being licensed to grant certificates of marriage under Part VI of this Act,
without just cause refuses, or wilfully neglects or omits, to perform any of the duties imposed upon him by that Part shall be
punished with fine which may extend to one hundred rupees.

Punishment for destroying or falsifying register-book.—Section 75 of the Act provides for punishment for
destroying or falsifying register-book. That section runs:

Whoever, by himself or another, wilfully destroys or injures any register-book or the counterfoil certificates thereof, or any
part thereof, or authenticated extract therefrom,
or falsely makes or counterfeits any part of such register-book or counterfoil certificates,
or wilfully inserts any false entry in any such register-book or counterfoil certificate or authenticated extract,
shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine.

limitation.—No prosecution can be launched for any offence under the Act after the expiry of a period of two
years.1

Correction of errors in register books.—Section 78 of the Act provides for correction of errors in registers. That
section runs:

Every person charged with the duty of registering any marriage, who discovers any error in the form or substance of any
such entry, may, within one month next after the discovery of such error, in the presence of the persons married, or, in case
of their death or absence, in the presence of two other credible witnesses, correct the error by entry in the margin, without
any alteration of the original entry, and shall sign the marginal entry, and add thereto the date of such correction, and such
person shall make the like marginal entry in the certificate thereof.
And every entry made under this section shall be attested by the witnesses in whose presence it was made.
And, in case such certificate has been already sent to the Registrar- General of Births, Deaths and Marriages, such person
shall make and send in like manner a separate certificate of the original erroneous entry, and of the marginal correction
therein made.

Searches and certified copies of marriage register.—Section 79 of the Act provides for searches of registers of
marriages. That section runs:

Every person solemnizing a marriage under this Act, and hereby required to register the same,
and every Marriage Registrar or Registrar-General of Births, Deaths and Marriages having the custody for the time being of
any register of marriage, or of any certificate, or duplicate or copies of certificate, under this Act,
shall, on payment of the proper fees, at all reasonable times, allow searches to be made in such register, or for such
certificate, or duplicate or copies, and give a copy under his hand of any entry in the same.

Section 80 of the Act provides facilities for obtaining certified copies of any such entry. That section runs:

Every certified copy, purporting to be signed by the person entrusted under this Act with the custody of any marriage-
register or certificate, or duplicate, required to be kept or delivered under this Act, of any entry of a marriage in such register
or of any such certificate or duplicate, shall be received as evidence of the marriage purporting to be so entered, or of the
facts purporting to be so certified therein, without further proof of such register or certificate or duplicate, or of any entry
therein, respectively, or of such copy

Parsi Law

There are no preliminaries prescribed for a Parsi marriage. The Registration of Parsi marriage is compulsory though
non-registration does not affect the validity of the marriage. Even if it is not certified it remains valid.

Solemnization of marriage.—Since there are no preliminaries for a Parsi marriage, only requirement for the
solemnization of a Parsi marriage is that the ceremony of ashirwad should be performed by a Parsi Priest in the
presence of two Parsi witnesses1.

Registration of Marriage.—Every Parsi marriage should, immediately after the solemnization of the marriage, be
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certified by the officiating priest in the form contained in Schedule II. The certificate should contain date and place of
marriage, names of the spouses, status at the time of marriage, rank or profession at the time of marriage, ages of
the parties, residences of the spouses, and name and rank or profession of the fathers or guardians of the spouses.
The certificate should be signed by the officiating Parsi Priest, by the spouses, by the father or guardians in case
parties to marriage (or one of them) is below the age of twenty-one, and witnesses to the marriage. The certificate
should be sent together with a fee of two rupees paid by the husband to the Registrar of the place at which such
marriage was solemnized.

On the receipt of the certificate and the fee, the Registrar should enter the certificate in a register kept by him for the
purpose. The fee belongs to the Registrar2. The Registrar of Marriages is appointed by the Chief Justices of the
High Courts for their States3. The Marriage Register is open to public inspection at all reasonable time and any
person can obtain certified extract from it on application to the Registrar, on payment of rupees two for each extract.

The Marriage Register is evidence of the truth of the statement contained therein.4

It is the duty of every Marriage Registrar to send the copies of the certificate periodically to the Registrar-General of
Births, Deaths and Marriages.5

Penalties.—If a Parsi priest solemnizes a marriage in violation of the conditions of marriage laid down in section 3
of the Act viz., the parties are not related to each other in any degrees of consanguinity or affinity, ceremony of
ashirwad should be performed, and in case any party to marriage has not completed the requisite age of marriage1,
he is liable to a punishment of imprisonment, the term of which may extend to six months or with fine which may
extend to two hundred rupees or with both2

In case the priest omits to certify a marriage or fails to sign the certificate, or fails to send the certificate to the
Marriage Registrar, he is liable for every omission to punishment of simple imprisonment the term of which may
extend to 3 months or with fine which may extend to Rs. 100 or with both3.

If the Registrar fails to enter the certificate in the Marriage Register, he is liable to be punished with simple
imprisonment, the term of which may extend to one year or with fine the amount of which may extend to Rs. 1000
or with both.4

Punishment is also provided for persons who are required to sign the certificate of marriage. Thus, the witnesses,
the father or guardian of the minor spouse and the spouses who omit to sign it may be punished with a fine not
exceeding Rs. 100. In case the priest fails to sign the certificate or fails to make it or make any other omission, he is
liable to be punished with a term of simple imprisonment which may extend to three months or with fine which may
extend to Rs. 100 or with both.

If any person who subscribes his signatures to the certificate of marriage subscribes a false statement therein,
which he either knows or believes to be false, is liable to be punished with simple imprisonment, the term of which
may extend to three months or with fine which may extend to Rs. 100 or with both.

But if such acts amounts to forgery then punishment is more severe. He can be sentenced to imprisonment the
term of which may extend to seven years as well as fine, under section 466 of the Indian Penal Code, 18605.

Section 16 of the Parsi Marriage and Divorce Act, 1936 provides for punishment to a person who secrets, destroys,
or dishonestly or fraudulently alters the Register of Marriage. Such a person is liable to be punished with
imprisonment for a term which may extend to two years, or if such a person is Registrar for a term of imprisonment
which may extend to five years and also with a fine which may extend to Rs. 500.

Section 17 of the Act lays down that any formal irregularity in the performance of ceremony of marriage will not
invalidate the marriage.
Special Marriage Act

The Special Marriage Act, 1954 requires certain preliminaries to the solemnization of marriage. It should be kept in
view that marriages under the Act are essentially civil marriages, and the Act provides for civil formalities.

Notice of Marriage and its Publication.—Under the Act notice of marriage is to be given by both the parties to
marriage (and not one of them as under the Indian Christian Marriage Act, 1872). It has to be given to the Marriage
Officer of the District where one of the parties to the marriage has resided for a period of not less than 30 days
immediately preceding the date on which such notice is given. In the notice the names, the status (unmarried,
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widow/widower or divorcee), ages and dwelling place of both the parties are to be stated. The length of residence
and the permanent dwelling (if the present dwelling place is not a permanent residence) are also to be stated1.

The Marriage Officer is required to keep all notices with the record of his office and to enter a true copy of every
such notice in Marriage Notice Book2.

The Marriage Notice Book is open for inspection at all reasonable time, without fee, by any person desirous of
inspecting the same2.

The notice of marriage is also to be published by the Marriage Officer by getting one of its copies affixed at some
conspicuous place of his office3.

In case where either party to the marriage is not permanently residing within the local limits of the District where a
marriage is intended to be solemnized, the Marriage Officer should also get a copy of the notice transmitted to the
Marriage Officer of the District within whose jurisdiction the party has his permanent abode. Such Officer shall
cause the publication of the notice in the similar manner4.

Objections to the Marriage.—Any person who has any objection to the solemnization of the marriage should file
his objections to the Marriage Officer before the expiration of 30 days from the date on which such notice was
published by the Marriage Officer. The objection can be taken only on the ground that the intended marriage will
contravene any of the conditions of marriage laid down in section 4 of the Act5. It is also necessary that the nature
of the objections should be recorded in writing by the Marriage Officer in the Marriage Notice Book and should be
read over and explained, if necessary, to the person making the objection.

Once objections are filed, the Marriage Officer would not proceed with the solemnization of the marriage. He is
required to look into the objections. If he is satisfied that none of the objection is valid, or objections have been
withdrawn, he would permit solemnization of the marriage6. If it appears to the Marriage Officer that the objection
made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person
objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part
thereof to the parties to the intended marriage, and any order for costs so made be executed in the same manner
as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his
office.

On the other hand, if he finds that objections are valid, he would not proceed to solemnize the marriage1.

In either case he should not take more than 30 days from the date of filing of objections, in their disposal2.

When the Marriage Officer sustains the objection and refuses to solemnize the marriage, either party to the
intended marriage has the right, within a period of 30 days from the date of such refusal, to prefer an appeal to the
District court within the local limits of whose jurisdiction the Marriage Officer has his office. The decision of the
District Court will be final and the Marriage Officer shall act in conformity with the decision3.

It appears that the person who has filed objections has no right to appeal in case his objections are rejected.

There is no right to a second appeal. Of course, the writ jurisdiction is available.

Powers of Marriage Officer when conducting inquiry into objections.—The Marriage Officer while conducting
an inquiry into the objections has all the powers vested in a civil court under the Code of Civil Procedure, 1908 and
all proceedings before him shall be deemed to be judicial proceedings. He has the power in the following
matters4:—
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and inspection;
(c) compelling the production of documents;
(d) reception of evidence of affidavits; and
(e) issuing commissions for the examination of witnesses.

Section 10 of the Act deals with procedure on receipt of objections by a Marriage Officer abroad.5

It is necessary that the marriage should be solemnized within three months from the date on which notice thereof
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has been given or within three months from the date of the decision of the district court, if an appeal has been
preferred.6

But if the period of three months as stated above is allowed to lapse, a new notice is imperative. The Marriage
Officer is not competent to solemnize the marriage after the lapse of that time1.

solemnization of marriage.—Before a marriage can actually be solemnized, the bride and bridegroom are
individually required to file a declaration in the form specified in the Third Schedule2. Each declaration should
contain: the status of the bride (or bridegroom as the case may be) at the time of marriage, i.e., whether he or she
is unmarried, divorcee or widow/widower, the age, and a statement that he or she is not related to the other within
the degrees of prohibited relationship. The bride and bridegroom in their individual declarations should also declare
that, “I am aware that, if any statement in this declaration is false, and if in making such statement I either know or
believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine”. To file a false
declaration is an offence under section 199, Indian Penal Code, 1860 for which the deponent may be sentenced to
a term of imprisonment which may extend to seven years and shall also be liable to a fine3.

Place and form of solemnization of marriage.—The parties have the option to get the marriage solemnized at
the office of Marriage Officer or at such other place within a reasonable distance therefrom as the parties may
desire. In such cases, they may be required to pay some additional fee4.

The parties are free to solemnize their marriage in any form, whatever pleases them, but in every case, no marriage
under the Act shall be complete and binding unless each party says to the other in the presence of the Marriage
Officer and three witnesses and in the language understood to the parties4.

I, A, take thee, B, to be my lawful wife (or husband).

It may be added that parties are free to add any other rites and ceremonies, religious or otherwise. But the
aforesaid civil ceremony must be performed.

Certificate of Marriage.—On the solemnization of marriage, the Marriage Officer should enter a certificate of
marriage in the Marriage Certificate Book in the form laid down in Schedule IV, the certificate should be signed by
the Marriage Officer, bride and bridegroom and the three witnesses before whom the marriage has been
solemnized5.

The certificate of marriage thus entered into is conclusive evidence of the fact that the marriage under the Act has
been solemnized between the parties and all formalities respecting the same have been complied with6.

The Marriage Certificate Book is open for inspection by any person at all reasonable time and is admissible as
evidence of the statements contained therein1. Any person can obtain the certified copies of the extracts from the
Marriage Certificate Book on application and on payment of prescribed fee2.

Transmission of copies of entries in the book to the Registrar-General.— Every Marriage Officer in a State
shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form
as may be prescribed a true copy of all entries made by him in the Marriage Certificate Book since the last of such
intervals, and in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be
sent to such authority as the Central Government may specify in this behalf.

Correction of errors.—Correction of errors can be made by the Marriage Officer in the entries of Marriage Register
Book. Section 49 of the Act runs:
(1) Any Marriage Officer who discovers any error in the form of substance of any entry in the Marriage
Certificate Book may, within one month next after the discovery of such error, in the presence of the
persons married or, in case of their death or absence in the presence of two other credible witnesses,
correct the error by entry in the margin without any alteration of the original entry and shall sign the
marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like
marginal entry in the certificate thereof.
(2) Every correction made under this section shall be attested by the witnesses in whose presence it was
made.
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(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other
authority the Marriage Officer shall make and send in like manner a separate certificate of original
erroneous entry and of marginal corrections therein made.

Penalties for wrongful action of Marriage Officer.—Solemnization of any marriage in violation of the provisions
of the Act by the Marriage Officer is an offence. Section 46 of the Act lays down that any Marriage Officer who
knowingly and wilfully solemnizes a marriage:—
(a) without publishing a notice of marriage, or
(b) within thirty days of the publication of notice of such marriage, or
(c) in contravention of any other provisions contained in the Act, is liable to be punished with simple
imprisonment for a term which may extend to one year or with fine which may extend to Rs. 500 or with
both.

Registration of Marriages Solemnized under any other Personal Law

It is a unique feature of the Special Marriage Act, 1954 that any marriage solemnized in any other form under any
law, Indian or foreign, between any two persons may be registered under the Act3 on the fulfilment of certain
conditions4and on such registration all the provisions of the Act will become applicable to such parties. Thus, if a
Muslim marriage is registered under the Act, not merely all the matrimonial causes, including divorce on any
grounds, fault, consent or irretrievable breakdown, are available but also the succession to their property will be
regulated by the Indian Succession Act, 19251. One of its implication is that any party to such marriage will be able
to dispose of his or her entire property by Will, and to any person, including a natural heir. Thus, if a Muslim couple
gets their marriage registered, testamentary and intestate succession to their property will be regulated by the
Indian Succession Act, 1925. Thus, all restrictions of testamentary dispositions that exist under Muslim law, will no
longer be applicable to them. But a marriage, which is neither solemnized under the Act nor registered, cannot be
dissolved under the Act2.

Conditions of registration.—On the fulfilment of the following conditions a marriage will be registered under the
Act:—
(a) a ceremony of marriage has been performed between the parties and they have been living together as
husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot nor a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage
celebrated before the commencement of this Act, this condition shall be subject to any law, custom or
usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty
days immediately preceding the date on which the application is made to him for registration of the
marriage.

Procedure for Registration.—Both the parties to marriage should move a joint application for the registration of
the marriage to the Marriage Officer of the District where they have been residing for a period of 30 days
immediately preceding the date on which application is made.3 Thereupon the Marriage Officer will give a public
notice and thereafter allow a period of 30 days for objections. If any objections are received he would dispose them
of. If no objections are received or he finds that objections are not sustainable and on the satisfaction that
conditions laid down in section 15 for registration have been fulfilled, the Marriage Officer will enter a certificate of
the marriage in the Marriage Certificate Book in the form specified in V Schedule3. Such certificate will be signed by
both the parties and three witnesses as well as by the Marriage Officer. The names of the children of the parties to
registration should be entered into the certificate. However, entering of the names of the children in the certificate
does not confer on children a status of legitimacy if they were at the time of registration not legitimate children of
their parents.4
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Section 16 of the Act visualizes framing of Rules, but no rules either by the Central Government or any State
Government has been framed in this regard.

Appeal.—An appeal lies to the District Court with in whose jurisdiction the Marriage Officer has his office against
any order of the Marriage Officer by any aggrieved party, viz., parties to the marriage or the objector. The appeal
must be preferred within thirty days of the order of the Marriage Officer against which appeal is sought to be
preferred1.

The decision of the district court in any appeal is final and the Marriage officer should act according to the decision1.

Of course, the writ jurisdiction is not barred.

Effect of registration.—Once a certification of marriage is finally entered into the Marriage Certificate Book, the
marriage from the date of registration will be deemed to be a marriage under the Act. In other words all the
provisions of the Act, including Chapter IV, will apply to the parties2. This statement should be read subject to the
following two qualifications:
(a) A marriage registered under the Act cannot be declared void on the grounds of void marriages laid down in
the Act, i.e., section 16, but registration of such a marriage may be cancelled if registration has been
effected in violation of the conditions of registration laid down in clauses (a) to (e) of section 153. But no
such declaration can be made if objections to registration were made before the Marriage Officer who
rejected them and the objector’s appeal to the District Court was also rejected.4
(b) Children born after the date of solemnization of the original marriage and whose names have been entered
into the certificate of registration shall in all respects be deemed to be and always to have been legitimate
children of their parents2. Provided that nothing contained in this section shall be construed as conferring
upon any such children any right or to the property of any person other than their parents in any case
where, but for the passing of this Act, such children would have been incapable of possessing or acquiring
any such rights by reason of their not being the legitimate children of their parents.5

Marriage without requisite Ceremonies

It is a well-established proposition of law that where requisite ceremonies have not been performed the marriage is
void.6

1 Adams v. Palmer,(1863) 51 Maine 480.

2 See Part IV of Chapter III of this work, where this aspect of law has been discussed.
1 Hindu law also recognised 13 kinds of sons, of which all except two aurasa and dattaka, have become obsolete.
2 According to Manu, “The gift of a daughter who has been decked with ornaments, to a priest who duly officiates at a
sacrifice during the course of its performance, they call the Daiva rite”, Manu Smriti, III, 28.
3 According to Manu, “When the father gives away his daughter according to the rule, after receiving from the
bridegroom, for fulfilment of the sacred law, a cow and a bull or two pairs, that is named to Arsha rite” Manu Smriti, III,
29.
4 According to Manu, “The gift of a daughter by her father after he has addressed the couple with the text, ‘May both of
you perform together your duties’ and has shown honour to the bridegroom is called the Prajapatya rite,” Manu Smriti,
II, 30.
5 According to Manu, “the voluntary union of a maiden and her lover, one must be known to be the Gandharva rite, which
springs from desire and has sexual intercourse as its purpose.”
6 According to Manu, “When the bridegroom receives a maiden after having given as much wealth as he can afford, to
the kinsmen and the bride herself, according to his own will, that is called the Asura rite.”
7 According to Manu, “The forcible abduction of a maiden from her home, while she cries out, and weeps after her
kinsmen have been slain or wounded and their house broken open, is called the Rakshasa rite,” Manu Smriti, III, 33.
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8 According to Manu, “When a man by stealth seduces a girl who is sleeping, intoxicated, or unconscious, that is the
eighth, the most base and sinful, Pisachac rite,” Manu Smriti, III, 34.
9 Manu Smriti, III, 27.
10 Booni v. Maharaj Singh, (1881) 3 All 738 . The crucial text of Manu Smriti, III, 32.
1 See Subramania Iyer v. Ratnavelu Chetti, AIR 1918 Mad 1346 : ILR 41 Mad 44 (FB); Krihendevi v. Sheo Parshad,
(1926) 48 All 126; Kamini Devi v. Kameshivar Singh, ILR 25 Pat 58: AIR 1946 Pat 316 .
2 Viramitrodaya, 177.
3 Manu Smriti, III, 32.
4 Manu Smriti, III, 31.
5 Section 6.
1 Syed Amanullah Hussain v. Rajamma, AIR 1977 AP 152 [LNIND 1976 AP 148]: (1976) 2 APLJ (HC) 323: (1977) 1
Andh WR 123: 1977 Mat LR 45.
2 Amir Ali, Mohammedan Law, Vol. II (5th Edn.), pp. 398-99.
1 (1914) 17 Bom LR 13 (17).
2 ILR 1953 Hyd 6.
3 Faizee, 114. He cites Agha Ali Khan v. Altaf Hasan Khan, ILR (1892) 14 All 429 : 1892 All WN 187(FB); aziz Bano v.
Muhammad, AIR 1925 All 720 : ILR (1925) 47 All 823.
4 Amir Ali, Mohammedan Law, II, 400.
5 Baillie, Digest of Moohummudan Law, II, 344.
6 Luddun v. Miarja Kama, ILR (1882) 8 Cal 336 .
1 Md. Abid v. Ludden, ILR (1887) 14 Cal 276 .
2 Amir Ali, Mohammedan Law, II (5th Edn.), 401.
3 The Sharaya-ul-Islam, 282.
4 Baillie, Digest of Moohummudan Law, II, 43; Amir Ali, Mohammedan Law, II, 401-2; Md. Abid v. Ludden, ILR (1887) 14
Cal 276 .
5 For difference of opinion among the Shia jurists on this matter, see Amir Ali, Mohammedan Law, II, 420-24.
1 See Abdul Kadir v. Salima, ILR 8 All 149: 1886 All WN 53(FB).
2 For detailed discussion of rights and duties of husband and wife see Amir Ali, Mohammedan Law, 405-32.
1 See author’s work Modern Hindu Law—Codified and Uncodified (6th Edn.), p. 115.
2 Bakh Bibi v. Quim Din, AIR 1934 Lah 907 .
3 Amir Ali, Mohammedan Law, II, 348, but see Md. Shafi v. Raunaq Ali, 1928 Oudh 231.
1 See Part III, Christian Marriage Act, 1872. Section 5 of the Act lays down a list of Ministers of Religion who are
authorized to solemnize the marriage.
2 Part II of the Christian Marriage Act, 1872. Part VI of the Act deals with the solemnization of marriages of the Indian
Christians.
3 Part VI of the Christian Marriage Act, 1872.
4 Lakshmi Sanyal v. Sachit Kumar Dhar, (1972) 2 SCC 64 : (1973) 2 SCR 122 [LNIND 1972 SC 423]: AIR 1972 SC 2667
[LNIND 1972 SC 423].
5 Section 3(b) of the Parsi Marriage and Divorce Act, 1936.
1 Manu Smriti, IX, 99.
2 Narada Smriti, XII, 30-32; Yajnavalkya Smriti, I, 65-66; Mitakshara, II, IX, 26-27.
3 Khimji v. Narsi, ILR (1915) 39 Bom 682 . The same view was expressed in Jekisondas v. Ranchoddas, ILR (1917) 41
Bom 446 ; Kandaswami v. Kanniah, (1924) 46 MLJ 366 [LNIND 1923 MAD 328].
4 ILR (1896) 21 Bom 23 .
5 Freny Engineer v. Shapurji, AIR 1937 Bom 392 : 39 Bom LR 486: 171 IC 304.
6 1937 MWN 1274.
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7 Abdul Razak v. Mohammed Hussein, ILR (1916) 42 Bom 499 .

1 Atma v. Banku, ILR (1930) II Lah 598 .
2 Narada Smriti, XII, 35.
3 Umed Kika v. Nagindas,(1870) 7 Bom HCR 122; Gunpat Narain Singh (in re:), (1875-76) ILR 1 Cal 74.
4 Gunpat Narain Singh (in re:), (1875-76) ILR 1 Cal 74.
5 Lowe v. Peers,(1768) 4 Burr 225.
6 Khothlal v. Marion, 59 IC 804; Foonoo v. Fyzee, 23 WR 66; Sitaram v. Ahree, 11 Bom LR 129; Emperor v. Lazar, ILR
30 Mad 550: 6 Cr LJ 338.
1 AIR 1932 Oudh 108 .
2 AIR 1942 All 351 : 205 IC 249: (1942) All 810.
3 Bai Fatima v. Ali Mahomed, ILR (1937) 37 Bom 280 .
4 Mulla, 306.
5 Amir Ali, Mohammedan Law, II, 321-22.
6 The deed of marriage is called kabinnama and it contains the terms of agreement between the parties and usually
specifies the amount of dower. It is ordinarily handed over to the wife or to her relations.
1 Abdul v. Hussembi, (1904) 6 Bom LR 728; Imam Ali v. Arfatunnessa, (1913) 18 CWN 923 : 21 IC 87; Bai Fatima v. Ali
Mahomed, (1920) Lah 597.
2 Jani v. Md. Khan, AIR 1971 J&K 40 (FB).
3 Sakina v. Shamsad, AIR 1936 Pesh 195 .
4 Saifuddin Sekh v. Soneka Bibi, AIR 1955 Assam 153 : (1954) 59 CWN 139: ILR (1955) 7 Assam 1 .
5 Faizee, 121.
6 The Daaimal Islam; see Faizee, 121-22.
7 AIR 1951 Mad 992 [LNIND 1950 MAD 231]: 1951 MWN 523: 64 MLW 756.
1 (1910) ILR 32 All 410: 37 IA 152: 20 Mad LJ 614 (PC).
2 Badu v. Badarannessa,(1919) 29 CLJ 230.
3 Hermann v. Charlesworth, (1905) 2 KB 123: (1905) 74 LJKB 620.
1 For instance, see Purshotamdas Tribhovandas v. Purshotamdas Mangaldas Nathubhoy, (1897) ILR 21 Bom 23.
2 See Dolidas v. Fulchand, ILR (1897) 22 Bom 658 ; Baldeo v. Mohamaya, (1911) 15 CWN 447; Kalavangunta Venkata
v. Kakvangunta Lakshmi, ILR (1908) 32 Mad 185 ; abbas Khan v. Nor Khan, ILR (1920) 1 Lah 574 .
3 AIR 1914 Mad 551 : 37 Mad 393.
4 See also Fazal Rahim v. Nur Mohammed, AIR 1935 Pesh 121 .
5 Vaithyanathan v. Gungarazu, ILR (1893) 17 Mad 9 ; Pitamber v. Jagiwan, ILR (1984) 13 Bom 131 ; Bhan Singh v. Kaka
Singh, AIR 1933 Lah 849 : 149 IC 1028.
6 ILR (1896) 21 Bom 23 .
7 AIR 1937 Bom 392 : 171 IC 304: 39 Bom LR 486.
8 Shafi Ullah v. E., AIR 1934 All 589 : 35 Cr LJ 1053.
1 Baillie, Digest of Moohummudan Law, I, 76. See also Kazi Sidhique Hussain v. Salima, 61 CWN 187.
2 Erfanuddin v. Badan Sheikh, 51 IC 583.
3 Baillie, Digest of Moohummudan Law, 78.
4 Baillie, Digest of Moohummudan Law, 75.
5 Hedaya, 42; Baillie, Digest of Moohummudan Law, I, 76-78.
6 Baillie, Digest of Moohummudan Law, II, 9; Hedaya, 42.
1 Baillie, Digest of Moohummudan Law, I, 82.
2 Baillie, Digest of Moohummudan Law, II, 352.
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3 See Amir Ali, Mohammedan Law, II, 352.

4 Hedaya, 391.
5 Baillie, Digest of Moohummudan Law, I, 84-85; Hedaya, 43.
1 Mitakshara, II, IX, 28.
2 (1909) ILR 33 Bom 411:3 Ind Cas 748.
3 ILR (1919) 44 Bom 446 : AIR 1920 Bom 225 .
4 AIR 1924 Mad 692 [LNIND 1923 MAD 328]: 78 IC 572.
5 Umed Kika v. Nagindas,(1870) 7 Bom HCR 122, was relied upon.
6 AIR 1950 All 592 [LNIND 1950 ALL 62]: 1950 ALJ 419: 1950 AWR 455.
1 Section 2(a) of the Prohibition of Child Marriage Act, 2006 (6 of 2007).
1 Hedaya, I, 56; see also the Fatwa-i-Alamgiri, 399.
2 The Sharaya-ul-Islam, 263.
3 See Amir Ali, Mohammedan Law, II, 343-44.
4 See Amir Ali, Mohammedan Law, II, 34.
5 Kammu v. Ethiyumma, 1967 KLT 913 : 1968 Ker LJ 43; Kummali Abubukker v. Vengatt Marakkar, AIR 1970 Ker 277
[LNIND 1970 KER 2]: 1970 Ker LT 132 [LNIND 1970 KER 2]: 1970 Ker LR 156: 1970 Ker LJ 226.
6 Kammu v. Ethiyumma, 1967 KLT 913 : 1968 Ker LJ 43.
7 Kummali Abubukker v. Vengatt Marakkar, AIR 1970 Ker 277 [LNIND 1970 KER 2] (279): 1970 Ker LT 132 [LNIND
1970 KER 2]: 1970 Ker LR 156: 1970 Ker LJ 226.
8 See in the matter of Mahim Bibi,(1874) 13 Beg LR 160; Sham Singh v. Santa Bai, ILR (1901) 25 Bom 551 .
9 The Sharaya-ul-Islam, 263-64.
10 The Fatwa-i-Alamgiri, the Radd-ul-Muktar, II, 502.
1 The guardians for marriage under the Hanafi school are: the father, the father’s father, how high soever, full brother;
consanguine brother; full brother’s son; consanguine brother’s son; full paternal uncle; consanguine paternal uncle; full
paternal uncle’s son; consanguine paternal uncle’s son. After these males and cognates; first, the mother, then the
cognates relations in the following order: paternal grandmother; maternal grandmother; full sister; consanguine sister;
uterine brother and sister and descendants of each; paternal aunt; maternal uncle; maternal aunt; paternal uncle’s
daughter and their descendants; other distinct kindred; and lastly, the king or the kazi (judge). See Paras Diwan, Law of
Paternal Control, Guardianship and Custody of Minor Children, 502.
2 The Sharaya-ul-Islam, 262.
3 The Radd-ul-Muktar, II, 517.
4 The Radd-ul-Muktar, II, 515 and 551.
5 A ghibat-ul-munkata is one who has gone away to a distant place, i.e., being removed to a city far away from the route
of the caravans, or not visited by the caravans more than once a year. See the Hedaya I, 401; the Fatwai Kazi Khan,
Vol. I, 406. Some hold the view that one can be ghibat-ul-munkata only when one is at such a distance that it requires
at least three days journey to come back home. It is submitted that this provision had relevance in times when the
means of communication and transport were primitive.
6 Baillie, Digest of Moohummudan Law, I, 49; the Hedaya, 699.
1 Chirag Bibi v. Ghulam Sarwar, (1921) 60 IC 453; Ayub Hasan v. Akhtari, AIR 1963 All 525 [LNIND 1962 ALL 160]:
1963 All LJ 491: 1963 All WR (HC) 417.
2 Kummali Abubukker v. Vengatt Marakkar, AIR 1970 Ker 277 [LNIND 1970 KER 2]: 1970 Ker LT 132 [LNIND 1970 KER
2]: 1970 Ker LR 156: 1970 Ker LJ 226.
3 AIR 1997 J&K 22.
4 Section 3(c).
1 This has been the position under English law and Commonwealth countries and in most States of the United States.
This is so under the Hindu Marriage Act, 1955;Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872.
2 Under Hindu Marriage Act, 1955 violation of the condition of age does not render the marriage void or voidable. The
marriage remains valid, though under section 18, violation of this condition can lead to 15 days’ simple imprisonment or
fine which may extend to Rs. 1,000 or both.
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3 Words “or epilepsy” omitted by section 2 of the Marriage Law (Amendment) Act, 1999 (39 of 1999).
1 words “or epilepsy” omitted by section 3 of the Marriage Law (Amendment) Act, 1999 (39 of 1999).
1 See Krishnan v. Ammalu, AIR 1972 Ker 91 [LNIND 1971 KER 106]: 1971 Ker LT 599 [LNIND 1971 KER 106]: 1971
Ker LJ 572 (relate to thiyyas).
2 Section 5(1) of the Hindu Marriage Act, 1955.Sarvesh Mohan Saxena v. Sanju Saxena, AIR 2010 Uttkha 16 : 2009 (2)
DMC 665: 2009 (2) HLR 234.
3 Section 17.
4 Sections 494 and 495 of the Indian Penal Code, 1860.
1 See Paras Diwan, Muslim Law in Modern India, (1993) 42.
2 See Paras Diwan, Muslim Law in Modern India, (1993) 42 at 43.
3 The Koran, IV, 3.
4 The Koran, IV, 129.
5 (2000) II DMC I: 2000 SCC (Cri) 1056 [LNIND 2000 SC 827]: (2006) 6 SCC 224 [LNIND 2000 SC 827]: AIR 2000 SC
1650 [LNIND 2000 SC 827].
6 Itwari v. Ashgari, AIR 1960 All 684 [LNIND 1959 ALL 153]: 1960 All LJ 523: 1960 All WR (HC) 397, is an exceptional
case, and there are not many judges who will accept philosophical assumptions of Dhawn, J.
1 Under the Dissolution of Muslim Marriage Act, 1939, section 2(ii)(f), this is included in the definitions of cruelty.
2 See Derrett, Critique to Modern Hindu Law, 309.
3 Section 11 of the Hindu Marriage Act, 1955; section 4(2) of the Parsi Marriage and Divorce Act, 1936; section 24 of the
Special Marriage Act, 1954 and section 14(4) of the Indian Divorce Act, 1872.See also Perumal Gounder v.
Panchayappan, AIR 1990 Mad 110 [LNIND 1989 MAD 252]: (1990) 2 DMC 338; Chamundamma v. Lakshmi, AIR 2015
Kant 21 [LNIND 2014 KANT 4611].
4 Kanwal Ram v. State of Himachal Pradesh, AIR 1966 SC 614 [LNIND 1965 SC 198]: (1966) 1 SCR 539 [LNIND 1965
SC 198]: 1966 (1) SCJ 210 : 1966 Cr LJ 472; V. Varadarajan v. State of Madras, AIR 1965 SC 1564 [LNIND 1965 SC
20]: (1965) 2 Cr LJ 544: 1966 (1) SCJ 298 [LNIND 1965 SC 20]: (1965) 2 SCR 837 [LNIND 1965 SC 20]; Bhaurao
Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564 [LNIND 1965 SC 20]: (1965) 2 SCR 837 [LNIND 1965
SC 20]: 1966 (1) SCJ 298 [LNIND 1965 SC 20]; Padullaparthy Mutyalh Paradesi v. Padullaparthy Subblakshmi, AIR
1962 AP 311 [LNIND 1961 AP 100]: (1962) 1 Andh WR 91: (1962) 2 Cr LJ 308 : ILR (1962) AP 527 [LNIND 1961 AP
100]; Kunta Devi v. Siri ram, AIR 1963 Punj 235 : 65 Pun LR 145; Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR
1971 SC 1153 [LNIND 1971 SC 163]: (1971) 1 SCC 864 [LNIND 1971 SC 163]: (1971) 3 SCR 961 [LNIND 1971 SC
163]; Modi v. Modi, 1975 Cal LJ 298.
5 Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153 [LNIND 1971 SC 163]: (1971) 1 SCC 864 [LNIND
1971 SC 163]: (1971) 3 SCR 961 [LNIND 1971 SC 163].
6 AIR 1996 SC 1654 [LNIND 1996 SC 171]: 1996 (1) CCC 423: JT 1996 (1) SC 467 : (1996) 7 SCC 555.
1 A.N. Mukerji (Dr.) v. State of Uttar Pradesh, AIR 1969 All 489 [LNIND 1968 ALL 2]: 1969 Cr LJ 1203.
2 See Paras Diwan, Ceremonial Validity of Hindu Marriage: Need for Reform; (1977) 2 SCC (J) 22.
3 Katari Subba Rao v. Katari Sethe Mahalakshmi, AIR 1994 AP 364 [LNIND 1994 AP 175]: 1994 (2) Andh LT 723
[LNIND 1994 AP 175]: 1995 (1) DMC 169 : 1994 (2) Hindu LR 185 . Also see Sarabjit Singh v. Charanjit Kaur, AIR
1997 P&H 66 : (1996) 2 HLR 57: 1997 Marri LJ 289(P&H); Jayalakshmi v. Gayatri, AIR 1998 Kant 169 [LNIND 1998
KANT 24]: 1998 (2) CCC 524: 1998 (1) DMC 681 : 1998 (3) Kant LJ 116 : 1998 Mat LR 403.
4 M.M. Malhotra v. Union of India, AIR 2006 SC 80 [LNIND 2005 SC 777]: 2005 AIR SCW 5497: JT 2005 (9) SC 506
[LNIND 2005 SC 777]: (2005) 8 SCC 351 [LNIND 2005 SC 777]: (2005) 8 SCALE 202 [LNIND 2005 SC 777]: 2005 (7)
Supreme 111.
5 Shankarappa v. Basamma, AIR 1964 Mys 247 ; Sitabai Ramchandra Todankar v. Ramchandra Raghunath Todankar,
AIR 1958 Bom 116 : ILR 1958 Bom 190: 59 Bom LR 885 (FB); see for the contrary view Sampath, (1972) MLJ (Jour)
2(6).
6 Kedar Nath v. Suprava, AIR 1963 Pat 311 : 1964 BLJR 57.
1 (1964) 2 AWR 142.
2 Megh Prasad v. Bhagwantin Bai, AIR 2010 Chh 25 : 2010 AIHC 612: 2010 (2) Marri LJ 236.
3 Santosh Kumari v. Surjit Singh, AIR 1990 HP 77 [LNIND 1989 HP 19]: (1989) 2 DMC 248: 1990 Cr LJ 1012.
4 History of Dharamshastra, Vol. III, 824.
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5 Critique of Modern Hindu Law, 308.

6 Critique of Modern Hindu Law, 309.
1 Critique of Modern Hindu Law, 309.
2 See Paras Diwan, Technological Niyog and Nirodh and Social Engineering through Law, (1980) 22 JILI 445.
3 M.M. Malhotra v. Union of India, (2005) 8 SCC 351 [LNIND 2005 SC 777]: 2005 SCC (L&S) 1139: AIR 2006 SC 80
[LNIND 2005 SC 777].
1 See Dubey v. Dubey, AIR 1951 All 529 [LNIND 1950 ALL 117]: (1951) 2 All 439: 1950 ALJ 932.
2 See Rajammal v. Mariyammal, AIR 1954 Mys 38 : 32 Mys LJ 101: ILR 1953 Mys 558.
3 M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363 [LNIND 2003 KER 412]: 2004 (1) CCC 423: 2004 (1) DMC 667 :
2003 (3) Ker LT 695 [LNIND 2003 KER 412].
4 Madhavi ramesh Dudani v. Ramesh K. Dudani, AIR 2006 Bom 94 [LNIND 2005 BOM 1163]: 2006 (2) CCC 206: 2006
(2) Mah LJ 307 [LNIND 2005 BOM 1163]: 2006 Mat LR 306(DB).
5 See Bahadur v. Kartar, AIR 1950 MB 1 : Madh BLR 425.
6 Nilesh Narin rajesh Lal v. Kashmira Bhupendrabhai Banker, AIR 2010 Guj 3 [LNIND 2009 GUJ 349]: 2010 (1) HLR
439: 2010 (1) Marri LJ 346.
7 AIR 2015 Bom 42 [LNIND 2014 BOM 1004].
1 AIR 2015 Guj 49 .
2 Chetti v. Chetti, (1909) p. 67; Sainapati v. Sainapati, AIR 1932 Lah 116 : 136 Ind Cas 262. For details see Paras Diwan,
Indian and English Private International Law, Chapter VIII.
3 Lata Singh v. State of Uttar Pradesh, AIR 2006 SC 2522 [LNIND 2006 SC 482]: 2006 Cr LJ 3309: 2006 AIR SCW
3499: (2006) 5 SCC 475 [LNIND 2006 SC 482]: 2006 (7) SCJ 55: (2006) 6 SCALE 583 [LNIND 2006 SC 482]: 2006
SCC (Cri) 478: 2006 (5) Supreme 266.
4 The Koran, V., 5.
5 Baillie, Digest of Moohummudan Law, 29, 40; see Mulla, (17th Edn.), 260; see Faizee (3rd Edn.) 93, 97.
1 Section 4.
2 Mohammedan Law, Vol. II, 154.
3 Amir Ali, Mohammedan Law, II, 154; Faizee, 94-95; Mulla, (17th Edn.), 259; Ishar v. Pannalal, ILR (1928) 7 Pat 6 .
4 Mulla, 259.
5 Faizee, 95-96.
1 Section 88 of the Indian Christian Marriage Act, 1872.
2 Section 12(2) of the Special Marriage Act, 1954.
3 Section 21.
4 Section 21A.
1 See rai Gulab v. Jiwan Lal, ILR (1922) 46 Bom 471 ; Mehta v. Mehta, ILR (1931) 55 Bom 1 .
2 Kastoori v. Chiranjit, AIR 1960 All 446 [LNIND 1959 ALL 197].
1 Valsamma Paul v. Cochin University, (1996) 3 SCC 545 [LNIND 1996 SC 19]: AIR 1996 SC 1011 [LNIND 1996 SC
19]: 1996 SCC (L&S) 722.
2 Prabhu, Hindu Social Organization, 155-56.
3 Syed Gholum v. Setahate Begum, (1866) 6 WR 88; Nasrat v. Hamidan, ILR (1882) 4 All 205 ; aziz Bano v. Muhammad,
ILR (1925) 47 All 823 .
1 Vishnu ordained that for such a person there was no prayashitta, except that he should throw himself in blazing fire:
Vishnu Smriti, XXXIV, 1, 10. Manu, Yajnavalkya, Baudhayana and other sages took the same view, Manu Smriti, IX,
59; Yajnavalkya Smriti, III, 231; Baudhayana Smriti, II, ii, 13.
2 Yajnavalkya Smriti, I, 52-53; Manu Smriti, III, 5. The early Smritikars like Gautama and Vashishtha laid down the limit
upto five degrees on the mother’s side and six degrees on the paternal side.
3 Manu Smriti, III, 5.
1 Section 3(c) of the Hindu Marriage Act, 1955.
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2 Section 3(d) of the Hindu Marriage Act, 1955.

3 See section 6 of the Hindu Adoptions and Maintenance Act, 1956.
1 Mulla, Hindu Law, (11th Edn.), 623.
1 Mayne, Hindu Law and Usage, (11th Edn.), 152.
2 Niranaya Sindhu, 561 (Setlur’s translation).
3 Mayne, Hindu Law and Usage, 154.
1 Mayne, Hindu Law and Usage, 157.
1 Paras Diwan, Modern Hindu Law, (1993-94)
1 See Narada Smriti, 1, 40. See also Gautama, XXVIII, 48; Brihaspati, II, 12; Collector of Madura v. Mooto ramalinga,
(1863) 12 MIA 397; Paras Diwan, Modern Hindu Law, (1985), 48-49. -or details see Paras Diwan, Customary Law,
(1978), Chapters I to VII.
2 Section 5(v) of the Hindu Marriage Act, 1955
3 See Mayne, Hindu Law and Usage, 154-159.
1 Explanation to section 3 of the Hindu Marriage Act, 1955.
1 Section 5(iv) of the Hindu Marriage Act, 1955.See also K. Kamakshi v. Mani, (1970) 2 MLJ 47; V.S. Subba Reddiar v.
Seetharaman, (1972) 1 MLJ 497 [LNIND 1971 MAD 244]: AIR 1972 Mad 421 [LNIND 1971 MAD 244].
2 The Koran, IV, 23.
1 See Amir Ali, Mohammedan Law, II, 278.
2 See Amir Ali, Mohammedan Law, II, 279.
3 Amir Ali, Mohammedan Law, II, 279.
1 Karim Baksh v. Mukabar, 52 PR 58.
2 See Amir Ali, Mohammedan Law, Vol. II, 278, for a contrary view.
3 Baillie, Digest of Moohummudan Law, II, 24-25.
4 Baillie, Digest of Moohummudan Law, I, 31; Hedaya, 29.
5 Amir Ali, Mohammedan Law, II, 279.
1 Amir Ali, Mohammedan Law, II, 279.
2 Hedaya, 67.
3 Baillie, Digest of Moohummudan Law, I, 196; Hedaya, 70-71.
4 Minbaj, 378.
5 Baillie, Digest of Moohummudan Law, I, 193.
1 Baillie, Digest of Moohummudan Law, II, 15-16.
2 Amir Ali, Mohammedan Law, II, 279.
3 Baillie, Digest of Moohummudan Law, II, 197.
4 Baillie, Digest of Moohummudan Law, II, 16.
5 Hedaya, 70.
6 Hedaya, 68; Baillie, Digest of Moohummudan Law, I, 194.
7 Hedaya, 69.
8 Janab Ali v. Nazam Uddin, 19 CWN 897.
1 Mulla, (17th Edn.), 261.
2 Tajbi v. Mowla, ILR 1985 Cal 130; Kaniza v. Hasan, ILR (1926) Oudh 231; taliamand v. Mohd. Din, AIR 1930 Lah 907 :
ILR 12 Lah 52; rahiman Bibi v. Mahboob Bibi, (1937) 2 MLJ 753 [LNIND 1937 MAD 227].
3 Faizee, 102. Faizee says that the courts took this view on account of strong criticism by Amir Ali on aizunnissa v.
Kariunnissa, ILR (1895) 23 Cal 130, where such a marriage was held void.
4 The Fatwa-i-Alamgiri clearly lays down that children of such marriages are valid. See Amir Ali, Mohammedan Law, II,
329-30.
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5 Baillie, Digest of Moohummudan Law, II, 121.

6 Some authorities put the period as one year. See Baillie, Digest of Moohummudan Law, II, 121.
1 Md. Hayat v. Md. Nawaz, AIR 1935 Lah 622 .
2 Hedaya, I, 110.
3 The Radd-ul-Muktar, II, 519.
1 Amir Ali, Mohammedan Law, II, 367.
2 The Radd-ul-Muktar, II, 519; the Sharaya-ul-Islam, 278.
3 Amir Ali, Mohammedan Law, II, 368.
4 Faizee, 105.
5 Jamait Ali v. Mir Mohammed, (1916) PR 371, wherein it was held that the violation of this rule did not render the
marriage void.
6 Gunnasonudari v. Nalla thambi, AIR 1945 Mad 516 [LNIND 1945 MAD 168]: (1945) 2 MLJ 80 [LNIND 1945 MAD 168]:
47 Cr LJ 221.
1 Jude v. Jude, AIR 1949 Cal 563 : (1945) 2 Cal 462.
2 Saldanha v. Saldanha, AIR 1930 Bom 105 : ILR 54 Bom 288.
1 Alhaji Mohammed v. Knott, (1969) 1 QB 100 .
1 Manu Smriti, IX, 94; Gautama Dharmasutra, XVIII, 21.
2 Manu Smriti, IX, 90.
3 Law Commission, 59th Report, para 3.21.
4 Manisha Singh v. State Government of NCT, AIR 2006 Del 37 [LNIND 2005 DEL 758]: 2006 (1) Chand Cr C 208: 2006
(1) DMC 1 : 2007 (1) Marri LJ 448(DB).
1 Section 13(2)(iv) of the Hindu Marriage Act, 1955.
2 See Mulla, Principles of Mohamedan Law, (17th Edn.), 268-70.
3 Mulla, Principles of Mohamedan Law, (17th Edn.), 268-70. See also Paras Diwan’s, work Law of Parental Control,
Guardianship Custody of Minor Children, (Ist Edn.), 507-11.
4 Section 2(vii), Dissolution of Muslim Marriage Act, 1939.
5 Harendra Nath v. Suprora Burman, AIR 1989 Cal 120 [LNIND 1988 CAL 211]: 93 CWN 102: (1989) 1 HLR 54 (Cal).
6 Section 18 of the Indian Christian Marriage Act, 1872.
1 Section 18(b) of the Indian Christian Marriage Act, 1872.
2 Section 60(1) of the Indian Christian Marriage Act, 1872.
3 See the Indian Divorce Act, 1869, which applies to Christian marriage, does not contain any provision rendering such
marriage void or voidable.
4 Section 3.
5 The operative part of section 3 runs “no marriage shall be valid”.
6 Section 2(a).
7 Section 2(c).
8 See ram Saran v. Sital, AIR 1939 All 340 : 182 IC 568.
9 Section 4.
10 Section 5.
1 Section 6.
2 Section 6(2).
3 Proviso to section 6.
4 Section 3 of the Act of 2006.
5 Section 4 of the Act of 2006.
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6 Section 5 of the Act of 2006.

1 Section 12(a) of the Child Marriage Restraint Act, 1929.
2 Section 12(5).
3 Kokkula Suresh v. State of andhra Pradesh, AIR 2009 AP 52 [LNIND 2008 AP 827]: 2009 (76) All Ind Cas 947: 2009
(3) CCC 716 : 2009 (3) Cur CC 18.
4 AIR 2012 Mad 62 [LNIND 2011 MAD 4101]: 2011 (3) DMC 566: 2012 Mat LR 392.
1 Re Park, (1954), p. 112 (Per Hodson L.J.).
2 Hill v. Hill, (1959) 1 All ER 491 : (1959) 1 WLR 127; Ficher v. Adams, (1949) 38 NW (2nd) 337.
3 Section 1(1)(a)(iv) of the Matrimonial Causes Act, 1965.
1 (1911) ILR 38 Cal 700.
2 Amrithamal v. Vallimayi Ammal, (1942) Mad 807: (1942) 2 MLJ 292 [LNIND 1942 MAD 168]: AIR 1942 Mad 693
[LNIND 1942 MAD 168] (716).
3 Bhagwati Saran Singh v. Parameshwari Nandan Singh, ILR (1942) All 518 : AIR 1942 All 267 .
4 Placitum, 10.
5 Mitakshara, II, 4.
6 Manu Smriti, IX, 203.
7 1953 ALJ 22 . See the following passage:—

“The ancient law of Hindus, as was very natural, reflected the prevalent social phenomena of the day, and our
sages, in the age of codification, systemized that law. Naturally they also aimed to knit the phenomena which,
though unjust and disapprovable, were not infrequent occurrence and which also reflected the sentiments of the
age, in an organized scheme of things. In Hindu scheme of things the institution of sonship has a very unique and
prominent place. To respect the sentiments of the community, and to provide for social requirements of the age,
our sages propounded a system in which person may be the son of his father but his mother may not be the wife
of his father. As we have seen above, the outstanding feature of Hindu jurisprudence with respect to the institution
of sonship is that on the one hand the issues born in a lawful wedlock were given the highest place, but at the
same time many a son born outside the lawful wedlock were not considered as illegitimate. In hierarchy of sons
they were assigned a definite place and in the absence of aurasa son a few of them were as good as the aurasa
son and, as a matter of fact, their role came into play in the absence of the aurasa son.”
1 Section 5(2).
2 Section 4.
3 Section 19(3).
4 Usha Abraham v. Abraham Jacob, AIR 1988 Ker 96 [LNIND 1987 KER 401]: (1987) 2 Ker LT 582 [LNIND 1987 KER
401]: (1988) 1 HLR 12.
5 Mouji Lal v. Chandrabati Kumari, (1911) 38 IA 122 : 38 Cal 700.
6 Tiruamogal v. Ramswami,(1863) 1 MHCR 214.
1 Munishwar Datt Vashisht v. Indra Kumari, AIR 1963 Punj 449 : ILR (1963) 2 Punj 263: 65 Pun LR 1029; Kartik Chand v.
Manjurani, AIR 1973 Cal 545 [LNIND 1973 CAL 179]: 78 CWN 36; Pranab v. Krishna, AIR 1975 Cal 109 [LNIND 1974
CAL 45]: 78 Cal WN 448.
2 The decision of the Calcutta High Court in Anima Roy v. Probodh Mohan roy, AIR 1969 Cal 304 [LNIND 1968 CAL
175]: 73 CWN 100 which takes this view is not, it is submitted correct.
3 Kartik Chand v. Manjurani, AIR 1973 Cal 545 [LNIND 1973 CAL 179]: 78 CWN 36; Pranab v. Krishna, AIR 1975 Cal
109 [LNIND 1974 CAL 45]: 78 Cal WN 448.
4 Pranab v. Krishna, AIR 1975 Cal 109 [LNIND 1974 CAL 45]: 78 Cal WN 448.
5 Section 4(b), Special Marriage Act, 1954. This is section 5(ii) of the Hindu Marriage Act, 1955. The wordings are
identical.
1 Now the whole of the provision has been re-enacted in the Matrimonial Causes Act, 1973, section 12.
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2 Word ‘epilepsy’ has now been omitted from Hindu Marriage Act, 1955, as well as from Special Marriage Act, 1956 by
virtue of sections 2 and 3 respectively of the Marriage Laws (Amendment) Act, 1999 (39 of 1999).
3 Ormrod, J. in Bennett v. Bennett, (1969) 1 All ER 539, very pertinently observed that with the exception of the word
“epilepsy” all terminology is of legal origin, and not of medical and therefore in operating this section, it is for the lawyers
first to define to doctors what they mean by various phrases which occur in it, if they are to obtain from the doctors
useful and helpful answers. It would not be reasonable to have doctor to say what the lawyer means by unsoundness of
mind or any of the other matters in the section.
1 See Whysall v. Whysall, (1959) 3 All ER 389 : (1959) 3 WLR 592.
2 See Park v. Park, (1953) 2 All ER 1411 : 1953 (3) WLR 1012.
3 Explanation(a) to section 27(1) of the Special Marriage Act, 1954 and Explanation(a) to clause (iii) of section 13(1) of
the Hindu Marriage Act, 1955.
4 Explanation(b) to section 27(1) of the Special Marriage Act, 1954 and Explanation(a) to section 13(1)(iii) of the Hindu
Marriage Act, 1955.
5 Section 8(1)(b).
1 See Bennett v. Bennett, (1969) 1 All ER 539 : (1969) 1 WLR 430 : 113 SJ 284, per Ormord, J.
2 AIR 1998 Mad 198 [LNIND 1998 MAD 424]: 1998 (2) Mad LJ 490: 1999 (2) Marri LJ 475.
3 AIR 1984 AP 225 [LNIND 1983 AP 251] (229): 1984 (1) APLJ (HC) 32: (1984) 1 Andh LT 127.
4 Hedaya, 128.
5 See Amir Ali, Mohammedan Law, II, 534; Hedaya, 128.
1 Baillie, Digest of Moohummudan Law, II, 59.
2 Baillie, Digest of Moohummudan Law, II, 60.
3 Mustafa v. Khursida, AIR 2006 Raj 31 : 2006 AIHC 382: 2006 (1) Hindu LR 673 : 2006 (2) Marri LJ 133.
4 Section 32(b).
* The word “India” omitted by Act 51 of 2001 (w.e.f. 3-10-2001).
5 Joykutty Mathew v. Valsamma Kuruvilla, AIR 1990 Ker 262 [LNIND 1989 KER 394]: (1989) 2 Ker LT 742; V.C.
Thomas v. Ann Thomas @ Kunjumol, AIR 1999 Ker 1 : 1999 AIHC 363: 1999 (2) DMC 636 : 1998 (2) Ker LJ 150;
George Joseph v. Alphonsa @ Lovely Mathew, AIR 1999 Ker 25 [LNIND 1998 KER 390]: (1999) 1 Civ LJ 786: 1999
(2) DMC 238 : ILR (1999) 1 Ker 567 : 1998 (2) Ker LT 1036.
1 Special Marriage Act, 1954, Chapter II;Indian Christian Marriage Act, 1872, Parts I to VI.
2 See Hindu Marriage Act, 1955, section 7;Special Marriage Act, 1954, section 12;Indian Christian Marriage Act, 1872,
Parts III and IV;Parsi Marriage and Divorce Act, 1936, section 3.
3 Just as in Punjab customary law in Kerawa and Chadar andazi marriage no formal ceremonies are required.
4 Bhaurao Shankar v. State of Maharashtra, (1965) 2 SCR 837 [LNIND 1965 SC 20]: (1965) 2 Cr LJ 544 : AIR 1965 SC
1564 [LNIND 1965 SC 20]; Kanwal Ram v. Himachal Pradesh administration, AIR 1966 SC 614 [LNIND 1965 SC
198]: (1966) 1 SCWR 64: (1966) 1 SCJ 210.
5 Section 7 runs:
(1) Hindu marriage may be solemnized in accordance with customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include saptapadi (that is taking of seven steps by the bridegroom and the bride
jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
6 Neelavva Somnath Tarapur v. Divisional Controller, Karnataka State road transport Corporation, Bijapur, AIR 2002
Kant 347 [LNIND 2002 KANT 251]: 2002 AIR Kant HCR 1711: 2002 (3) CCC 230 : 2003 (1) Hindu LR 177 : 2002 (5)
Kant LJ 67.
7 Ralathi v. Selliah, (1966) 2 MLJ 40 [LNIND 1966 MAD 311]. The case has been discussed by G. Sitarama Sastry, in
(1967) I Law Review 86-87.
8 Under the Special Marriage Act, 1954.
9 See Chapter IV of the Special Marriage Act, 1954.
1 See the Uttarcharita, IV.
1 This is based on the following legend: The bride is given to man by three Gods, viz., Soma, Gandharva and Agni, who
were her first three husbands. The mantra that is recited before the nuptials is, “Soma had acquired thee as his wife;
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after him Gandharva acquired thee, thy third husband was Agni; and the fourth is the human husband. Soma had given
thee to Gandharva, Gandharva gave thee to Agni. OH ! wife, Agni has, besides thee, given wealth and children to me.”
2 Popularly known as pheras.
1 That is to say, music, song and rhythm.
2 That is to say, poetry and verse.
1 The Manu Smriti, VIII, 227.
2 Yama see Colebrooke’s Digest, IV, 175; Vashishtha—see Colerooke’s Digest, IV, 174; Narada Samriti, XII, 3.
3 Medhatithi quoted in Nirnaya Sindhu, III,1; see for the texts; Colebrooke’s Digest, IV. Kulluka Bhatt says that wifehood
is not constituted without saptpadi and the nuptial texts.
4 Brindaban v. Chandra, 12 Cal 140; Bulli Appana v. Subamal, AIR 1938 Rang 111 : 176 IC 569; Devani v. Chindavaram,
AIR 1954 Mad 657 [LNIND 1953 MAD 156]: (1955) 1 MLJ 120: 67 MLW 965; Kunta Devi v. Sri ram, AIR 1963 Punj
235 : 65 Pun LR 145; Venkata Subbarayudu Chetty v. Tanguturu Venkatiah Shresti, AIR 1968 AP 107 [LNIND 1966
AP 182]: 1968 Cr LJ 440: 1968 Mad LJ (Cri) 73.
5 This ceremony consists of two parts, one, in which the bridegroom shows the bride the polar star, the emblem of
stability and exhorts her to be stable in her husband’s family. The other part is the one in which the husband takes a
part of meal and the wife takes the remainder. See Gurudas Banerji Hindu Law of Marriage and Stridhan, (4th Edn.),
97-98.
1 The authorities of Hindu law like Colebrooke (Asiatic Researches, Vol. VII, 303). Mac Naughten (Principles of Hindu
Law, 61) Strange (Elements of Hindu Law, 37) take this view.
2 Devani v. Chindavaram, AIR 1954 Mad 657 [LNIND 1953 MAD 156]: (1955) 1 MLJ 120: 67 MLW 965.
3 Bai Appibai v. Khimji Cooverji, ILR (1936) 60 Bom 455 : AIR 1936 Bom 138 : 38 Bom LR 77.
4 AIR 1923 Rang 202 : ILR 1 Rang 129.
5 Shanta Devi v. Ramlal Agarwal, AIR 1998 AP 286 [LNIND 1998 AP 66]: (1998) 2 DMC 199: 1998 (3) Civ LJ 20.
6 Authikesavalu v. Ramanujaam, ILR (1909) 32 Mad 512 : 3 IC 541; Kameswara Sastri v. Viracharlu, ILR (1911) 34 Mad
422 : 20 Mad LJ 855. According to the Vyavahara Mayukha, IV, 5, 12-14, the performance of homan may be done
through a Brahman.
7 Mayne, Hindu Law and Usage, (11th Edn.), 161.
8 Mulla, Hindu Law, (13th Edn.), Para 437.
9 The only case which takes this view is appibai v. Khimji, AIR 1936 Bom 138 : 66 Bom 455.
1 See Paras Diwan’s, work Modern Hindu Law—Codified and Uncodified, (11th Edn.), 66-68.
2 See Hindu Widows’ Remarriage Act, 1856. Before the commencement of this statute, on account of the notion that a
Hindu marriage is a union for all lives to come, a widow was not permitted to remarry, since even on becoming widow
she continued to be the wife of her deceased husband.
3 Hindu Marriage Act, 1955, sections 13 and 13B.
4 The marginal note to section 7 runs, “Ceremonies of Hindu marriage.” It may be recalled that the Hindu Code Bill called
Hindu Marriage as a “sacramental marriage”, see Part II, Chapter I.
5 See the Asvalayana Grihyasutra, 1, 7, 3-22; Apastamba Grihyasutra, IV, V, VI, VII.
6 authikesavalu v. Ramanujaam, ILR (1909) 32 Mad 512 : 3 IC 541; Muthusami Mudaliar v. Masilmani Mudaliar, ILR
(1910) 33 Mad 342 : 5 Ind Cas 42: 20 Mad LJ 49.
7 Some of the customary ceremonies and rites may be noted here. Among the Santhals the only ceremony necessary for
solemnization of a marriage is the smearing of vermillion by a santhal man on the forehead of the santhal bride: Dhama
v. E., AIR 1943 Pat 109 : 43 Cr LJ 913: 203 IC 163; Layya Charan v. Dhkhee, (1850) 5 Cal 692 . Among the Nayahans
in the south India, the only ceremony necessary for the solemnization of the marriage is, tying of a nadu veeta thali in
the neck of the bride: tirumalai Naicker v. Ethirajammah, (1946) 1 MLJ 438 [LNIND 1946 MAD 80]: AIR 1946 Mad 466 .
Among the Jati Vaishavavas the only necessary ceremony is the exchange of garlands, between the bride and the
bridegroom, called Kanti badal: Bonodeberharry v. Shashi Bhushan, (1919) 24 CWN 968.
8 Section 7.
9 Surjit Kaur v. Garja Singh, AIR 1994 SC 135 : (1994) 1 SCC 307: (1993) II DMC 443.
1 Nagorao B. More v. Premalabai, AIR 2009 (NOC) 1634 (Bom): 2009 (2) AIR Bom R 689.
2 The Arya Marriage Validation Act, 1937.
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3 The Anand Marriage Act, 1909.

4 Devani v. Chindavaram, AIR 1954 Mad 657 [LNIND 1953 MAD 156]: (1955) 1 MLJ 120: 67 MLW 965; rajathi v. Selliah,
(1966) 2 MLJ 40 [LNIND 1966 MAD 311]. The same view was expressed by the Calcutta High Court in rabindranath v.
State of West Bengal, AIR 1969 Cal 55 [LNIND 1968 CAL 44]: 1969 Cr LJ 164.
5 The Madras Legislature amended the Hindu Marriage Act, 1955 by inserting a new section 7A which validates such
marriages. The new provision came into effect from January 17, 1968 and it applies only to the marriages performed in
State of Tamil Nadu.
6 Raghuvir Kumar v. Shanmughavadivu, AIR 1971 Mad 330 [LNIND 1962 MAD 247]: (1970) 2 Mad LJ 193: ILR (1970) 1
Mad 104 . Sub-section (1)(a) of section 7A stipulates that a mere declaration by the parties that they take each other as
husband and wife is enough for the solemnization of marriage.
1 Bhaurao v. State of Maharashtra, (1965) 2 SCR 837 [LNIND 1965 SC 20]: (1965) 2 Cr LJ 544 : AIR 1965 SC 1564
[LNIND 1965 SC 20]; Kanwal Ram v. State of Himachal Pradesh, AIR 1966 SC 614 [LNIND 1965 SC 198]: (1966) 1
SCR 539 [LNIND 1965 SC 198]: 1966 (1) SCJ 210 : 1966 Cr LJ 472. See a very interesting and learned comment on
the former case by M.B. Majumdar in (1966) 68 Bom LR (J) 57.
2 A.N. Mukerjee (Dr.) v. State of Uttar Pradesh, AIR 1969 All 489 [LNIND 1968 ALL 2]: 1969 Cr LJ 1203.
3 Balwinder Kaur v. Gurmukh Singh, AIR 2007 P&H 74 : 2007 (56) All Ind Cas 466: 2007 (2) CCC 587 : 2007 (2) Hindu
LR 203 : 2007 (2) Punj LR 22.
4 Critique of Modern Hindu Law, 300. However, Derrett has said this in a different context—a girl who intended to marry
is duped into a masquerade ceremony and finally is told that she was not the wife. In this context, Derrett says that the
intention of the parties to be married should be conclusive.
1 In Punjab, under customary law in the kerava and chadar andazi marriages there are no ceremonies, intention to live
together as husband and wife followed by actually so living is enough to constitute it a valid marriage and confer the
status of husband and wife on the parties; Sohan Singh v. Kabla Singh, AIR 1929 Lah 706 ; Charan Singh v. Gurdial
Singh, AIR 1961 Punj 301 (FB). See an interesting article by M.L. Jain in AIR 1961 Jour 84, where the author comes to
the conclusion that under the Hindu Marriage Act no specific ceremonies are required. This article has been replied by
K.S. Mathur in AIR 1962 Jour 27 . The author says (it is submitted rightly) that under the Act a marriage must be
performed either by the shastric or customary rites and ceremonies.
2 Darbara Singh v. Jaswant Kaur, AIR 2014 P&H 100 : 2014 (2) CCC 394: 2014 (2) DMC 630.
3 Inderu v. Ramaswamy,(1869) 13 MIA 141; Maujilal v. Chandravati, 38 IA 122; a.L.V.r.S.t. Veerappa Chettiar v. S.
Michael, AIR 1963 SC 933 [LNIND 1962 SC 377]: (1963) 2 SCA 305: (1963) Supp 2 SCR 244.
4 Chandu Lal v. Khalilar rahman, AIR 1943 Cal 76 : ILR (1949) 2 Cal 299; Sridhar Dey v. Kalpana Dey, AIR 1987 Cal 213
[LNIND 1986 CAL 341]: (1988) 1 HLR 562: (1987) 2 DMC 442 (Cal).
5 Bhaurao Shankar Lakhandi v. State of Maharashtra, AIR 1965 SC 1564 [LNIND 1965 SC 20]: (1965) 2 Cr LJ 544:
1965 MPLJ 873 [LNIND 1965 SC 20]: 1966 (1) SCJ 298 [LNIND 1965 SC 20]: (1965) 2 SCR 837 [LNIND 1965 SC 20];
Surjit Kaur v. Garja Singh, AIR 1994 SC 135 : (1994) 1 SCC 407: 1993 AIR SCW 3768.
6 Anandi v. Onkar, AIR 1960 Raj 251 [LNIND 1959 RAJ 71]: (1960) 10 Raj 160.
7 Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 [LNIND 1952 SC 33]: 1952 SCR 825 [LNIND 1952 SC 33]: 1952
SCJ 331 [LNIND 1952 SC 33]; Sitabai v. Vittalbai, AIR 1959 Bom 508 [LNIND 1957 BOM 120]: 1958 Nag LJ 10
[LNIND 1957 BOM 120]; rewa v. Galharsingh Kanhaisingh, AIR 1961 MP 164 : 1960 MPLJ 1389: ILR 1960 MP 490;
Kastoori v. Chiranjit, AIR 1960 All 446 [LNIND 1959 ALL 197]; Mahila Mathura Bai v. Ram Wati, AIR 1990 MP 276
[LNIND 1989 MP 245]; Balasubramanyam v. Suruttayan, AIR 1992 SC 756 : 1992 AIR SCW 441; Nirmala v.
Rukminibai, AIR 1994 Kant 247 [LNIND 1994 KANT 27]: ILR 1994 Kant 1078 [LNIND 1994 KANT 27]: 1995 (21) Marri
LJ 17; S.P.S. Balasubramanyam v. Suruttayan, AIR 1994 SC 133 : (1994) 1 SCC 460: 1993 AIR SCW 3765.
8 Karedla Parthasaradhi v. Gangula ramanamma, AIR 2015 SC 891 [LNIND 2014 SC 992].
1 Virendra Singh Pal v. Kashibai, AIR 1998 MP 324 [LNIND 1998 MP 115]: 1998 (4) Civ LJ 718: 1998 (4) CCC 602 :
1998 (2) MPLJ 203.
2 Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 [LNIND 1952 SC 33]: 1952 SCR 825 [LNIND 1952 SC 33]: 1952
SCJ 331 [LNIND 1952 SC 33]; Pannama v. Kamara,(1972) I MLJ 364(presumption was rebutted); Guru Charan Behara
v. Adikanda Behara, AIR 1972 Ori 38 [LNIND 1971 ORI 36]: 37 Cut LT 498; Linga v. Ajodhya, AIR 1974 Ori 107
[LNIND 1973 ORI 90]: (1973) 2 Cut WR 1108; Badri Prasad v. Dy. Director, Consolidation, AIR 1978 SC 1557 [LNIND
1978 SC 178]: (1978) 3 SCC 527 [LNIND 1978 SC 178]: 1978 All LJ 1010.
3 Phankari v. State of Jammu and Kashmir, AIR 1965 J&K 105 : 1965 Kash LJ 125: (1965) 2 Cr LJ 646.
4 Inderu v. Ramaswamy,(1869) 13 MIA 141.
5 Kunta Devi v. Siri ram, AIR 1963 Punj 235 : 65 Pun LR 145; Surjit Kaur v. Garja Singh, AIR 1994 SC 135 : (1994) 1
SCC 407: 1993 AIR SCW 3768.
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6 S.V. Gupte Hindu Law of Marriage, (1976), 154.

7 Arya Marriage Validation Act, 1937; Anand Marriage Act, 1909 (for Sikh marriages).
8 Rajaihi v. Seliah, (1966) 2 MLJ 40 [LNIND 1966 MAD 311].
9 See Sakuntala v. Nilkantha, 1973 Mah LR 310, where marriage between Hindus by Buddhist rites was held void.
1 Critique of Modern Hindu Law, 300 where Derrett suggests that intention to live as husband and wife may be enough to
confer the status.
2 Dolgonti (in re:), AIR 1968 AP 117 [LNIND 1966 AP 190]: (1967) 1 Andh WR 284: 1967 Mad LJ (Cri) 247: (1967) 1
Andh LT 359 [LNIND 1966 AP 190]: 1968 Cr LJ 447.
3 See section 5(v) of the Hindu Marriage Act, 1955.
4 Margaret Palai v. Savitri Palai, AIR 2010 Ori 45 [LNIND 2009 ORI 116]: 2010 (2) Civ LJ 108: 2010 (4) CCC 837.
1 Nishana Mol v. Alappuzha Municipality, AIR 2009 Ker 203 [LNIND 2009 KER 475]: 2009 (3) Ker LT 251 [LNIND 2009
KER 475].
2 Sanjai v. Eveline Jabe, AIR 1993 MP 54 [LNIND 1992 MP 49]: 1993 Mar LJ 245: 1992 MP RCJ 367; Shaji v. Gopinath,
AIR 1995 Mad 161 [LNIND 1995 MAD 107]: 1995 (2) DMC 486: 1995 (2) Mad LW 95.
3 Gullipilli Sowria Raj v. Bandaru Pawani, (2009) 1 SCC 714 [LNIND 2008 SC 2369]: AIR 2009 SC 1085 [LNIND 2008
SC 2369]: (2008) 17 SCR 35: (2008) 16 SCALE 109 [LNIND 2008 SC 2369].
4 Seema v. Ashwani Kumar, (2006) 2 SCC 578 : 2006 (3) SCJ 101: 2006 (3) SRJ 493: (2006) 2 SCALE 333 : 2006 (2)
Supreme 66: AIR 2006 SC 1158 .
5 It appears that when the Law Commission considered (59th Report), and the select Committee and Parliament
deliberated on the matter, nobody cared to have a look at the Rau Committee’s Report and the draft Hindu Code Bill.
The Hindu Code Bill contained two provisions relating to ceremonies of marriage. For marriages which were called
“sacramental marriages”, it was laid down: “A sacramental marriage shall not be complete and binding on the parties
unless
1 From section 5 to section 14. In all, the Act has 51 sections.
2 Under section 3 of the Special Marriage Act, 1954, the State Government have power to appoint marriage officers by a
notification issued in the Official Gazette. A similar provision could be enacted in the Hindu Marriage Act, 1955.
3 Under the Special Marriage Act, 1954, a notice of 30 days is required.
4 Under the Special Marriage Act, 1954, this may take considerable time.
1 Rassool Bi v. Jaitoon Bi, 1976 MPLJ 655.
2 Amir Ali, Mohammedan Law, II, 290.
3 Baillie, Digest of Moohummudan Law, 4, 5, 10, 14.
4 The Hedaya, 26. For the procedure adopted for performing Muslim marriages in India, see Ghulam Kubra v.
Mohammed Shafi, AIR 1940 Pesh 2 : 188 IC 308, per Mir Ahmed, J. See also Amir Ali, Mohammedan Law, II, 555,
Appendix I, where he describes how marriages used to be celebrated in the past.
5 The Sharaya-ul-Islam, 262.
1 See Tyabji, Muslim Law, (4th Edn.), 49. See also Fathama Bi v. Md. Mohideen, (1971) 1 MLJ 451.
2 Amir Ali, Mohammedan Law, II, 887.
1 Sanwan v. Buddho, 39 IC 318.
2 The Fatwa-i-Alamgiri, I, 405; the Hedaya, 95.
3 Rahima Khatoon v. Saburjanessa, AIR 1996 Gau 33 [LNIND 1995 GAU 37]: 1996 (1) Civ LJ 274: 1995 (3) Gau LR
201.
4 Joga Bibi v. M. Seikh, ILR 63 Cal 415.
5 Ghulam Kubra (Mst.) v. Md. Shafi, AIR 1940 Pesh 2 : 188 IC 302; Zaman v. Naiwa Khatun, PLD 1952 Pesh 47.
1 Bashir-un-nissa v. Bunyad ali, AIR 1919 All 206 : 50 IC 677.
2 Baillie, Digest of Moohummudan Law, I, 7-8; see also Amir Ali, Mohammedan Law, II, 315.
3 Amir Ali, Mohammedan Law, II, 313.
4 Abdul Razaak v. Aga Mohammed, 19 Bom LR 164: (1892) 21 IA 56.
 Page 87 of 89
Chapter II MARRIAGE

5 Abdul Razaak v. Aga Mohammed, 19 Bom LR 164: (1892) 21 IA 56 . See also Fateh Mohammed v. Abdul, ILR (1931)
12 Lah 396 .
6 Ghazanfar ali Khan v. Kaniz Fatima, (1910) 37 IA 105 : ILR 32 All 345 (PC).
7 AIR 2010 SC 2933 [LNIND 2010 SC 754]: (2010) 9 SCC 209 [LNIND 2010 SC 754]: 2010 AIR SCW 4932; also see
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 [LNIND 2010 SC 969]: AIR 2010 SC (Supp) 29:
2010 AIR SCW 6497.
1 Irshad Ali v. Mt. Kariman, AIR 1917 PC 169 : 22 Cal WN 530: 20 Bom LR 790 (PC); Fathama Bibi v. Md. Mohideen,
(1971) 1 MLJ 451.
2 There is a long line of cases. Some may be noted. The oldest reported case seems to be rajah Hidayal v. Rai
Jan,(1884) 3 MIA 295, and the latest seems to be Mohd. Amin v. Vakil ahmed, AIR 1952 SC 358 [LNIND 1952 SC 55]:
1952 SCJ 539 [LNIND 1952 SC 55]: 1952 SCR 1133 [LNIND 1952 SC 55].
3 Mohd. Amin v. Vakil Ahmed, AIR 1952 SC 358 [LNIND 1952 SC 55]: 1952 SCJ 539 [LNIND 1952 SC 55]: 1952 SCR
1133 [LNIND 1952 SC 55]; Syed Amanullah Hussain v. Rajamma, AIR 1977 AP 152 [LNIND 1976 AP 148]: (1976) 2
APLJ (HC) 323: (1977) 1 Andh WR 123: 1977 Mat LR 45.
4 Imambandi v. Mutsadi, (1918) 45 IA 73 : 45 Cal 787; Fathama Bi v. Md. Mohideen, (1971) 1 MLJ 451; rasool Bi v.
Jaitoon Bi, 1976 MPLJ 655.
5 Amir Ali, Mohammedan Law, II, 323.
1 Amir Ali, Mohammedan Law, II, 324.
2 See Tahir Mohmood Progressive Codification of Muslim Personal Law: Islamic law in Modern India, 85-86. Mahmood
advocates a Union law for registration of all Muslim marriages and divorces. Although he does not say it in so many
words, it seems, he means compulsory registration of marriages and divorces, otherwise registration has no meaning;
See Seema v. Ashwani Kumar, (2006) 2 SCC 578 : 2006 (3) SCJ 101: 2006 (3) SRJ 493: (2006) 2 SCALE 333 : 2006
(2) Supreme 66: AIR 2006 SC 1158 .
3 Section 4.
4 Section 5.
* The punishment of “transportation” has been omitted from Indian Penal Code (section 53) by Act 26 of 1955, w.e.f. 1-1-
1956, but such punishment has not yet been omitted from the Indian Christian Marriage Act, 1872.
2 Section 7.
3 Section 9.
4 Section 10.
1 Para 1 of section 60.
2 Para 2 of section 60.
3 Para 3 of section 60.
4 Section 11.
1 Section 66(b).
2 Proviso to section 12.
3 Section 13.
4 Section 14.
5 Section 15. If the District has more than one Registrar, then copy should be sent to the senior Registrar.
6 Section 16.
7 See sections 17 and 18.
1 Section 66.
2 Section 20.
4 Section 69.
5 Sections 67 and 68.
6 Section 23.
1 The form of certificate is laid down in Schedule II to the Act.
 Page 88 of 89
Chapter II MARRIAGE

2 Section 26.
3 Thomas Poynter Ecclesiastical Courts, (2nd Edn., 1824), 27.
4 Section 25.
5 Part IV of the Act.
6 Section 28.
1 Section 32.
2 Section 33.
1 Part V.
2 Schedule I.
3 Section 39.
4 Section 40.
1 Section 43.
2 Section 44.
3 Section 45.
4 Section 48.
5 Section 49.
6 Section 50.
1 Section 52.
2 Section 51.
3 Section 54.
4 Section 55.
1 Section 3.
2 Section 60.
1 Section 60(3).
1 Section 76.
1 Section 3(b) of the Parsi Marriage and Divorce Act, 1936.
2 Section 6 of the Parsi Marriage and Divorce Act, 1936.
3 Section 7.
4 Section 8.
5 Section 9.
2 Section 11.
3 Section 12.
4 Section 7.
5 Section 14 of the Parsi Marriage and Divorce Act, 1936.
1 Section 5 of the Special Marriage Act, 1954.
2 Section 6(1).
3 Section 6(2).
4 Section 6(3).
5 Section 7(1) of the Special Marriage Act, 1954.
6 Section 7(2).
1 Section 7(2).
2 Section 7(1).
 Page 89 of 89
Chapter II MARRIAGE

3 Section 7(2).
4 Section 9(1).
5 Section 10 of the Special Marriage Act, 1954 runs:
Where an objection is made under section 7 to a Marriage Officer (in the State of Jammu and Kashmir in respect of an
intended marriage in the State), and the Marriage Officer, after making such inquiry into the matter as he thinks fit,
entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such
statement respecting the matter as he thinks fit to the Central Government and the Central Government after making
such enquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to
the Marriage Officer who shall act in conformity with the decision of the Central Government.
6 Section 14.
1 Section 74.
4 Section 12 of the Special Marriage Act, 1954.
5 Section 13(1).
6 Section 13(2).
1 Section 47(1).
2 Section 47(2).
3 Chapter III.
4 Section 15.
1 Section 18.
2 Grace v. George, (1988) 2 Ker LJ 58 : (1988) 2 Ker LT 46 [LNIND 1988 KER 237]: (1989) II DMC 463: AIR 1989 Ker
234 [LNIND 1988 KER 237].
3 Section 16.
4 Section 18.
1 Section 17.
2 Section 18.
3 Section 24(2).
4 Proviso to section 24(2).
5 Proviso to section 18.
6 Sudersan Karir v. State, AIR 1988 Del 368 [LNIND 1987 DEL 378]: (1988) 24 Reports 89: (1988) 1 Cur CC 313: 1988
Marri LJ 150.

End of Document
 Chapter III THE DOWRY PROHIBITION ACT, 1961
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter III THE DOWRY PROHIBITION ACT, 1961

PART I PRELIMINARY

An Act to Prohibit the Giving or Taking of Dowry

The Dowry Prohibition Act, 1961 has been amended twice by the Dowry Prohibition (Amendment) Act, 1984 (63 of
1984) and by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986). Both the amendments were introduced to
give effect to some of the major recommendations of the Joint Parliamentary Committee on Dowry Prohibition.
Even though far reaching amendments have been made by the States in the Dowry Prohibition Act, 1961 during the
seventies, yet these did not succeed in combating the evil. As pointed out by the Committee on the Status of
Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its
perpetuation.

One of the recommendations made by the Joint Committee of the Houses for dealing with cruelty to married woman
by the husband or his relatives on the ground on non-receipt of dowry or insufficient dowry has already been given
effect to by the Criminal Law (Second Amendment) Act, 1983. This Act amended, inter alia, the Indian Penal Code,
1860 to include therein section 498A, a provision for punishment for cruelty to married woman and was aimed at
dealing with the problem of dowry suicides and dowry death.

On the recommendation of the Joint Committee the definition of “dowry” contained in section 2 of the 1961 Act has
been modified by omitting the expression “as consideration for the marriage” used therein on the ground that it is
well nigh impossible to prove that anything given were a consideration for the marriage for the obvious and simple
reason that the giver, i.e., the parents who are usually the victims would be reluctant and unwilling to set the law in
motion. It is hoped that the omission of the words “as consideration of marriage” would make the definition not only
wide but also workable, for, if these words are omitted, anything given, whether before or after or at the time of
marriage by any one may amount to dowry. In the result, the words in “connection with the marriage” replace the
words “as consideration for the marriage.”

Section 3 of the Dowry Prohibition Act relating to the offences of giving and taking of dowry has been amended to
make the punishment for offence more stringent. All presents given at the time of the marriage to the bride and
certain type of presents given at the time of marriage to the bridegroom have been excluded from the purview of the
dowry.

Section 4 of the Dowry Prohibition Act relating to penalty for demanding dowry has been amended to make the
punishment thereunder more stringent.

Section 6 of the Act has been amended to reduce the time limit within which dowry received in connection with
marriage of a woman by any other person should be restored to her from one year to three months. Likewise, the
punishment for failure to restore such dowry within the said time limit has been made more stringent. The court has
been empowered, in addition to awarding the punishment, to issue a direction requiring him to restore the property
to the woman within specified period. In case of non-compliance with the direction, the value of the property is
recoverable from such person as if it were a fine and the amount so recovered will be paid to the woman or, her
heirs, in case she is dead.

Daily, the demon of dowry is devouring lives of young girls, who marry with high hopes of having heavenly abode in
their husband’s house. In few cases, guilty are punished but it has no deterrent effect on mothers-in-law or sisters-
in-law who might have suffered similar cruelty/tyranny. This deep rooted social evil requires to be controlled not only
 Page 2 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

by effective implementation of the Dowry Prohibition Act, 1961 but also by the society. The society has to find out
ways and means of controlling and combating this menace of receipt and payment of dowry. Instead of controlling
payment and receipt of dowry in one or other form, it is increasing even in educated class. May be that, it is
increasing because of accumulation of unaccounted wealth with few and others having less means follow the same
out of compulsion.1

1. Short title, extent and commencement.—

(1) This Act may be called the Dowry Prohibition Act, 1961.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette,
appoint.

1. Commencement.—

The Dowry Prohibition Act, 19612 came into force on 1st July, 1961.

The Dowry Prohibition (Amendment) Act, 19843 came into force on 2nd October, 1985, and the Dowry Prohibition
(Amendment) Act, 19864 came into force on 8th September, 1986.
2. Retrospective operation of the Dowry Prohibition (Amendment) Acts, 1984 and 1986.—

An opinion has been expressed, it is submitted erroneously, that the provisions of the Amending Acts of 1984 and
1986 are retrospective in operation. For one thing, there is nothing in the Act to show that the retrospective effect is
given to the provisions. Secondly, penal provisions of a statute are seldom given retrospective effect.

2. Definition of ‘dowry’.—
In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or
indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any
other person,

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include
dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

[***]

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal
Code (45 of 1860).
1. Amendment.—

The Dowry Prohibition (Amendment) Act, 1984 (63 of 1984) has, on the recommendations of the Joint
Parliamentary Committee on the Dowry Prohibition Law, drastically amended this section. In the original Act “dowry”
was defined as “any property or valuable security given or agreed to be given as consideration of marriage.” Now
the substituted words for italicized portion are “in connection with the marriage”.

Explanation I of the section ran, “For the removal of doubts, it is hereby declared that any present made at the time
of the marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be
deemed to be dowry within the meaning of this section unless they are made in consideration for the marriage of
the said parties.” It was omitted by amending Act. However, it is submitted that omission of the Explanation does
not mean that presents cannot now be made to the bride or bridegroom individually or collectively. The fact of the
matter is that the provision relating to presents have been incorporated in sub-section (2) of section 3 with some
 Page 3 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

safeguards so that the unlimited quantum of presents does not become a source of abuse or misuse of the
provision.

The Joint Committee on Dowry Prohibition was of the opinion that Explanation I to section 2 took away the teeth of
the law and nullified the objective for which it was enacted as in terms of the said Explanation the presents in the
form of cash, ornaments, clothes and other articles were not to be deemed as dowry unless they were made “as
consideration for the marriage” for the obvious reason that the giver, i.e., parents or guardian of the bride in the
interest of the girl would never come forward to say that they had given as dowry. Further, the definition of dowry in
terms of “consideration for marriage” presented some difficulty in the interpretation of the words “shall not be
deemed to be dowry.” In Inder Sain v. State of Bihar1, and Kashi Prasad v. State of Bihar2, the Delhi and Patna
High Courts expressed the view that the demand for dowry would not constitute an offence under section 4 of the
Act unless it was established that the other party consented to pay it. On the other hand, in Daulat Man Singh Aher
v. C.R. Bansi3, the Bombay High Court took the view that mere demand constituted the offence whether the other
party accepted it or not. Now that the words “as consideration for marriage” have been omitted there would not be
any such difficulty, and mere demand (whether accepted or not) would constitute dowry offence.

The words “after the marriage” have been substituted with the words “at any time after the marriage” by the
Amending Act of 1986 to widen the scope.
2. State Amendments.—

Before the Dowry Prohibition (Amendment) Act, 1984, several State Legislatures have introduced certain changes
in section 2 of the Act. But it is interesting to note that none of these amendments made any change in the definition
of dowry.

Haryana.—The Haryana State amendment prescribes a limit of total expenses to be incurred on pre-marriage
ceremonies and on the marriage ceremonies including all arrangement therefor. The amount should not exceed Rs.
5000. The Haryana’s substituted section 2 runs as under:

In this Act unless the context otherwise requires—

(i) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to the marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to
any other person;

at or before or after the marriage as consideration for the marriage of the said parties, but does not include
dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I.—For the removal of doubts, it is hereby declared that any presents made at the time of the
marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not
be deemed to be dowry within the meaning of this section, unless they are made as consideration for the
marriage of the said parties.

Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian
Penal Code, 1860 (45 of 1860).
(ii) “marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on—
(a) Thakka, Sagai, Tikka, Shagan and Milni ceremonies;
(b) the gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-
parents and brothers or either party to a marriage, to either party to the marriage or the blood relations
thereof;
(c) illuminations, food and the arrangements for serving food to the members of the marriage party and
other expenses incidental thereto.

Explanation.—For the removal of doubts, it is hereby declared that any gift made to a person by a person
 Page 4 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

other than those specified in sub-clause (b), at the time of marriage shall not be deemed to be marriage
expenses.

Clause (i) virtually reproduce the definition of dowry in the Dowry Prohibition Act, 1961. So are the two
Explanations. So far as this clause is inconsistent with the provisions of new section 2 of the Central Act it will stand
repealed. Clause (ii) will stand.

The limit of Rs. 5000 has been laid down in section 3 of the Haryana Act.

Orissa.—The Orissa Amendment Act of 1976 reproduced section 2 of the Dowry Prohibition Act, 1961. The dowry
amendment laws of no other State amends the definition of dowry as given in section 2 of the Central Act of 1961.

Andhra Pradesh.—The Andhra Pradesh Legislature has passed a dowry law in 1958, but the definition of dowry is
basically the same as in the Central Act of 1961. Section 3(a) of the Andhra Pradesh Act defines dowry as under:

“Dowry” means any property or valuable security given or agreed to be given to one party to a marriage or to any other
person on behalf of such party by the other party to a marriage or by any other person on behalf of such other party either
at such marriage or before such marriage or after such marriage as consideration for any betrothal or marriage between the
said parties, but does not include dower or mahr in the case of persons to whom Muslim law applies.

Bihar.—The Bihar Legislature has also passed a dowry prohibition law in 1950 (Act of 1950). Section 2 of the Act
defines dowry as under:

In this Act unless there is anything repugnant in the subject or context, “dowry” means anything paid or delivered as
consideration of a contract of any betrothal or marriage and includes—
(i) tilak including chenka where the amount paid in cash or kind or both exceeds two hundred and fifty one rupees;

(ii) dahez including dwarpuja, milan or zadrah where the amount paid in cash or kind or both exceeds two hundred
and fifty-one rupees; but does not include—

(a) kanyanirakshan or mathjhaka, or

(b) stridhan or any other religious obligations enjoyed by the Hindu law or personal law applicable to the parties,
or

(c) voluntary marriage gifts, such as ornaments to a bride and dresses to a bridegroom made at the time or after
the solemnization of marriage.

Sind.—It is interesting to note that in pre-partition India, the province of Sind has a very comprehensive dowry
prohibition statute called Sind Deti Leti Act, 1939 (Act 21 of 1939).

Thus, one finds that in almost all the State statutes dowry was defined in terms of consideration for marriage. But in
some respects the State statutes contained more advanced law than the Central Act of 1961.

The word “dowry” in section 304B, IPC has to be understood as it is defined in section 2 of the Dowry Act. Thus,
there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the
third “at any time” after the marriage. The third occasion may appear to be unending period. But the crucial words
are “in connection with the marriage of the said parties”. Other payments which are customary paymentse.g. given
at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the
expression “dowry”. [See Satvir Singh v. State of Punjab, (2001) 8 SCC 633 [LNIND 2001 SC 2168]: 2002 SCC
(Cri) 48 [LNIND 2001 SC 2168].] As was observed in the said case “suicidal death” of a married woman within
seven years of her marriage is covered by the expression “death of a woman is caused........ or occurs otherwise
than under normal circumstances” as expressed in section 304B, IPC.1

The complaint nowhere mentioned that the accused demanded that the scooter should be given as consideration
for marriage. In the circumstances trial court rightly held that the demand for scooter subsequent to the marriage
was not in continuation of the first demand. The order of discharge of accused was upheld by the court.2
3. Origin of dowry.—
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Chapter III THE DOWRY PROHIBITION ACT, 1961

There is a widespread confusion and misconception that the present dowry system has its origin in the twin Hindu
marriage rites, viz., kanyadan and varadakshina. Even the Parliamentary Joint Committee has fallen into this trap
and perpetuated this myth. It opined, “The ancient marriage rites in the Vedic period are associated with kanyadan
or the ceremony or giving away the bride. According to the Hindu Shastras, the meritorious act of dan or ritual gift is
incomplete till the receiver is given dakshina. So when bride is given over to the bridegroom, he has to be given
something, in cash or kind which constitutes varadakshina. Thus, kanyadan become associated with varadakshina,
i.e., the cash or gift in kind given by the parents or guardian of the bride to the bridegroom.” It is submitted that
varadakshina has not been prevalent among all Hindus. It has prevailed only among certain castes of Brahmins.
Apart from the Brahmins, no other class of Hindus have the rite of varadakshina. Even among the Brahmins its non-
performance does not affect the validity of marriage. If saptapadi and vivaha-homa were performed marriage was
valid among all classes of Hindus. The Committee, it is submitted, erroneously equates varadakshina with dowry. It
says, “This varadakshina or dowry in those days included ornaments and clothes, which the parents of the bride
could afford and were given away as the property of the bride.” In the same breath, it adds, “This varadakshina was
offered out of affection and did not constitute any kind of compulsion or consideration for the marriage. It was a
voluntary present without any coercive overtones.” This is a correct formulation. But unfortunately the Committee’s
observations are contradictory, and thereby it has made more than one error. Varadakshina was essentially a
present made to the bridegroom and it was to be retained by him. Probably the source of this error are certain
observations made in Sudharam v. Thandaveshwara1. The Court observed that varadakshina was not to be kept by
bridegroom’s family, nor could he make a profit out of it. The court added, it was meant to serve as a nucleus of
married couple as a sort of matrimonial estate. Consequently, the court held that varadakshina was dowry. It is
submitted that this is total misunderstanding of the concept. To call varadakshina, and presents made to the
bridegroom or bride at or about marriage as dowry is to misunderstand not only the concept of varadakshina but
also the concept of stridhan. The reality is that major portion of stridhan is received by her at or about or
subsequently to marriage. The stridhan given to her at the time of marriage cannot and should not be called dowry.
It is submitted that this confusion between dowry and stridhan is causing lot of difficulties not merely in framing
legislation but also in its judicial interpretation. Dowry has always been, and conceptually and essentially that
property which is obtained under duress, coercion, or pressure. In other words, it is that property which is extorted
from the father or guardian of the bride by the bridegroom or his parents or other relations. Among Hindus it is that
property which is extracted by the bridegroom from his in-laws. Thus dowry has not to be equated with the presents
made to the bride and bridegroom. The distinction between the two is that dowry is essentially a property which is
extorted or extracted from the bride or her parents, while presents are those properties which are voluntarily and
willingly given. It is the Dowry Prohibition Act, 1961 which makes dowry stridhan, as it lays down that dowry will be
the property of the bride and it must be handed over or transferred to her2.

It is submitted thus dowry cannot be traced to k a nyadan and varadakshina. It must be emphasised that dowry is
essentially that property which is extorted, extracted or even snatched from the parents or guardians of the girl by
the bridegroom or his parents or other near relations. The extraction of dowry becomes possible among Hindus as
the father of a girl has moral and even legal duty (it is his dharma) to give his daughter in marriage. In discharge of
this duty he seeks a groom for his daughter, and among most Hindus it has become customary on the part of the
groom and groomwallas to extract and extort dowry on the specious plea that they would not accept the hand of the
girl in marriage unless their demands were met. Conceptually looked at, dowry is essentially property given by girl’s
parents (mainly her father) or guardian to the groom and groomwallas, and it has to be distinguished from
stridhan—saudayika stridhan, (particularly the yauktaka which constitutes of gifts received by the bride at the time
of marriage)1—which is her absolute property. The nearest to dowry that the Hindu sages have talked about and
which has been condemned by them, though tolerated, is sulka. The sulka is the money or property given by a
groom to the bride’s father or guardian in consideration of the latter agreeing to give the hand of his daughter to him
in marriage. This was in the asura form of marriage—an unapproved form of marriage—which was condemned by
all the sages. Manu defines it thus, “When the bridegroom receives the maiden after giving as much wealth as he
can afford to the kinsmen and to the bride herself, according to his own will, that is called the asura rite2.” It was
considered to be in the nature of a sale of bride and was condemned though tolerated3.

The extracted or extorted sum of money or other property obtained by a groom and his parents from the hapless,
helpless and at times mutely driven and drawn parents of the girl is in fact what dowry is. This dowry has never
been considered, nor was it meant to be, the property of the bride. It is the Dowry Prohibition Act which has made it
so4. It may also be emphasised that there should be no confusion between the gifts made to the bride at the time of
marriage—which are given to the bride all over the world, in most societies, by relations, friends and even
acquaintances. There is a prevailing confusion between stridhan (particularly yauktaka) and dowry which are two
distinct concepts. It is the latter which has to be condemned and prevented and prohibited. It is true that borderline
between the two is thin, but that does not mean that we should make the confusion worst confounded. It may be
 Page 6 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

emphasised that presents will be continued to be made to bride and bridegroom in all societies, so long as the
concept of private property exists. Much more, so long as parental love and affection exist. That this is so
recognized by the Dowry Prohibition Act, 1961 as well as by its two amendments. Some safeguards have been laid
down so that the dowry may not be extorted in the garb of presents, though time will show how effective these
safeguards would be.

But it is submitted that Yauktaka should not be confused with dowry.

4. Definition of dowry.—

The dictionary meaning of dowry is different from the one given in the Dowry Prohibition Act, 1961, Chamber’s
Dictionary gives it the following meaning: The property which a woman brings to her husband at marriage—
sometimes used for dower; sometimes a gift given to or for a wife at marriage. According to Webster Dictionary, it
means “money, goods or estate that a woman brings to her husband at marriage.” According to the Cambridge
Dictionary it is “property which a woman brings to her husband at marriage”. Under the Dowry Prohibition Act, 1961
the definition is very wide. Originally, under the Dowry Prohibition Act, 1961 it was defined as “any property or
valuable security given or agreed to be given either directly or indirectly (a) by any party to the marriage to the other
party to the marriage, or (b) by the parents of either party to the marriage or by any other person to either party to
the marriage or to any other person, at or before or after the marriage as consideration for the marriage of the said
parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat)
applies.” The amending Act retains the substantial part of the section. It has substituted the words “as consideration
for the marriage” with words “in connection with the marriage.” These words widen the meaning of dowry but retain
the essential character of dowry, i.e., it is not merely what the bridegroom and the groomwallas demand or take or
agree to take, but also the other way round, i.e., whatever is demanded or given or agreed to be given by the groom
or groomwallas to the bride and bridewallas. This aspect of the definition is often overlooked. The reason seems to
be that among the Hindus by and large dowry is demanded from or given by the bride’s side to the bridegroom or
his parents. But this does not mean that when the bride or bridewallas demand or take or agree to take some
money or property from the groom or his parents in connection with the marriage, they will not be guilty of the
offence of taking or demanding or agreeing to take dowry under the Dowry Prohibition Act, 1961. They will as much
be guilty of dowry offences as the other way round. Thus sulka in asura marriage will be dowry. This is the reason
why mahr has been excluded from the definition of dowry. Before Mohd. Ahmed Khan v. Shah Banu1, it was a
common misconception that mahr is given in consideration of marriage2.
5. Dowry Prohibition Act applies to all communities and to all persons residing in India.—

Since dowry is considered to be a wide spread social evil among Hindus, there is a misconception among some
that it applies only to Hindus and does not apply to non-Hindus. The fact of the matter is that it equally applies to
Muslims, Parsis, Christians, Jews or to any and every person who performs his marriage in India, and is found
guilty of any dowry offence.

The evil of dowry may be rampant among Hindus, but it does not mean that it does not exist among others. The
Joint Committee observed: “It is equally prevalent among the Muslims and the Christians. Among the Muslims in
many parts, there is a custom of giving cash to the bridegroom (popularly known as salami) after the nikah
ceremony and of giving clothes and jewellery to the bride by her parents who also bear other expenses of the
marriage. The Christians of Manglore follow their pre-conversion custom of kanyadan. It is reported that in a State
like Kerala with its high literacy rate and progressive outlook prevailing high rate of dowry makes marriages almost
impossible for many Christian girls belonging to large families and induce them to join nunneries or search
desperately for jobs in other States. There is, in fact, no difference these days in the pattern and motives of
conspicuous consumption and dowry, either religion-wise, region-wise or otherwise.” It is submitted that veracity of
this statement of the Committee need not be doubted, though the Report indicates that there seems to be a
prevailing confusion in the mind of the members of Committee between what is dowry and what are presents.
6. Dowry and wedding presents.—

Although Explanation I to section 2 of the Dowry Prohibition Act, 1961 has been omitted by the Dowry Prohibition
(Amendment) Act, 1984, it does not mean that wedding presents have been banned or their giving constitutes any
offence under the Act. The wedding presents given by parents, relatives, friends and acquaintances at or about the
time of marriage can still be made. The definition of dowry does not include them. The fact of the matter is that the
traditional gifts made at or about the time of marriage is an accepted practice not merely among the Hindus but also
among non-Hindus. They have been made by the Hindus from ancient times. Such presents have been prevalent
among other people also. Thus, in our submission, voluntary and affectionate presents are not caught in the
definition of dowry and giving and taking them does not constitute a dowry offence. Such presents are made to the
bridegroom and the bride and sometimes also to their parents, and other relations. The Joint Committee too was
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Chapter III THE DOWRY PROHIBITION ACT, 1961

fully aware of this, and therefore it said that it is neither desirable to put a complete ban on these presents nor does
it seem reasonable to prescribe a standard ceiling thereon for different sections of society for the reasons that it
would be neither possible to implement it nor would it be acceptable by the society. The Committee then observed:

Keeping in view the interest of the girl uppermost in mind and to ensure that the parents of the bride are also not put to any
undue hardships, the Committee are of the opinion that apart from the right of inheritance or succession or any other
property right to which the bride might be entitled to under any other law applicable to her or any other property rights under
the personal law applicable to her, presents made voluntarily, i.e., without compulsion or coercion, either directly or
indirectly, to her by her parents, relatives, friends, etc., at or before or after the marriage in form of cash, ornaments,
clothes, or other articles not exceeding in value twenty per cent. of the income, during the year preceding the date of
marriage, of the parents of the bride or other persons bearing the marriage expenses on the bride’s side or fifteen thousand
rupees whichever is less, should not be deemed dowry for the purpose of the section. The Committee feels that presents
made voluntarily to the bride by the bridegroom or parents or relatives of the bridegroom should not be treated as dowry for
the purpose of section.

Parliament has accepted the recommendations of the Committee in this regard, though has not agreed to any
upper limit of Rs. 15000 or 20 per cent. income for marriage expenses and presents. However, several State
statutes contain such an upper limit. Proviso to sub-section (2) lays down that where such presents are made by or
on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value
thereof is not excessive having regard to the financial status of the person by whom or on whose behalf, such
presents are given. The provision relating to wedding presents which has been deleted from Explanation I to
section 2 has been re-enacted in sub-section (2) of section 3 with some modifications. The sub-section speaks of
only those presents which are given to the bride or bridegroom at the time of the marriage. It does not cover within
its ambit presents made to the bride or bridegroom before or subsequently to marriage. It specifically relates to the
presents made to the bride and bridegroom at the time of marriage. Such presents should be made without any
demand having been made for the same. Obviously if these are demanded presents, they would constitute dowry.
7. Property or valuable security.—

It is submitted that the word ‘property’ in the section has been used in a very wide sense. It includes both movable
and immovable property. It will have the same meaning as was given to it by the Supreme Court in Dwarkadas
Shrinivas v. Sholapur Spinning and Weaving Co.1, i.e., it must be understood both in the corporeal sense as having
reference to those specific things that are susceptible of private appropriation and enjoyment as well as in its
juridical or legal sense as a bundle of rights which the owner can exercise under the municipal law with respect to
the use and enjoyment of these things to the exclusion of others2.

The term “valuable security” has been defined in section 30 of the Indian Penal Code, 1860 as under:

The words “valuable security” denote a document which is, or purport to be, a document whereby any legal right is created,
extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal
liability, or has not a certain legal right.

Thus, for instance, where a person A writes his name on the back of a bill of exchange, the effect of this
endorsement is to transfer the right to the bill to any person who may become the lawful holder of it. The
endorsement is a valuable security. The words “purports to be” signify that if for want of registration or any other
reason, a document is not admissible in evidence, if it purports to create, extend, transfer, etc., any legal right, the
document will be valuable security3. But a copy of a document is not a valuable security4.
8. In connection with the marriage of the said parties.—

The Committee observed that the omission of the words “as for consideration for the marriage” and their
substitution with “in connection with the marriage of the said parties” would make the definition of dowry very wide
and drastic, but nonetheless it felt that those words must be omitted, otherwise the Act would not serve the purpose
it is intended to. But, the question still arises: Would the omission of these words and their substitution with the new
ones solve the problem? It is submitted that in their wide perspective these words would include anything given or
agreed to be given or taken or agreed to be taken. In their still wider sense, these words may include presents
given at the time of marriage, if these presents are given “in connection with the marriage of the parties”—and most
presents are given in that connection, on that occasion. It is submitted that the words “in connection with” or “on the
occasion of” marriage have more or less the same connotation. However, what distinguishes dowry from presents
is this that the dowry consists of those “presents” which are extorted or extracted from the bride’s parents by
making a demand and by saying that marriage would take place only if those demands were fulfilled, thereby taking
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Chapter III THE DOWRY PROHIBITION ACT, 1961

advantage of the weaker position of the bridewallas who are obliged to give the girl in marriage as part of their
moral and spiritual obligation. This coercive element is an essential element in dowry, and it is this which
distinguishes dowry from presents. But this essential element is no where indicated in the definition of dowry as
given in the section, and thus it would be difficult to say as to what are presents (which if given to the bride would
constitute her stridhan) and what is dowry. It is submitted that in interpreting the word “dowry” and in distinguishing
the same from presents, the court will have to take recourse or import the coercive element in dowry which
distinguishes it from wedding presents, otherwise all presents may be treated as dowry or all dowry may be treated
as presents. In any case the task of proving what is dowry and what are wedding presents is not going to easy one.

In Rajinder Singh v. State of Punjab1, the Supreme Court has expounded that this statute must be given fair,
pragmatic and common sense interpretation. Any money, property or valuable security demanded by any persons
mentioned in section 2 at or before or at any time after marriage which is reasonably connected to death of married
woman would necessarily be in connection with or in relation to marriage unless facts of a given case clearly and
unequivocally point otherwise.

Further, under the present definition, agreement to give or take dowry also constitutes a dowry offence. Section 5 of
the Act lays down that an agreement of taking and giving dowry shall be void. When dowry was defined “as
consideration for the of marriage”, the provision of section 5 (in the original Act) has a significance, because an
agreement for consideration could be enforced. Now that the consideration part of the definition has been omitted
such an agreement will be without consideration and hence void. Thus there was no need to retain section 5.
9. Dowry given after marriage.—

If dowry is de-linked from marriage and its ambit is extended to include anything and everything given to a married
woman at any time, on any occasion, before the marriage or at any time after the marriage, then the definition
becomes very wide and unmanageable almost like an unruly horse. The Joint Committee observed that in the
continued relationship between the two families of the bride and bridegroom, gift giving characterises specific
occasions of visits, festivals and ceremonies like those associated with marriage, child-birth, initiation etc.,
particularly in the first few years of marriage. It added, it is a matter of general bride’s family is under compulsion
and heavy pressure. These subsequent expenses are often regarded as making up of the deficiencies in the initial
giving of dowry and cause severe hardship to the girl’s parents. In the first few years of marriage, in most cases, the
girl’s treatment in her husband’s home is linked with these gifts. In actual practice one comes across many cases of
cruelty even long after the marriage, arising chiefly out of the insatiable demands made on the parents of the girl.
Thus, according to the Committee, dowry is not one isolated payment initially made at the time of marriage but a
series of gifts given over a period of time before and after the marriage. There is no disputing the statement of the
Committee, but the real difficulty arises as how to make a distinction between genuine gifts and extorted gifts,
between what is voluntarily given and what is obtained by extortion or through some pressure. There is no doubt
that among the Hindus, there are many occasions when after-marriage gifts are made to the daughter, her husband
and children, and among most people such gifts are a life long relationship. It is also true that in some cases, even
after the marriage demands for dowry are continuously made on the father of the girl, and when they are not met,
cruelty is perpetrated on the wife to force her parents to meet the demand, and it is this which results in worst wife
battering, dowry-deaths and dowry suicides. But the difficulty remains of making a distinction between what is
voluntary and what is involuntary. How difficult it is to make the distinction comes into clear relief from the decision
of the Delhi High Court in Madan Lal v. Amar Nath1, wherein the court felt that property given by the bride’s father
subsequent to marriage with a view to saving the marriage from being rocked did not constitute dowry. According to
the Bombay High Court, property may pass hands subsequent to the marriage, even months and years after it,
merely to save the marriage from being broken or to otherwise keep the family of in-laws of the wife better disposed
of toward her, or to smoothen the course of matrimonial life, or to save the wife from harassment, humiliation or
taunts, on the ground that she did not bring enough at the time of the marriage is not dowry. It is submitted that the
decision is obviously wrong. In each of the instances cited by the court the property was virtually extorted from the
father of the wife.
10. Government Servants and dowry.—

The Civil Services (Conduct) Rules, 1964 specifically prohibit Government servants from giving and taking dowry or
abetting the giving and taking of dowry1. Rule 13A of the Central Civil Services (Conduct) Rules lays down:

No Government servant shall—

(i) give or take or abet the giving and taking of dowry, or
(ii) demand directly or indirectly, from the parents or guardians of a bride or bridegroom, as the case may be,
any dowry.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

Explanation.—For the purpose of this rule, dowry has the same meaning as in the Dowry Prohibition Act, 1961.

A similar provision has also been enacted in the Indian Services (Conduct) Rules, 19682.

3. Penalty for giving or taking dowry.—

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he
shall be punishable with imprisonment for a term which shall not be less than five years, and with fine
which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is
more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose
a sentence of imprisonment for a term of less than five years.
(2) Nothing in sub-section (1) shall apply to, or in relation to,—
(a) presents which are given at the time of a marriage to the bride (without any demand having been made
in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under
this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been
made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under
this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related
to the bride, such presents are of a customary nature and the value thereof is not excessive having
regard to the financial status of the person by whom, or on whose behalf, such presents are given.

1. Amendments.—

This section has been completely recast, though the headnote of the section is the same. The Amendments are: (a)
punishment for the offence of taking or giving dowry has been enhanced. Now a minimum punishment has been
laid down, and in addition of the punishment of imprisonment a fine has also been imposed. (b) Explanation I to
section 2 of the original Act exempted presents made to the bride and bridegroom at the time of marriage by
parents, relations and friends have been put in sub-section (2). This provision speaks of the presents made at the
time of marriage, and does not speak of presents made before or after marriage.
2. State Amendments.—

Before the coming into force of the Dowry Prohibition (Amendment) Act, 1984, several States have amended the
Dowry Prohibition Act, 1961. These amendments mostly enhance the punishment for the offence of taking or giving
dowry.

Punjab.—Under the original Act the prison term stipulated was six months and a fine of Rs. 5000. The Punjab Act
has enhanced the jail term to one year and fine to Rs. 10,000.

Himachal Pradesh.—The Himachal Pradesh has enhanced the jail term to one year. The maximum fine of Rs.
5000 is retained as such.

Haryana.—The Haryana Act made substantial amendments to section 3 of the Act. Section 3 as replaced by the
Haryana Act (38 of 1976) runs as under:

No person shall—

(a) give or take or abet the giving and taking of dowry;

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Chapter III THE DOWRY PROHIBITION ACT, 1961

(b) demand, directly or indirectly, from the parents or guardians of a bride or bridegroom, as the case may be,
any dowry;
(c) incur marriage expenses the aggregate value where of exceeds five thousand rupees;
(d) display any gifts made at or before the marriage in the form of cash, ornaments, clothes or other articles;
(e) take or carry in excess of—
(i) twenty-five members of the marriage party; and
(ii) eleven members of the band;
(f) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is
insufficient.

The Haryana Act retains the same penalty as in the original Act.

Bihar and Orissa.—The Bihar Act (Act 4 of 1976) retains the section 3 of the original Act. The same is the position
under the Orissa Act (Act 28 of 1961).

West Bengal.—The West Bengal Act (35 of 1975) provides minimum and maximum punishment. The minimum jail
sentence is three months which may extend to three years; the minimum fine is Rs. 2000 which may extend to Rs.
10,000.

Andhra Pradesh.—The Andhra Pradesh Act (1 of 1958) which is a pre-central Act makes all dowry offences
including the offence of giving and taking dowry as non-cognizable, bailable and compoundable. For the offence of
giving and taking dowry jail term which may not exceed six months or a fine which may not exceed Rs. 1000 is
provided.
3. Abetment.—

Section 107 of the Indian Penal Code, 1860 deals with “abetment” of a thing. It provides:

A person abets the doing of a thing who—

Firstly.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an Act or
illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of
that thing.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Section 108 of the Indian Penal Code, 1860 defines an abettor. It provides:

A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an
offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of
the abettor.
Explanation 1.—The abetment of the illegal omission of an act may amount to an offence although the abettor may not
himself be bound to do that act.
Explanation 2.—To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that
the effect requisite to constitute the offence should be caused.
Explanation 3.—It is not necessary that the person abetted should be capable by law of committing an offence, or that he
should have the same guilty knowledge as that of the abettor, or any guilty intention or knowledge.
Explanation 4.—The Abetment of an offence being an offence, the abetment of such an abetment is also an offence.
Explanation 5.—It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should
concert the offence with person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the
offence is committed.

Abetment of a dowry offence will include not merely instigation but also conspiracy and aiding in the commission of
offence. But a mere association with an offender without any instigation is not abetment.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

4. Punishment.—

The unique feature of not merely this section but also of the entire amending Act is that now a minimum and
maximum punishment is laid down. For the offence of giving or taking dowry the minimum punishment, after the
Amending Act of 1986, is five years, and in addition to the term of imprisonment a fine of Rs. 15,000 or the amount
of the value of such dowry, whichever is more is also to be imposed. However, for adequate and special reasons to
be recorded in writing in the judgment, the court may impose a sentence of imprisonment for a term of less than five
years.
5. listing of presents.—

In the commentary on the preceding section it has been submitted that though Explanation I to that section has
been omitted, the provision has been enacted in sub-section (2) of this section.

Although Parliament did not accept the recommendations of the Joint Committee as to ceiling of presents, it has left
the matter by saying that these should commensurate with the income of the giver. In this connection the
Committee also made a recommendation that the presents should be listed. Parliament has accepted that
recommendation. Clauses (a) and (b) of sub-section (2) provide for the listing of all presents made either to the
bride or bridegroom. The Committee observed that in order to ensure that the presents, in the form of cash,
ornaments, clothes or other articles made to the bride at or before or after marriage were exclusively for her benefit,
they should be listed and registered in her name. It was asserted that in order to make the position of the bride
more secure and to see that the presents were not misappropriated by her husband and her in-laws on one pretext
or the other, such presents should neither be allowed to be transferred nor disposed of for a minimum of five years
from the date of the marriage without the prior permission of the family court on an application made by her.

In our submission, the provision of listing of presents is a very salutary one. When a marriage breaks down and wife
is expelled from the matrimonial home or is forced to leave it leaving behind all her properties in the matrimonial
home, and thereafter when she makes a demand for the recovery of her stridhan, it sometimes becomes well nigh
impossible to prove as to which are her stridhan items, which are the articles of presents made to her at the time of
marriage, and more often than not, she is the loser. Sub-section (2) of this section lays down that all presents given
to the bride and bridegroom at the time of marriage should be listed in two separate lists, one containing the items
of presents given to the bride, and the other containing the items of presents given to the bridegroom. The bride
should keep her list and the bridegroom should keep his. However the Act does not provide for registration of the
lists. Nor does it lay down that the gifts made to the bride could not be alienated during the five years of the
marriage without her permission.

The Dowry Prohibition (Maintenance of the Lists of Presents to the Bride and the Bridegroom) Rules, 1985 provide
for the maintenance of the following two lists:—
(a) List of the presents given to the bride which is to be maintained by her.
(b) The list of the presents given to the bridegroom to be maintained by him.

The Rules lay down that each list of presents should be prepared at the time of marriage or as soon as possible
after the marriage. Rules 2(3) provides for the following:—
(i) Lists should be in writing, and
(ii) should contain the following information:—
(a) a brief description of each present,
(b) the approximate value of the present,
(c) the name of the person who has given the present,
(d) where the person giving the present is related to the bride or bridegroom, a description of the
relationship.

It is in the option of the bride or the bridegroom to obtain the signatures of the other party to the marriage or any
relation or any other person or persons present at the time of the marriage on the lists1.

It is obvious that where the bride or bridegroom is unable to sign on account of illiteracy or any other reason she or
 Page 12 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

he may affix her or his thumb-impression in lieu of her or his signatures after having the list read out to her or him
and on obtaining the signatures on the list of the person who has so read out the particulars contained in the list2.

4. Penalty for demanding dowry.—

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be
less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six months.
1. Amendment.—

Original section 4 has been amended in two respects: (a) the minimum and maximum punishment has been laid
down. Ordinarily no one can be punished for less than six months for the offence of demanding dowry (except when
the proviso applies) as well as with fine. (Under the old section jail sentence and fine could be given in the
alternative also). (b) For the prosecution of the offender now no sanction of the State Government is needed.
Originally, proviso to the section laid down that no prosecution of the offender could take place unless prior sanction
of the court was obtained, and this provision was considered mandatory1.
2. State Amendments.—

Some of the States have amended section 4, of the Act, or in the State statutes it is worded differently. Some of the
State statutes have enhanced the punishment.

Punjab.—The Punjab statute (Act 26 of 1976) retains the original section, but adds two more sections 4A and 4B.
These sections run as under:

4A. Bar to certain acts.—Any person who—

(i) displays any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles;
or

(ii) takes in a marriage party more than twenty-five persons exclusive of minors and the members of the band; or

(iii) gives in the form of sagan at the time of thaka, betrothal or marriage, anything the value of which exceeds eleven
rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of ‘milni’ or any other
ceremony performed in relation to betrothal or marriage; or
(v) serves to the marriage party more than two principal meals; shall be punishable with imprisonment for a term
which may extend to six months or with fine which may extend to five thousand rupees or with both.
Explanation.—In this section expression ‘principal meal’ means lunch or dinner.
4B. Penalty for depriving any party of rights and privileges of marriage.—Any party to the marriage who after the marriage,
deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for
non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with
imprisonment for a term which may extend to one year, and fine which may extend to five thousand rupees.

Himachal Pradesh and Haryana.—The Himachal Pradesh statute (Act 25 of 1976) amends section 4 of the Act by
enhancing the punishment to one year. The fine can be imposed in addition to the jail sentence. Then the Act adds
section 4A which is similar to section 4A of the Punjab Act. It also adds section 4B on the line of section 4B of the
Punjab Act, but adds, “the provisions of this section shall be in addition to and not in derogation of any provision on
the subject contained in any other law for the time being in force”.

The Haryana Act (38 of 1976) contains similar provision in clauses (c), (d), (e) and (f) of section 3 of the Act. These
provisions we have noted in the commentary on section 2.

Orissa.—The Orissa State statute (28 of 1961) retains the original section as such.
 Page 13 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

West Bengal.—The West Bengal statute (35 of 1975) inserts a new section 5 which is identical with the provision in
section 4B of the Himachal Pradesh Act.

Bihar.—The Bihar State statute (4 of 1976) retains the original provisions, with this modification that the fine can be
imposed in addition to the jail sentence and not in the alternative.

Andhra Pradesh.—The Andhra Pradesh State statute (1 of 1958) demanding of dowry is not an offence.

All those provisions of the State statutes which are inconsistent with the Dowry Prohibition Act, 1961 as amended
by the amending Acts of 1984 and 1986 will have no effect.
3. Offence of demanding dowry.—

Demanding dowry is an offence under this section. What precisely are the ingredients of the offence? In cases
coming under the original Act of 1961, there was some controversy among our High Courts as to whether the
offence of demanding dowry is constituted merely on the demand being made or for the constitution of the offence it
was also necessary that the demand should be accepted by the other party. The reason for this controversy was
the wording of the definition of dowry contained in the original section 2 of the Act, i.e., any property or valuable
security given or agreed to be given “as consideration of marriage.” Now that these words have been substituted
with the words “in connection with the marriage of the said parties”, it is submitted that there is no scope for the
controversy. Since no case has come under the new Act, it might be worthwhile to review the old cases on the
subject.

Merely because the deceased wife did not tell her close friends about the demand of dowry or harassment, that
does not positively prove the absence of demand of dowry. In a traditional custom-bound society one may not
discuss family discords. Where there is cogent and reliable evidence regarding demand of dowry, the said fact
would be of no consequence.1

The definition of the expression ‘dowry’ contained in section 2 of the Act cannot be confined merely to the ‘demand’
of money, property or valuable security ‘made at or after the performance of marriage’. The Legislature has, in its
wisdom, while providing for the definition of ‘dowry’ emphasized that any money, property or valuable security given
as a consideration for marriage, ‘before, at or after’ the marriage would be covered by the expression ‘dowry’ and
this definition as contained in section 2 has to be read wherever the expression ‘dowry’ occurs in the Act. Meaning
of the expression ‘dowry’ as commonly used and understood is different than the peculiar definition thereof under
the Act. Under section 4 of the Act, mere demand of ‘dowry’ is sufficient to bring home the offence of an accused.
Thus, any “demand” of money, property or valuable security made from the bride or her parents or other relatives
by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of ‘dowry’ under the
Act where such demand is not properly referable to any legally recognised claim and is relatable only to the
consideration of marriage. Marriage in this context would include a proposed marriage also, more particularly,
where the non-fulfilment of the “demand of dowry” leads to the ugly consequence of the marriage not taking place
at all. The expression ‘dowry’ under the Act must be interpreted in the sense which the statute wishes to attribute to
it.2
4. Offence of demanding dowry is constituted when demand is accepted.—

In Inder Sain v. State3, and in Kashi Prasad v. State of Bihar4, the Patna High Court expressed the view that mere
demand for dowry would not constitute an offence under the section unless it was shown that the other party
consented to pay it. Luthra, J. of the Delhi High Court, after quoting the definition of dowry, observed:

Thus the definition of the word ‘consideration’ leads to the conclusion that property or valuable security should be
demanded or given whether in the past, present or future for bringing out solemnization of marriage, giving a property or
valuable security by the parents of the bride cannot constitute a ‘consideration’ for the marriage unless it was agreed at the
time of or before the marriage that such property or valuable security would be given in future1.

In this case in sagun, the bridegroomwallas got a refrigerator and some clothes worth Rs. 6000 from the bride’s
father. Subsequently with a view to meet the demands for a T.V. set, scooter and other things the father of the bride
paid a sum of Rs. 20,000 and then another sum of Rs. 4500. But the demands for dowry did not cease and when
the father failed to satisfy further demands there began the usual maltreatment of the wife to coerce her father to
yield. On their failure to get the same met even by this method, on September 4, 1978, the father-inlaw, the mother-
in-law of the bride removed all ornaments from her person and turned her out of the house. This was followed by an
assault on her father by the husband and a few goondas engaged by him.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

After obtaining necessary sanction in terms of the proviso from the Union Territory Administration, a complaint was
filed by the police. In their defence the accused, inter alia, pleaded the bar under section 7(2) of the Act, since the
prosecution was launched one year after the offence of dowry was committed. Referring to the definition of dowry,
Luthra, J., observed that to constitute the offence, it was necessary that property or valuable security must be given
“as consideration for the marriage”. The learned judge added that consideration according to the dictionary meaning
would mean motive, reason or reward for the marriage, and the words “for marriage” meant for the act of marrying
or in other words for solemnizing of marriage. Hence only those articles could be dowry which were given or agreed
to be given as reward or reason or motive for the solemnization of the marriage. Anything given after the marriage,
the learned judge opined, might be on account of demand from the boy or his parents or relations could be
considered to be a consideration for the continuation of the marriage for happy and good matrimonial relationship.
In the opinion of the Luthra, J., anything given after the marriage could be dowry only if it was agreed upon or
promised to be given as ‘consideration for marriage’, since in the present case there was no such allegation, the
articles demanded for and given after the solemnization of the marriage could not be considered as demand for
dowry and therefore no offence under the Act was committed. In the words of the learned judge:

With reference to the passing of property or valuable security, ‘consideration’ means that such property or valuable security
should have been given or is given or promised to be given in order that there may be performance or solemnization of
marriage…After the marriage, giving of property or valuable security by the parents of the bride cannot constitute a
consideration for marriage unless it was agreed at the time or before the marriage that such property or valuable security
would be given in future.

The court held that since the complaint did not spell out that the articles given to the bridegroom and his parents
after the marriage were given as a result of some agreement for the purpose of the marriage, no offence under
section 4 of the Dowry Prohibition Act was committed. At best they were given, the court observed, with a view to
enabling the parties to have smooth sailing and continuance of good marital relationship.
5. Mere demand for dowry constitutes the offence.—

It is submitted that the preferable view should be that mere demand for dowry should constitute the offence under
section 4 of the Act. In Daulat Man Singh v. C.R. Bansi1, the Bombay High Court held that a mere demand for
money as dowry for completing the marriage ceremonies on the pain of not completing the same if the demand was
not met was sufficient to constitute the offence of demanding dowry under section 4 of the Act, even though the
bride’s father did not consent or accede to the demand. That this is the correct view has been confirmed by the
Supreme Court in L.V. Jadhav v. Shankar Rao2. In this case the complainant averred that when the marriage
ceremony was in progress, the bridegroom and his father demanded in cash a sum of Rs. 50,000 from the
complainant on the pretext that money was required for the transport of couple from India to the USA, where the
bridegroom was employed as an engineer, and threatened that the ceremony would not be completed if the
demand would not be met. However, some respectable persons present there persuaded the father of the
bridegroom to complete the ceremonies. He agreed and ceremonies were performed. Although the travel document
of the bride were complete she was not sent to the USA with her husband and her father was told that unless the
demand to pay Rs. 50,000 was met she would not be allowed to join her husband. Thereafter also the demand was
persisted. Left with no alternative, the father of the bride lodged the complaint. When the case went before a
Division Bench of the Bombay High Court, it, ignoring its earlier decision in Daulat Man Singh v. C.R. Bansi$$1$$,
held that since the demand for dowry was not accepted by the other party no offence of demanding dowry was
constituted. Reliance was placed on the definition of dowry contained in section 2 of the Act.

In the Supreme Court, Verdarajan, J., observed that the question for consideration was whether the allegations in
the complaint that there was a demand for a sum of Rs. 50,000 made by the respondent on the pain of marriage
ceremonies being not completed, if the demand was not complied with constituted the offence of demanding dowry.
It was immaterial whether the demand was met on the plea that the money was needed for meeting the expenses
of passage of the couple to the USA. (It is submitted that whether it was a genuine need or just a pretext is
immaterial.)

After a review of the provisions of sections 2, 3, 4 and 8 of the Act and precedents of the High Court, the learned
judge said that though all the offences under the Act have been made non-compoundable, section 2 gives the
impression that consent to comply with the demand for any property as consideration for the marriage would alone
make the property or valuable security as dowry. But, having regard to the dominant object of the law in view, the
judge remarked, which is to stamp out the practice of demanding dowry in any shape or form either before or after
marriage, it was not necessary to import the entire definition of dowry given in section 2, into section 4 which
provides that if any person after the commencement of this Act, demands, directly or indirectly from the parents or
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Chapter III THE DOWRY PROHIBITION ACT, 1961

guardian of a bride or bridegroom, as the case may be, any dowry, “he shall be punishable with imprisonment which
may extend to six months…”, the learned judge held:

We are of the opinion that having regard to the object of the Act a liberal construction has to be given to the word ‘dowry’
used in section 4 of the Act to mean that any property or valuable security which is consented to be given on the demand
being made would become dowry within the meaning of section 2 of the Act. We are of the opinion that the object of section
4 of the Act is to discourage the very demand for property or valuable security as consideration for marriage between the
parties thereto…. There is no warrant for taking the view that the initial demand for giving of property or valuable security
would not constitute an offence and that an offence takes place only when the demand was made again after the party on
whom demand was made agreed to comply with it.

It is submitted that with the modified definition of dowry in the new section 2, there is hardly any scope for the
controversy, and a mere demand for dowry would constitute an offence.

In view of the above observations of the Supreme Court and the amendment, the offence of demanding dowry is
constituted the moment demand is made. This also comes into clear relief from the discussion in Daulat Man Singh
v. C.R. Bansi1, where in demand of dowry was made through the elder brother of the accused who was the son-in-
law of the complainant. He wrote a letter addressed to his father-in-law that the accused demanded dowry. Thus,
the demand of dowry was made indirectly through the agency of the brother. It was held that the demand for dowry
constituted an offence. It may be noted that the letter was written from Agarthala where the brother resided and was
addressed at the Bombay address of the complainant. It was held that the offence was committed in Bombay. It is
not necessary that the demand of dowry should be made at or near about the date of marriage. If demand for dowry
has been made earlier when the parties are negotiating marriage, it would nonetheless constitute the offence of
demanding dowry, even if negotiation break down and no engagement of marriage takes place2. It is obvious that
demand must be for property or valuable security.

It is submitted that Kashi Prasad v. State of Bihar3, decided under the unamended Act, does not represent a good
law. In this case demand for Rs. 5000 was made after the solemnization of marriage. It was held that since it was
not in consideration of marriage, no offence under section 4 was committed. It is submitted that if the demand is
connected with dowry, it is immaterial whether it is made before or after the marriage or at the time of marriage1. It
is submitted that with the amendment of the Act by the amending Act of 1984, cases like Kashi Prasad v. State of
Bihar1, are no longer of any value. Decisions in these cases were rendered on the construction of the definition of
dowry in the unamended Act, and now that the definition has been drastically amended, the occasion for rendering
such decisions should not arise.

Having regard to the dominant object of the Act which is to stamp out the practice of demanding dowry in any shape
or form, either before or after the marriage, the entire definition of the word “dowry” should not be imported into
section 4, and a liberal construction has to be given to the word “dowry” used in section 4 to mean that any property
or valuable security which if consented to be given on the demand being made, would become dowry within the
meaning of section 2 of the Act. The object of section 4 is to discourage the very demand for property or valuable
security as consideration for a marriage between the parties thereto. Section 4 prohibits the demand for “giving”
property or valuable security which demand, if satisfied, would constitute and offence under section 3 read with
section 2 of the Act. There is no warrant for taking the view that the initial demand for giving of property or valuable
security would not constitute an offence and that an offence would take place only when the demand was made
again after the party on whom the demand was made agreed to comply with it.2

No prior permission for prosecution is needed.—Now for prosecution of an offence under this section, no prior
permission of the State Government is necessary.
6. Prosecution under this section and the inherent powers of the high Court under section 482 of the
Criminal Procedure Code, 1973.—

The High Courts have inherent powers under section 482 of the Criminal Procedure Code, 1973 and a debate is
going on, and, it seems, will go on, when and in what cases and in which circumstances the High Courts should
exercise this power. In reference to prosecution for dowry offences, the question came for consideration inL.V.
Jadhav v. Shankar Rao3, as to when the court could exercise this power. In this case the High Court exercised the
discretion and quashed the prosecution of the accused. The Supreme Court disapproved of this exercise of the
power by the High Court. Vardarajan, J., observed:

The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very
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Chapter III THE DOWRY PROHIBITION ACT, 1961

threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection
when there is a reason to believe that the process of law is being misused to harass a citizen. The present was not such a
case. We find that the complaint had been filed after obtaining the previous sanction of the State Government or of such
officer as the State Government may by general or special order specify in that behalf as required by proviso to section 4 of
the Act1.

As we have noted earlier, now no such prior permission of the State Government is necessary for the prosecution
of dowry offences.
7. Proviso to the old section: Prior sanction of the State Government for the cognizance of the offence.—

Under the proviso to the old section 4, it was laid down that “no court shall take cognizance of any offence under
this section except with the previous sanction of the State Government or of such officer as the State Government
may, by general or special order, specify in his behalf.” Obviously cases coming under the old section took the view
that for the cognizance of an offence under the Act prior permission of the State Government is mandatory. In Hari
Charan Paswan v. State of Bihar2, the Patna High Court observed that the provision for sanction had been
incorporated specifically for the offence under section 4 of the Act which must be for safeguarding against any false
and fictitious allegation which were expected under the certain circumstances when there was a failure of
negotiations of marriage; it was under these circumstances that Parliament desired that no prosecution should take
place of an offence under section 4 without the prior permission of the State Government, as it might be a vindictive
prosecution.

However, the amending Act has omitted the proviso, and now for prosecution for an offence under section 4, no
prior permission of the State Government is necessary.

It may also be noticed that the amendment cannot have retrospective operation, and in case any offence committed
under section 4 before October 2, 1985, the proviso to old section will govern the matter.
8. Punishment for dowry death.—

In Kimtilal v. State of Haryana3, the accused brutally murdered his wife for her inability to satisfy his greed for a
motorcycle. The trial court sentenced him to life imprisonment and a fine Rs. 10,000. S.S. Diwan, J., of the Punjab
and Haryana High Court observed that in the circumstances of the case fine of Rs. 10,000 was quite inadequate
and not commensurate with the heinous nature of the crime. He further said that the accused has put to an end an
innocent life merely on account of his greed for obtaining a motorcycle from his in-laws. The learned judge added
that under these circumstances a heavy fine should be imposed. The fine was enhanced to Rs. 50,000, in default of
which the accused was to undergo a further sentence of five years’ rigorous imprisonment. The court directed that
the fine when realized should be paid in equal shares to the parents of the deceased woman. In Surinder Kumar v.
State4, the Supreme Court felt that there was no need for imposing the fine. In this case the husband was tried for
murdering his wife by burning. The incident happened about ten months after the marriage. The circumstantial
evidence and the dying declaration clearly proved that the husband poured kerosene on the wife out of the stove
and ignited it which resulted in her death by burning. In this case the trial court sentenced the husband to life
imprisonment and also imposed a fine of Rs. 500. This was confirmed by the High Court. On appeal to the Supreme
Court, Natarajan J., (without giving any reasons) said that “insofar as this sentence is concerned there was no need
to have imposed a sentence of fine”. It is submitted that in Kimtilal v. State of Haryana1, Dewan, J., rightly imposed
the fine as on greedy persons monetary burden should also be imposed. Further, it provides some consolation to
the grief stricken parents of the wife. It is submitted that in dowry death cases, it should be the policy of law to
impose a fine on the accused in addition to sentence of death, life imprisonment or any imprisonment that court
deems fit.

There should be an obligation on the part of prosecution to prove guilt of accused; Arvind Singh v. State of Bihar,
AIR 2001 SC 2124 [LNIND 2001 SC 1078]: 2001 AIR SCW 1913: 2001 Cr LJ 2556 : (2001) 6 SCC 695 . See also
Pawan Kumar v. State of Haryana, (2001) 3 SCC 628 [LNIND 2001 SC 663]: AIR 2001 SC 1324 [LNIND 2001 SC
663]: 2001 Cr LJ 1679: JT 2001 (3) SC 475 [LNIND 2001 SC 663]: 2001 (2) SCJ 507 [LNIND 2001 SC 663]: (2001)
2 SCALE 440 [LNIND 2001 SC 663]: 2001 SCC (Cri) 594 [LNIND 2001 SC 663]: 2001 (2) Supreme 335 [LNIND
2001 SC 663].

4A. Ban on advertisement.—

If any person—
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Chapter III THE DOWRY PROHIBITION ACT, 1961

(a) offers, through any advertisement in any newspaper, periodical, journal, or through any other media, any
share in his property or of any money or both as a share in any business or other interest as consideration
for the marriage of his son or daughter or any other relative;
(b) prints or publishes or circulates any advertisement referred to in clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend
to five years, or with fine which may extend to fifteen thousand rupees:

Provided that the court may, for adequate and special reasons to be recorded in the judgment, impose a sentence
of imprisonment for a term of less than six months.

Amendment.—This section has been inserted by the Dowry Prohibition (Amendment) Act, 1986.

5. Agreement for giving or taking Dowry to be void.—

Any agreement for giving or taking dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.—

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is
given, that person shall transfer it to the woman—
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within three months after the date of its
receipt; or
(c) if the dowry was received when the woman was a minor, within three months after she has attained the
age of eighteen years,

and pending such transfer, shall hold it in trust for the benefit of the woman.
(2) If any person fails to transfer any property as required by subsection (1) within the time limit specified
therefor or as required by subsection (3), he shall be punishable with imprisonment for a term which shall
not be less than six months, but which may extend to two years or with fine which shall not be less than
five thousand rupees but which may extend to ten thousand rupees or with both.
(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the
woman shall be entitled to claim it from the person holding it for the time being:

Provided that where such woman dies within seven years of her marriage, otherwise than due to
natural causes, such property shall,—
(a) if she has no children, be transferred to her parents, or
(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such
children.

(3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-
section (1) or sub-section (3) has not, before his conviction under that sub-section, transferred such
property to the woman entitled thereto or, as the case may be, her heirs parents or children, the court shall,
in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall
transfer the property to such woman or, as the case may be, her heirs, parents or children within such
period as may be specified in the order, and if such person fails to comply with the direction within the
period so specified, an amount equal to the value of the property may be recovered from him as if it were a
fine imposed by such court and paid to such woman, or, as the case may be, her heirs, parents or children.
(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.
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1. Amendment.—

The Amending Act of 1984 has reduced the time limit within which the third party who has received the dowry or
who is in its possession should return it to the bride. In the original Act the time was one year. Now it has been
reduced to three months. For the offence the minimum and maximum punishment has been laid down. The
minimum jail sentence is six months and maximum jail sentence is two years. The amount of fine has been
enhanced to Rs. 10,000 from Rs. 5000.

The new sub-section (3A) of this section is very important. Even after his conviction under this section, the accused
is required to transfer the dowry to the woman within the time specified in the order. On the accused failing to return
the property even then, an amount equal to the value of the property is to be recovered from his property as if it
were a fine imposed by the court and paid to the married woman.

The 1986 amendment has explained the words “her heirs” so as to include her parents and children.
2. State Amendments.—

The Haryana statute has amended the law by laying down that the fine of Rs. 5000 on the person accused of an
offence under the section is not in the alternative but in addition to. The Orissa statute lays down that the
punishment of the accused under this section does not absolve him from the obligation of transferring the dowry
property to the woman entitled to it. Section 6A and section 6B of the Orissa Act are very important.

Punishment of the husband for cessation of cohabitation on wife’s failure to bring dowry.—Section 6A and
section 6B of the Orissa Act contain some innovative provisions. It provides for the situation where husband with a
view to exerting pressure on the wife and his in-laws to bring dowry, ceases to have cohabitation with her and
snaps relations with her.

Section 6A runs:

Penalty for denial of conjugal right by the husband.—

(1) If any person denies conjugal rights to his wife on the ground that dowry has not been given or on the
ground that the dowry given is insufficient, he shall be punishable with imprisonment which may extend to
one year, or with fine which may extend to ten thousand rupees or with both.
(2) The court trying an offence under this section may, at any stage of the proceedings, on the execution of a
bond by the husband undertaking not to realize the dowry or any portion thereof, as the case may be, and
to allow conjugal rights to the wife, drop the proceedings.
(3) Any proceedings dropped under sub-section (2) shall revive if the court is satisfied, on an application made
in that behalf by the wife, that the husband has failed to carry out the undertaking or has otherwise acted
contrary to the terms of the bond, and thereupon the court shall proceed with the case from the stage at
which it was dropped:

Provided that no application under this sub-section shall be entertained if it is made after the expiry of
three years from the date on which the proceedings were dropped.
(4) The court may direct that the fine, if any, imposed under this section or such portion thereof as the court
deems proper, shall be paid to the wife as compensation.

Section 6B runs:

Maintenance to be paid by husband on his conviction—

(1) On conviction of a person for an offence under section 6A, the court trying the offence may, on a claim
made by his wife in that behalf within two months from the date of the order of conviction, order such
person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding
five hundred rupees, as the court may deem proper:

Provided that no such order shall be made without giving the parties concerned a reasonable
opportunity of being heard.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

(2) In determining the monthly allowance under this section regard shall be had to—
(a) the position and status of the parties;
(b) the reasonable wants of the wife;
(c) the value of the wife’s property and any income derived from such property, or from wife’s own
earnings of from any other source; and
(d) the amount of compensation awarded section 6A.
(3) The maintenance allowance so ordered shall be a charge on the property, if any, of the husband, whether
required before or after the date of the order.
(4) Where a complaint has been filed by the wife for an offence under section 6A, the husband shall not
transfer any of his assets till—
(a) where no claim for maintenance has been preferred under this section, the date of expiry of the period
of limitation specified in sub-section (1) for filing such claim; and
(b) where such claim is preferred, the disposal of the claim.
(5) Notwithstanding anything contained in any other law, the wife may enforce any claim for maintenance
against any property transferred by the husband in contravention of the provisions of sub-section (4) as if
such transfer were null and void.
(6) The provisions contained in sub-section (3) of section 125 of the Code of Criminal Procedure, 1973 shall,
so far as may be apply to the recovery of the maintenance allowance ordered under this section.

The West Bengal State statute (35 of 1975) also contains a provision under which a delinquent spouse, i.e., the one
who deprives the other spouse of the rights and privileges of marriage, can be punished. But under the Act, there is
no provision whereunder the wife could also claim maintenance as under the Orissa statute. The new sub-section
4A of the West Bengal statute runs as under:

Penalty for depriving any party of the rights and privileges of marriage:—
(1) If after the marriage, any party to the marriage with or without the assistance of his parents or guardians
deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said
other party for non-payment of dower before, during or after marriage, he shall be punishable with
imprisonment which shall not be less than three months, but may extend to one year or with fine which
shall not be less than two thousand rupees, but may extend to five thousand rupees, or with both.
(2) The provisions of this section shall be in addition to, and not in derogation of, any provisions on the subject
contained in any other law for the time being in force.

It is submitted that although the provision is worded in the language which indicates that it is enforceable against
any spouse whosoever is delinquent, but the use of word “he” in sub-section (1) appears it to be enforceable
against the husband. Further there is hardly any personal law under which the wife has no obligation to pay
maintenance to the husband except under sections 24 and 25 of the Hindu Marriage Act, 1955, but that provision is
meant to be applicable to matrimonial proceedings.

The Joint Committee also recommended that a husband who suspends or ceases to have marital relations with his
wife should be punished with imprisonment which may extend to one year along with a fine of Rs. 10,000.
Parliament did not accept this recommendation. It is submitted that Parliament rightly rejected the recommendation.
It would virtually amount to restitution of conjugal right by arrest of the husband—obviously a very crude and brutal
method. Most countries of the world have abolished the remedy of restitution of conjugal right. Even those countries
which still recognize the matrimonial remedy of restitution of conjugal rights do not provide for its execution of the
decree by arrest of the defaulting spouse. It is now fully realised that a decree of restitution of conjugal rights is not
a civilized method of bringing together erring spouses. This anachronistic remedy has been rightly called worst
tyranny and worst form of remedy. It is inhuman and barbaric to compel a human being— howsoever delinquent he
or she might be—to cohabit with another spouse without his willingness.

No other State has amended the section.

3. Scope.—

Section 5 of the Act lays down that an agreement for giving and taking dowry is void. This obviously means that if
 Page 20 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

under such an agreement the giver has not given the dowry to the taker, the agreement cannot be enforced. But it
does not mean that if the taker has received the dowry, he can retain it. This section lays down that wherever dowry
is received despite the Dowry Prohibition Act, the receiver of the dowry cannot retain it. Whosoever, whether the
bridegroom, his parents or relations or any other person, has received the dowry must hold it in trust for the bride
and must transfer it to her within the stipulated period of three months. If he does not do so, he will be guilty of a
dowry offence under this section. The section further lays down that even after his conviction he must return the
dowry to the woman within the time laid down in the order. If the accused defaults, it can be recovered from him as
a fine (i.e., an amount equal to the value of the dowry). In short, this section lays down that under no circumstances
any person who has got the dowry can retain it with him. He must convey it to the woman, and if she is dead, it
must be conveyed to her heirs, parents, or children.
4. Breach of Trust.—

A person who retains the dowry and does not return it to the woman entitled to it, is guilty of breach of trust.
5. Punishment.—

Any person failing to transfer the dowry-property to the wife as laid down in sub-sections (2) and (3), shall be
punishable with imprisonment which shall not be less than six months and may extend to two years or with fine
which shall not less than Rs. 5000 and which may extend to Rs. 10,000. This fine and sentence of imprisonment is
in addition to the requirement that the dowry or a sum equivalent to the same has to be returned or given to the
wife, and in case she is dead to her heirs, parents and children.

7. Cognizance of offences.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,—

(a) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence under this Act;
(b) no court shall take cognizance of an offence under this Act except upon—
(i) its own knowledge of a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or
by any recognized welfare institution or organization;
(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any
sentence authorized by this Act on any person convicted of any offence under this Act.

Explanation.—For the purposes of this sub-section “recognized welfare institution or organization” means a
social welfare institution or organization recognized in this behalf by the Central or State Government.
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence
punishable under this Act.
(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person
aggrieved by the offence shall not subject such person to a prosecution under this Act.

1. Amendment.—

Under Clause (b) of sub-section (1) of old section 7 of the Dowry Prohibition Act, 1961 it was not stated as to who
could file a complaint for the prosecution of a dowry offence, and therefore it caused some difficulties of
interpretation. A view was forcefully propounded that only an aggrieved party could file the complaint. Under the old
section, the court has no power to take cognizance of a case suo motu or on the report of the police. Now the scope
of the clause has been widened. Under the amended clause any one of the following persons can file a
complaint:—
(a) Aggrieved person,
(b) A parent or other relative of the aggrieved party, and
(c) Any recognized welfare institution or organization.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

Now cognizance of a dowry offence can also be taken by the court:—

(i) on the basis of its own knowledge, or
(ii) on the basis of a police report of the facts which constitute an offence under the Act.

An aggrieved person who makes a statement regarding a dowry offence cannot be prosecuted for the statement.
2. State Amendments.—

Several states have amended this section. Some have tried to make the provision more stringent.

Punjab.—The Punjab statute (26 of 1976) has substituted section 7 as under:

7. Cognizance of Offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973—

(1) No court inferior to that of a Judicial Magistrate of the first class shall try any offence under the Act.
(2) No court shall take cognizance of any offence punishable under sections 3, 4 and 4B except upon a
complaint made within one year from the date of the offence, by some person aggrieved by the offence:

Provided that—
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is suffering from
sickness or infirmity unable to make a complaint, or is a woman, who according to the local customs and
manners ought not to be compelled to appear in public, some other person may, with the leave of the court
make a complaint on his or her behalf;
(b) where the person aggrieved by an offence is the wife, complaint may be made on her behalf by her father,
mother, brother, sister or by her father’s or mother’s brother or sister; and
(c) Every offence under section 4A shall be cognizable:

Provided that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence
punishable under this Act or make any arrest therefor.

Himachal Pradesh.—The Himachal Pradesh statute (25 of 1976) has also substituted section 7. The substituted
section runs as under:

Trial of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) no court
inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act.
(2) No court shall take cognizance of any offence under this Act except that of offence under section 4B, except on a police
report or complaint made within one year of the marriage.

Haryana.—The Haryana Statute (38 of 1976) has also substituted section 7 with its own section. The substituted
section runs as under:

Cognizance of offences.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) no court inferior to that of Judicial Magistrate of the first class shall try any offence under this Act;
(b) no court shall take cognizance of any such offence except on a complaint made by any party to the marriage or
her father, mother or brother or a Gazetted Officer specifically authorised by the State Government in this behalf,
within a period of one year from the date of the marriage;
(c) no court shall take cognizance of any such offence except with the previous sanction of the District Magistrate or
of such officer as the State Government may, by general or special order, specify in this behalf;

(d) no enquiry shall be got made through any police officer below the rank of a Deputy Superintendent of Police;

(e) no woman shall be called to a Police Station for the purpose of an enquiry regarding any offence under this Act.

Orissa.—The Orissa Statute (28 of 1961) has also substituted section 7 with its own section. The substituted
section runs as under:
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Chapter III THE DOWRY PROHIBITION ACT, 1961

Notwithstanding anything contained in the Code of Criminal Procedure, 18981—

(a) no Court inferior to that of a Presidency Magistrate or Magistrate of the first class shall try any offence;

(b) no court shall take cognizance of any such offence except on a complaint made within one year from the date of
the offence; and

(c) it shall be lawful for a Presidency Magistrate or a Magistrate of the first class to pass any sentence authorized by
this Act on any person convicted of an offence under this Act.

Some minor amendments have also been made by the States of Bihar and West Bengal.
3. Aggrieved person.—

In a dowry offence the aggrieved person is regarded the bride or the bridegroom on whose behalf dowry is given or
agreed to be given. It may be interesting to note that in most of the cases of dowry, the demand for dowry is made
on the parent or guardian or the other party and in most of the cases where dowry is actually paid, the maker of the
payment is the guardian or parent of the other party, yet the aggrieved party is not considered to be the parent or
guardian of the bride or bridegroom, as the case may be, but the bride or bridegroom, herself or himself.

Since under the original section 7 it was not specified as to who was competent to lodge the complaint, some courts
took a very wide view of the matter. In Lajpat Rai Sehgal v. State1, it was held that in the absence of any specific
description as to who could lodge a complaint under the Dowry Prohibition Act, 1961, a complaint could be
preferred by any person. In this case it was strenuously argued on the basis of Chapter XX of the Indian Penal
Code, 1860 which deals with the offences relating to marriage, that only an aggrieved party could lodge a
complaint. Rejecting the contention, Leila Seth, J., observed that in regard to cases coming under Chapter XX of
the Indian Penal Code and section 198 of thecode of Criminal Procedure, 1973, it is specifically laid down that only
an aggrieved party as enumerated there could lodge a complaint to prosecute the offender. The learned judge
added that section 198 of the Code of Criminal Procedure is not applicable to dowry offences. In dowry cases, the
aggrieved party, bride or bridegroom seldom file a complaint. The same is the case of parents. The Joint Committee
observed that since the aggrieved party is bride’s parents, they are often hesitant and unwilling to make a complaint
because of the fear that their daughter might be victimized. The new amendment clarifies this and lays down that a
complaint can be lodged by the aggrieved party, her parent or relation, or registered social organizations.
4. Cognizance of the offence on the basis of police report.—

The amended section 7 specifically lays down that cognizance of the dowry offence can be taken by the court on
the basis of police report. In Lajpat Rai Sehgal v. State1, a case under the unamended Act, it was vehemently
argued that cognizance of an offence could not be taken on the basis of the police report. In this case, one Lajpat
Rai Sehgal married one Rajkumari on March 3, 1980. On May 9, Rajkumari died of burns. The case of Rajkumari’s
father was that a list of articles to be given at the time of the sagun was handed over to him by Lajpat Rai and his
brother-in-law, and those articles were in fact given to Lajpat Rai at the time of sagun. Thereafter certain dowry
demands were made, and Rajkumari’s father gave what possibly he could at the time of the marriage, but, it
appeared, that Lajpat Rai’s family’s lust for financial gains remained insatiable. Immediately after marriage, i.e., on
March 4, 1980, fresh demands for dowry were made, which Rajkumari’s father could not meet.

After the death of Rajkumari, her father lodged a complaint (FIR) at police station on May 13 under section 306 of
the Indian Penal Code, 1860. The case was investigated by the CID (Crime), Delhi Police. Thereafter it was
transferred to the CBI. It was once again sent back to Delhi CID, and no challan under section 306 of the Indian
Penal Code was filed against Lajpat Rai, or his father and other relatives involved in the case. On July 17, an
application was made by the police for permission to investigate the non-cognizable offences under sections 3 and
4 of the Dowry Prohibition Act, 1961 and on the same day permission was granted by the Addl. Metropolitan
Magistrate, Tis Hazari, Delhi. On November 24, 1980 an application for prosecuting Lajpatrai and others was made
and was granted by the District Magistrate on January 8, 1981. On March 10, 1981 complaint challan was filed, and
summons were issued for April 10, 1981. On November 7, 1981, a prima facie case being established, orders were
issued that an offence under section 4 of the Dowry Prohibition Act, 1961 has been committed, and notice under
section 251, of the Code of Criminal Procedure, 1973 was issued to Lajpatrai and others on the same day. On
November 7, 1981, Lajpatrai and others moved a petition in the Delhi High Court for quashing the proceeding on
several technical grounds, one of which was that the police report could not be considered as a complaint and
hence no proceedings were maintainable. After hearing the arguments, Leila Seth, J., observed that on a
harmonious construction of provisions of the Code of Criminal Procedure, it was evident that a police report of a
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Chapter III THE DOWRY PROHIBITION ACT, 1961

non-cognizable offence would be deemed to be a complaint. In terms of definition of complaint in section 2(d) of the
Code of Criminal Procedure, a complaint includes a report made by a police officer after investigation and this
would be deemed to be complaint and the police officer making the report would be deemed to be complainant.
And, thus, she held that a complaint by the investigating officer could be complainant in terms of section 7(b) of the
Dowry Prohibition Act, 1961. The learned judge concluded that a complaint within the meaning of section 7(b) and
the fact that the permission has been obtained under section 155(2) of the Code to authorise the investigation
would not take the police report out of the purview of the deemed complaint within the meaning of section 2(d) of
the Code. It is submitted that it was a strained construction of the provisions, but it served the social purpose.

However, all the judges need not be motivated by the social objectives of the legislation, such as the Dowry
Prohibition Act, 1961 as Leila Seth, J., was motivated and may give the literal, technical meaning to them is evident
from the judgment of the Patna High Court in Jhapsi Chaudhari v. State of Bihar1. In this case cognizance of a
dowry offence was taken on the basis of a charge-sheet submitted by the police. The High Court observed that the
Dowry Prohibition Act, 1961 specifically required that cognizance of an offence under the Act could be taken only
on the basis of a petition or complaint and not on the basis of police report. In this case the Chief Judicial Magistrate
did not take cognizance of the offence on the basis of the complaint filed by the aggrieved party, but, instead, send
the petition of complaint to the officer in charge of the police station for investigation as a police case. After
investigation the police submitted a charge-sheet and thereafter the Chief Judicial Magistrate took the cognizance
of the offence. The Patna High Court held that this was illegal and since no complaint was filed the order was
without jurisdiction2.

After the amendment of the provision by the Act of 1984, now there is no scope for any such conflict. As it has been
seen, the court can now take cognizance of the offence on the basis of police report of the facts which constitute a
dowry offence.
5. Complaint: when it may be time barred.—

Original section 7(a) of the Dowry Prohibition Act, 1961 laid down that a complaint of a dowry offence must be
made within one year from the date of the offence. The Code of Criminal Procedure, 1973 has also introduced a
period of limitation for the cognizance of certain offences. Section 468 of the Code lays down that for taking
cognizance of offences punishable with imprisonment for a period not exceeding one year shall be one year. The
Bihar State amendment of the Dowry Prohibition Act of 1961 dropped the period of limitation laid down under
section 7(a) of the Central Act. But in Kashi Prasad v. State of Bihar1, the Patna High Court took the view that
notwithstanding the fact that the Bihar statute did not stipulate any period of limitation within which a complaint for a
dowry offence could be filed, the provision contained in section 468, of the Code of Criminal Procedure, 1973 would
apply and the period of cognizance of dowry offences would be one year from the date on which the offence was
committed.

On the other hand, in Lajpat Rai Sehgal v. State2, the Delhi High Court overcame the period of limitation laid down
in the statute with a view to giving effect to the social purpose of the legislation. In this case it was evident that the
dowry offence was committed on 26/27 January, 1980, and the challan was filed on March 10, 1981. Thus
apparently there was a delay of 42 days. But on close examination, the court found certain other facts which had
bearing on the matter. The dowry demands were continuously made upto March 4, 1980. Then section 4 of the
Dowry Prohibition Act, 1961 laid down that no cognizance of a dowry offence could be taken without the prior
permission of the State Government. In this case application for the sanction of the Government for prosecution
was made on November 24, 1980 and it was granted on January 8, 1981. These proceedings thus took 45 days. In
view of this, Leila Seth, J., observed that in the light of section 470 of the Code of Criminal Procedure, this period of
45 days was to be excluded in the computation of the period of limitation of one year. Section 470(3), of the Code of
Criminal Procedure, 1973 runs:

Where notice of prosecution for an offence has been given, or where, under any law for the time in force, the previous
consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence,
then in computing the period of limitation the period of such notice, or as the case may be, the time required for obtaining
such consent or sanction shall be extended.
Explanation.—In computing the period, the time required for obtaining the consent or sanction of the Government or any
other authority shall both be excluded.

In view of this provision, the learned judge held that the complaint was not time barred.

Under the amended Act, there is no period of limitation whatever. And since the opening words of the section are
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Chapter III THE DOWRY PROHIBITION ACT, 1961

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973”, section 468 of the Code will also not
apply.

8. offences to be cognizable for certain purposes and to be non-bailable and

non-compoundable.—

(1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act as if they were
cognizable offences:—
(a) for the purposes of investigation of such offences; and
(b) for the purposes of matters other than—
(i) matters referred to in section 42 of that Code; and
(ii) the arrest of a person without a warrant or without any order of a Magistrate.
(2) Every offence under this Act shall be non-bailable and non-compoundable.

1. Amendment.—

Under the old section 8, dowry offences were non-cognizable, bailable and non-compoundable. There has been a
strong public opinion in favour of making dowry offences as cognizable offences. The Joint Committee said, “The
Committee feels that they are in favour of the offences under the Act being made cognizable, but there is an
apprehension that it may lead to some harassment, particularly at the time of the solemnization of marriage as the
police will have power to make arrests without warrant in such cases. The Committee are, therefore, of the opinion
that in order to ensure that no harassment is caused to the parties involved, the offence should be made cognizable
subject to the condition that no arrest shall be made by the police without a warrant or an order of the Magistrate.”

This recommendation of the Committee has been accepted, and dowry offences are made cognizable—(a) for the
purpose of investigation of such offences, and (b) for purposes and matters other than those referred to in section
42 of the Code of Criminal Procedure, 1973 and the arrest of a person involved therein without a warrant or without
an order of a Magistrate. In short, in connection with a dowry offences the police cannot make arrest as in other
cognizable offences.

The amendment made by the Amending Act of 1986 makes dowry offence non-bailable.
2. State Amendments.—

Several State statutes have amended section 8 of the Central Act of 1961 and some made the dowry offences as
cognizable offences.

Punjab.—The Punjab Act (26 of 1976) has inserted a new section 8A which lays down:

Institution of proceedings.—No prosecution shall be instituted against any person in respect to of any offence committed
under the Act without the previous sanction of the District Magistrate or of such other officer as the State Government may
by special or general order appoint in this behalf.

In Punjab and Union Territory of Chandigarh the sanctioning authority is Deputy Home Secretary.

Himachal Pradesh.—The Himachal Pradesh statute (25 of 1976) has made dowry offence cognizable, but a police
report is necessary. New sections 8 and 8A of the Act run as under:

8. Offences to be cognizable, bailable and non-compoundable.— Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, (2 of 1974) every offence under this Act shall be cognizable and non-compoundable.
8A. Cognizance of offences.—No court shall take cognizance of any offence under this Act except on a police report under
section 173 of the Code of Criminal Procedure, 1973, or a complaint made by a person aggrieved of the offence, as the
case may be, within one year from the date of the commission of the offence:
Provided that no police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case
registered under this Act:
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Chapter III THE DOWRY PROHIBITION ACT, 1961

Provided further that no court shall take cognizance of any offence under this Act except with the previous sanction of the
District Magistrate, having jurisdiction in the area.

Bihar.—The Bihar Statute (4 of 1976) makes dowry offences cognizable without any safeguards. Section 8 of the
Bihar Act runs as under:

Offences to be cognizable, non-bailable and non-compoundable.—Every offence under the Act shall be cognizable, non-
bailable and non-compoundable.

3. Offences cognizable for certain purposes.—

The new section 8 makes the dowry offences cognizable for certain purposes. Thus, for the following two purposes
of dowry offences are made cognizable:—
(a) for the purposes of investigation of such offences, and
(b) for the purposes of matters other than—
(i) matters referred to in section 42, of the Code of Criminal Procedure, 1973, and
(ii) the arrest of a person without a warrant or without an order of a Magistrate.

Now the police has the power to investigate any dowry offence, without waiting for a complaint to be filed, and if it
comes to the conclusion that a dowry offence has been committed, it can approach the court. But no person can
suffer any harassment as he cannot be arrested without a warrant or an order of a Magistrate, howsoever involved
he may be, in the opinion of the police, in the offence. Similarly, in connection with dowry offences, arrests cannot
be made under section 42 of the Code. That section empowers the police to arrest a person who is involved in a
non-cognizable offence and who refuses to give his address and his name. The main provision of that section runs
thus. “When any person, who, in the presence of a police officer, has committed or has been accused of committing
a non-cognizable offence refuses, on demand of such officer, to give his name or residence or gives a name or
residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his
name or residence may be ascertained.”
4. Offences non-bailable and non-compoundable.—

The Amending Act of 1986 makes all dowry offence non-bailable offences. They are also non-compoundable
offences. Section 320 of the Code of Criminal Procedure, 1973 lists compoundable offences.

8A. Burden of proof in certain cases.—

Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of
dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on
him.

Amendment.—This section has been introduced by the Dowry Prohibition (Amendment) Act, 1986. With a view to
make dowry prohibition law more effective, this section lays the burden of proving the negative on the accused, viz.,
that the offender did not commit the dowry offence of which he is accused.

8B. Dowry Prohibition Officers.—

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the
areas in respect of which they shall exercise their jurisdiction and powers under this Act.
(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:—
(a) to see that the provisions of this Act are complied with;
(b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;
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Chapter III THE DOWRY PROHIBITION ACT, 1961

(c) to collect such evidence as may be necessary for the prosecution of persons committing offences
under the Act; and
(d) to perform such additional functions as may be assigned to him by the State Government, or as may
be specified in the rules made under this Act.
(3) The State Government may, by Notification in the Official Gazette, confer such powers on a police officer
as may be specified in the Notification on the Dowry Prohibition Officer who shall exercise such powers
subject to such limitations and conditions as may be specified by rules made under this Act.
(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the
efficient performance of their functions under this Act, appoint an advisory board consisting of not more
than five social welfare workers (out of whom at least two shall be women) from the area in respect of
which such Dowry Prohibition Officer exercises jurisdiction under sub-section (1).

9. Power to make rules.—

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the
purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for—
(a) the form and manner in which, and the person by whom, any list of presents referred to in sub-section
(2) of section 3 shall be maintained and all other matters connected therewith ; and
(b) the better co-ordination of policy and action with respect to the administration of this Act.
(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of
Parliament while it is in session for total period of thirty days which may be comprised in one session or in
two successive sessions, and if before the expiry of the session in which it is so laid or the session
immediately following both Houses agree in making any modification in the rule or both Houses agree that
rule should not be made, the rule shall thereafter have effect only in such modified form or to be of no
effect, as the case may be, so however that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.

When there is failure on the part of the executive to strictly implement a law like the one in question, enacted to
tackle a social problem which has assumed menacing proportions, the Court has a duty to step in with a mandamus
to direct its implementation rigorously and effectively. In that context, it is necessary for the judiciary to step in.

Therefore, in addition to directing the respondents to implement all the interim directions which were issued in this
case the Court directed the Union of India and the States to take more effective steps to implement the provisions
of the Dowry Prohibition Act, 1961 with particular reference to sections 3 and 4 thereof and the various rules framed
thereunder. In that process, they were also directed to activate the Dowry Prohibition Officers. The Central
Government was also directed to frame rules under section 9(2)(b) of the Act if they had not already been framed.
The Court further directed to ensure that submitting of the list and contemplated by the Act the Rules was strictly
implemented. The Union of India and the State Governments were directed to consider whether appropriate rules
cannot be framed for compelling males, seeking government employment, to furnish information on whether they
had taken dowry and if taken, whether the same had been made over to the wife as contemplated by section 6 of
the Act, calling for such information also from those already in employment. In order to arouse the conscience of the
people against the demand and acceptance of dowry, the Union of India and the State Governments were also
directed to take steps for the effective stepping up of anti-dowry literacy among the people through Lok Adalats,
radio broadcasts, television, and newspapers.1

In another matter2 before it, the Supreme Court directed the State Governments and Union Territories to furnish
counter-affidavits in respect of these matters, among others—
(i) Steps taken with respect to administration of the Act under section 9(2)(b) and steps taken to create
awareness regarding the provisions of the Act;
(ii) Whether rules had been framed under section 10 of the Act;
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Chapter III THE DOWRY PROHIBITION ACT, 1961

(iii) Number of Dowry Prohibition Officers appointed for each district under section 8B of the Act;
(iv) Whether Advisory Board had been set up as required under section 8B;
(v) Statistics with regard to cases registered.

10. Power of the State Government to make rules.—

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes
of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all
or any of the following matters, namely:—
(a) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of
section 8B;
(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under
sub-section (3) of section 8B.
(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is
made before the State Legislature.

PART II BATTERED WIVES: PROTECTION AGAINST CRUELTY AND DOWRY DEATHS

Battered Wives
“Statistically it is safer to be on the streets after dark with a stranger than at home in the bosom of one’s family, for it
is there that accident, murder and violence are likely to occur.” So said the English Writer, Sydney Brandon in 1976
about the situation in the west3. Domestic hooliganism and violence against married women, what has come to be
known as “wife battering” occur all the world over on a significant and disturbing scale1. In India, too, they “queen”
of the household, the ardhangini of her husband, his sahdharmini, his bharya, and equal participator with him in all
religious and spiritual rites and ceremonies, has become a worst target of social and economic exploitation. The
whole of her life is so structured that she has become subservient to the needs of man and has become a victim of
social and personal aggression.

Wife battering continues despite the abolition of the feudal rule that the husband has the privilege to beat his wife,
ill-treat her and do everything and anything with her and despite the constitutional guarantee of equality of law and
equal protection of laws. Our newspapers every day contain news of some incident where a married woman has
been murdered by her husband and inlaws, or where she has been forced to commit suicide because the brutality
of the acts of cruelty and violence became unendurable. The law’s long arm has failed to protect her when she had
been dragged by her husband from her parents’ home where she took shelter not being able to withstand the
onslaught of his violence and physical assault2. Equally unfortunately, such has been the social conditions and such
have been the prejudices in the man’s society that even personal liberty guaranteed to her under Article 21 of the
Constitution has no meaning to her.

In recent years all the world over, a considerable amount of attention has been given to the problem of domestic
violence and wife battering and new legal procedures and new legal techniques have been developed to face this
menace. In this regard, England has enacted Matrimonial Homes Act, 1967, which tackles the problem when on
marital breakdown the spouse who is excluded from the matrimonial home wants to live in it, or in a portion of it; the
Domestic Violence and Matrimonial Proceedings Act, 1976 and the Domestic Proceedings and Magistrates’ Courts
Act, 1978, to accord protection to battered wives.

India, too, has amended Indian Penal Code, 1860;Code of Criminal Procedure, 1973 and Indian Evidence Act,
1872 to provide protection to her against what may be called “crimes against her personality”3.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

Protection Against Cruelty

In the objects and reasons of the Criminal Law (Second Amendment) Bill it was stated, “The increasing number of
dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint
Committee of the Houses to examine the working of the Dowry Prohibition Act, 1961. Cases of cruelty by the
husband and relations of the husband which culminate in suicide by, or murder of, the helpless woman concerned,
constitute only a fraction of cases involving such cruelty.”

We have attempted to solve the problem of wife battering by creating a new offence under the Indian Penal Code,
1860 by inserting a new Chapter XXA. Section 498A,inter alia, provides a term of imprisonment which may extend
to three years as well as a fine for the offence of cruelty to wives. Explanation to the section defines cruelty to
married woman. Its two clauses provide:
(a) Cruelty to married woman includes wilful conduct which may drive the wife to commit suicide or an attempt
to commit suicide or may cause her injury or danger to her life, limb or health.
(b) Cruelty is defined to include such harassment of the wives which may coerce her or her parents or
relations to meet any unlawful demands of dowry by her husband and in-laws.

The use of the word “wilful” in clause (a) is significant. It is employed with a view to distinguish the case of a woman
who might be suffering with some mental ailment or illness which might cause depression and may goad her to
commit suicide without any wilful conduct on the part of her husband or in-laws. This will prevent unnecessary
harassment of the husbands who are not guilty of cruelty towards their wives yet may be victims of misfortune in
marrying such women.

It has been seen in Part I of this Chapter that a demand made for dowry is a dowry offence under the Dowry
Prohibition Act, 1961. The section in its language does not indicate that demand for dowry to be offence should be
made at the time of marriage. It appears that it will be an offence even if the dowry is demanded after the marriage.
Section 498A of the Indian Penal Code, 1860 specifically deals with this situation and lays down that if coercion is
exercised for demanding dowry after the marriage by the husband or in-laws of the married woman it would amount
to cruelty to her. The period during which this harassment of the married woman and her relations in coercing her or
her relations to meet any unlawful demand for dowry extends to the first seven years of marriage. If during this
period, her husband or her in-laws harass her by coercing her to bring dowry then it would an offence under this
section.

The present section makes cruelty to a woman by her husband or in-laws punishable with imprisonment for a term
which may extend to three years and also with fine. In other words, a wilful conduct of the husband or her in-laws is
of such a nature as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her,
and harassment of a woman by her husband or by any relative of her husband with a view to coercing her or any of
her relatives to meet any unlawful demand for property amounts to cruelty under the section and is punishable as
such.

Constitutional validity of section 498A of the Indian Penal Code, 1860 and section 113A ofthe Indian evidence Act,
1872.—Satyanarayana v. Soundaryavalli1is a good illustrative case of protection of married woman against cruelty.
The mother of the bride met the demand of dowry amounting to Rs. 30,000 by selling her property. But the lust for
dowry remained insatiable. The wife and her mother were harassed endlessly, treated with cruelty and were
tortured both physically and mentally. When the cup was full and wife’s suffering become intolerable, she filed the
complaint bringing the case under section 498A of the IPC leading to the charge-sheeting of the husband. Since the
husband challenged the constitutional validity of section 498A the High Court held that section 498A is valid and
remanded the case for trial.

In a case1, the Supreme Court observed that so far as charge under section 498A, IPC was concerned, there was
really no material to connect the appellant with offence. In fact the High Court had not even noticed any such
evidence which may justify the conviction of the appellant under section 498A, IPC. The appellant was, therefore,
held entitled to acquittal so far the charge under section 498A, IPC was concerned. In this case four witnesses had
consistently deposed about the manner in which the negotiations were held and how the demand of Rs. 20,000 was
reduced to Rs. 10,000 and the further fact that the said amount of Rs. 10,000 was paid. The only deficiency in the
evidence which the trial court found was that a witness did not state in her deposition that she had gone to hand
over the amount to the appellant. In view of the other evidence on record this fact by itself did not justify the
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Chapter III THE DOWRY PROHIBITION ACT, 1961

conclusion that the prosecution had failed to prove its case. Much was sought to be made of the omission on her
part to mention that she had gone to pay the amount. The finding recorded by the trial court completely ignored the
cogent and reliable evidence on record which proved the case of the prosecution that dowry was demanded and
paid. Such a finding ignoring relevant evidence could not be sustained even in an appeal against acquittal. I,
therefore, the conviction of the appellant under the Dowry Prohibition Act was held fully justified.

In yet another case the Supreme Court observed that the highly injurious and deleterious effect on the girl, her
parents and the society at large required legislative interference. It started with enactment of the Dowry Prohibition
Act, 1961, containing some penal provisions also. But as the evil could not be taken care of by this soft statute, the
Indian Penal Code was amended first by inserting Chapter XXA (containing the only section 498A) in it by the
Criminal Law (Second Amendment) Act, 1986 (46 of 1983); and then, by insertion of section 304B by the Dowry
Prohibition (Amendment) Act, 1986 (43 of 1986). Section 498A seeks to protect a married woman from being
subjected to cruelty by the husband or his relative. Section 304B is aimed at those who indulge in “dowry deaths”.
To give teeth to these provisions, Act 46 of 1983 inserted section 113A in the Evidence Act, permitting a Court to
presume, having regard to the circumstances of the case, that suicide by the woman was abetted by her husband
or his relative. Similarly, Act 43 of 1986 inserted section 113B in the Evidence Act requiring some presumption to be
drawn in case of dowry death. Amendment was also made in the Code of Criminal Procedure making the offence of
dowry death cognizable, non-bailable and triable by a Court of Session.2

Harassment for Dowry.— Kamini Sahnanii v. Purna Chandra Sahoo3 is a good illustrative case of wife’s
harassment by constant demand of dowry. In this case, the wife’s ornaments and other articles and goods were
kept in the custody of the husband. Soon after marriage, the husband and in-laws started making new demands for
dowry and when they were not met, the wife was thrashed, beaten up and turned out of the house. The court found
that wife was harassed by the husband and her in-laws by making demands of dowry. The court ordered the return
of articles and ornaments or monetary equivalent thereof, since the frame of the suit was for the return of articles.

Demand for Dowry as criminal offence and matrimonial offence of cruelty.— The criminal offence of cruelty as
defined in section 498A(ii) is distinct from the matrimonial offence of cruelty. The cruelty as criminal offence means
such harassment of the wife which may coerce her or her parents or relations to meet any unlawful demand for
dowry made by the husband or her in laws. The criminal offence of cruelty can lead to the punishment of the
husband and in-laws to jail term which may extend to three years and a fine may also be imposed. On the other
hand, persistent demand of dowry from her husband amounts to cruelty under the matrimonial law which entitles
the wife to seek the matrimonial relief of dissolution of marriage.

The prosecution under section 498A for the offence committed by prior to the enactment is not justified; Amrish
Kumar Aggarwal v. State of Uttar Pradesh, 2000 Cr LJ 1324 : 2000 All LJ 387: 1999 (2) All CJ 1187: 2000 (2)
Crimes 2 . See also Arvind Singh v. State of Bihar, (2001) 6 SCC 407 [LNIND 2001 SC 1078]: 2001 Cr LJ 2556:
2001 SCC (Cri) 2124 : AIR 2001 SC 2124 [LNIND 2001 SC 1078].

Harassment of wife by demand of dowry.— What amounts to harassment of the wife in connection with the
demand of dowry is well illustrated by Kamini Sahnanil v. Purna Chandra Sahoo1, wherein bride Kamini brought
with her gold and silver ornaments and other articles including household goods and utensils. All the articles goods
and ornaments were kept by the husband in his custody with the exception of some ornaments which were on her
person. As it happens in such cases, the lust for dowry of the husband and her in laws remained insatiable and
demands for dowry were made, and when they were not met, the harassment and ill-treatment became the lot of
the young bride till a stage was reached when wife felt that it was no longer safe to continue to live in the
matrimonial home. She informed her father requesting him to rescue her. The wife’s father wrote to her father-in-law
that he would like his daughter to come to his house. This was readily agreed upon by the father-in-law on two
conditions: (i) wife should sign a divorce-deed, and (ii) he should be paid Rs. 20,000 representing the amount that
he had spent in the marriage. Finding both the conditions unreasonable, the father rejected them with the result that
the wife continued to live in the matrimonial home, and her harassment continued unabated, till one night her
husband thrashed her, burnt her with a hot iron rod and threw her out of the matrimonial home. Upon this the
brother of Kamini brought her back to the father’s home. The brother before taking his sister home lodged a
complaint with the police. Thereafter Kamini’s father also sent a registered notice to the son-in-law.

In his reply to the registered letter, the son-in-law made allegations that while leaving the matrimonial home, his
daughter and son had stolen ornaments and other articles and goods. It was also alleged that his daughter left the
matrimonial home at his instigation as he did not like that both of them should continue to live together. It was
stated in the letter that “his evil desire was to get into the management of the properties of the son-in-law.” The wife
filed a civil suit for the recovery of her ornaments and goods or in the alternative for their cash value.
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The husband’s pleas were: (a) the wife had already taken away gold ornaments not only those which she brought
with her from her father’s home, but also eighteen and half tolas of gold from the matrimonial home, (b) the other
dowry items mentioned by her were not worth more than Rs. 3,000, and (c) that the goods, articles and cash that
was given at the time of marriage belonged to them both jointly.

The trial court disagreed with wife’s averment that gold ornaments were given by her to her husband and it also
held that goods, articles and cash given at the time of marriage belonged to them jointly. Only relief which the court
felt fit was to order the return of her wearing garments or an amount of Rs. 972.25 in lieu of the same. The trial
court also found that wife had taken away gold ornaments weighing twelve tolas.

The Orissa High Court, on appeal, disagreed with the findings of the trial court. P.C. Misra, J., observed that it
would be incongruous to say that a wife who was beaten up and thrown out of the house should have been allowed
by the husband to take away gold ornaments. It was also not possible for her to prove that she was severely beaten
up and thrown out as only witnesses to the sordid drama were her in-laws. In the result the High Court held that she
was entitled to the return of her gold ornaments or its equivalent money, assessed at Rs. 4,800 and also the price
of her garments.

This case clearly indicates that how difficult it is for the wife to prove her averments by independent evidence as
most of the time sordid drama takes place within the four-walls of the home.

Dowry Deaths
Dowry death has been made an offence by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) by inserting
section 304B in the Indian Penal Code, 1860. That section runs:

(1) Where the death of a woman is caused by any burns or body injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty
or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death
shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years
but which may extend to imprisonment for life.

By amending the First Schedule to the Code of Criminal Procedure, 1973, the offence of “dowry death” has been
made cognizable, non-bailable and triable by the Court of Session.

The Supreme Court in a case1observed that section 304B, IPC and section 113B of the Evidence Act were inserted
by the Dowry Prohibition (Amendment) Act (43 of 1986) with a view to combat the increasing menace of dowry
death. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths,
the Legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain
essentials. It is in this background that presumptive section 113B in the Evidence Act has been inserted.

Presumption under section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes
obligatory on the court to raise a presumption that the accused caused the dowry death. The essentials required to
be proved for raising the said presumption are that: (i) the question before the court must be whether the accused
has caused the dowry death of a woman, (ii) the woman was subjected to cruelty or harassment by her husband or
his relatives, (iii) such cruelty or harassment was for, or in connection with, any demand for dowry, and (iv) such
cruelty or harassment was soon before her death.

This view has further been taken in Sher Singh @ Pratapa v. State of Haryana2, where the Supreme Court has said
that once the concomitants of the section are established or shown or proved by prosecution even by
preponderance of possibility, initial presumption of innocence of accused is replaced by assumption of guilt. It is
now a very heavy burden on accused and he has to adduce very strong evidence to dislodge the same.

In another case, it was observed by the Supreme Court that section 304B, IPC was mainly introduced having
regard to the increasing menace of dowry deaths by burns and bodily injury or otherwise than under normal
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Chapter III THE DOWRY PROHIBITION ACT, 1961

circumstances and the insufficiency of the existing provisions of law to combat them effectively and also with the
laudable object of curbing the menace of dowry deaths with a firm hand. In order to attract section 304B, IPC the
court must be satisfied that: (i) the death of a woman must have been caused by burns or bodily injury or otherwise
than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon
before her death, the woman must have been subjected to cruelty or harassment by her husband or by the relatives
of her husband; (iv) such cruelty or harassment must be for or in connection with demand for dowry; and (v) such
cruelty or harassment is shown to have been meted out to the woman soon before her death meaning thereby the
proximity in point of time and not too remote or stale in point of time and relevance. The legislature has also taken
care to enact a statutory presumption as to dowry death by inserting section 113B to the Indian Evidence Act, 1872
to the extent that when the question is whether a person has committed the dowry death of a woman and it is
shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or
in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Further, the court said that the expression “soon before” is a relative term which requires to be construed in the
context of specific circumstances of each case and no hard-and-fast rule of any universal application can be laid
down by fixing any time-limit.1

This view has further been reiterated in Surinder Singh v. State of Haryana2, by stating that this term is a relative
term and to be interpreted from case to case. It requires proximity between cruelty based on dowry demand and
death should be established. Demand made for business of accused has connection with marriage.

While considering the quantum of punishment, the court must keep in view the background and intendment of the
Legislature so as to eradicate the evil practice of giving and taking dowry by prescribing deterrent punishment. This
is clear from the Objects and Reasons of the amending Act of 1986 (Act 43 of 1986). Consequent upon this
amendment, section 304B, IPC was introduced, in which the punishment is imprisonment for a term which shall not
be less than seven years but which may extend to imprisonment for life. Despite stringent law, the evil practice of
giving and taking of dowry remains unabated. On the contrary, it is menacingly on the increase. The conduct of the
accused is of vital importance while considering the quantum of punishment.3

In a case of unnatural death of married woman in her husband’s house within seven years of her marriage, ill-
treatment and harassment by the husband for not bringing sufficient dowry was established. The medical evidence
showed that the deceased died due to asphyxia as a result of smothering which is an unnatural death. No
explanation was offered by the husband as to how the deceased sustained several abrasions and contusions on
her body. It was held by court that in the circumstances, presumption of dowry death can be raised against the
husband. However, it was held that the mother of the husband who resided separately, did not stand to gain from
the demand of additional dowry and whose presence in the house at the time of the incident was not established
was entitled to benefit of doubt.4

In cases of dowry death and suicides, circumstantial evidence plays an important role and inference can be drawn
on the basis of such evidence. That could be either direct or indirect. It is significant that section 4 of 1961 Act was
also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from
the parents or other relatives or guardian of a bride. The word ‘agreement’ referred to in section 2 has to be inferred
on the facts and circumstances of each case. The plea that conviction can only be if there is agreement for dowry,
is misconceived. This would be contrary to the mandate and object of the Act. Definition of “Dowry” is to be
interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry and
section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This
makes it clear that even demand of dowry, on other ingredients being satisfied, is punishable. This leads to the
inference that when persistent demands for TV and scooter are made from the bride after marriage or from her
parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within
the meaning of section 304B, IPC. It is not always necessary that there be any agreement for dowry. In the instant
case, after a few days of the marriage, there was demand of scooter and fridge, which when not being met lead to
repetitive taunts and maltreatment. Such demands cannot be said to be not in connection with the marriage. Hence
the evidence qualified to be demand for dowry in connection with the marriage and in the circumstances of the case
constituted to be a case falling within the definition of ‘dowry’ under section 2 of 1961 Act and section 304B, IPC.1

In the instant case the prosecution witnesses, sister and brother-in-law of deceased deposed that deceased told
them that her husband was maltreating her in view of dowry demand, and that not being satisfied was harassing
her. When on a day before incident the husband came to take her back, she was reluctant but her sister sent her
with her husband. She went with the husband but with the last painful words that “it would be difficult now to see her
face in the future”. On the very next day, one day after she arrived at her husband’s place, the unfortunate death of
deceased look place. She died admittedly on account of total burn of her body. Admittedly, the incident of quarrel as
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Chapter III THE DOWRY PROHIBITION ACT, 1961

deposed was only a day before her death. There was direct evidence that on earlier day itself, there was quarrel at
the house of her sister with the deceased and her husband.

It was held by the court that the evidence would, on the facts and circumstances of the case, bring to an
inescapable conclusion that the aforesaid quarrel referred to by prosecution witnesses a day before actual death of
the deceased, cumulatively with other evidence constitute to be cruelly and harassment in connection with marriage
and that too at her own sister’s place which had direct correlation with the preceding evidence of repeated demand
of dowry. Thus, it a case covered both under sections 304B and 498A, IPC. However, it was open to the accused to
prove otherwise by means of evidence. But he had not been able to do so. Such burden is placed on the accused
with a purpose. Evidence also concluded harassment to the deceased within the meaning of section 498A,
Explanation (b), as she was repeatedly coerced for not meeting the demands leading to her mental torture and
agony which ultimately led her to commit suicide. Thus, the conviction of the accused could not be interfered with.
However, against the father-in-law and the mother-in-law the evidence was of a general nature. No convincing
evidence has been led that the deceased was subjected to cruelty by them. Therefore, benefit of doubt was
extended to them.

The Supreme Court had dwelt on the subject in some decisions and had clarified the law1 where death of a married
woman was caused by burns. While in Surender Kumar v. State (Delhi Administration) 2the trial court, High Court
and the Supreme Court were unanimous in finding the husband and inlaws guilty of burning the wife to death by
pouring kerosene on here, in State (Delhi Administration) v. Laxman3, the trial court and the High Court acquitted
the husband on similar charge but the Supreme Court found him guilty of the offence of burning his wife to death by
pouring kerosene on her and igniting it. These cases illustrate that unless our courts scan the evidence carefully
there is likelihood of culprits escaping punishment. In the social turmoil in which we find society, the following
observations of Ranganath Misra, J., are very apt:—

Every marriage ordinarily involves a transplant. A girl born and brought up in her natural family when given in marriage, has
to leave the natural setting and come into a new family. When a tender plant is shifted from the place of origin to a new
setting, great care is taken to ensure that the new soil is suitable and not far different from the soil where the plant had
hitherto been growing; care is taken to ensure that there is not much of variation of the temperature, watering facility is
assured and congeniality is attempted to be provided. When a girl is transplanted from her natural setting into an alien
family, the care expected is bound to be more than in the case of a plant. Plant has life but the girl has more developed
one. Human emotions are unknown to the plant life. In the growing years in the natural setting the girl now a bride has
formed her own habits, gathered her own impressions, developed her own aptitude and got used to a way of life. In the new
setting some of these have to be accepted and some she has to surrender. This process of adaptation is not and cannot be
one-sided. Give and take, live and let live, are the ways of life and when the bride is received in the new family she must
have feeling of welcome and by the fond bons of love and affection, grace and generosity, attachment and consideration
that she may receive in the family of the husband, she will get into new mould; which would last for her life. She has to get
used to a new set of relationships—one type with the husband another with the parents-in-law, a different one with the
other superiors and yet a different one with the younger ones in the family. For this she would require loving guidance. The
elders in family including the mother-in-law are expected to show her the way. The husband has to stand as mountain of
support ready to protect her and espouse her cause where she is on the right and equally ready to cover her either by
pulling her up or protecting her willingly taking the responsibility on to himself when she was in fault. The process has to be
a natural one and there has to be exhibition of co-operation and willingness from every side. Otherwise how would the
transplant succeed.
(emphasis author’s)

Dowry deaths occur not only when the husband or in-laws put the bride to death, but also when she is made to die
by abetment to commit suicide. State of Punjab v. Iqbal Singh1, Soni v. State of Gujarat2 and Harbans Lal v. State
of Haryana3, are illustrations of this cruel phenomenon.

In State of Punjab v. Iqbal Singh1, Mohinder Kaur, a school teacher, had married Iqbal Singh about eight years
earlier and gave birth to three children from him. Non-fulfilment of persistent demands of dowry by her parents
strained the relationship, and the husband started ill-treating her. Apprehending danger to her life, she wrote a letter
to police superintendent but investigation was kept in abeyance as parties had compromised. Thereafter, a deed of
divorce was also executed between the spouses. But pressure for dowry—a demand for thirty-forty thousand
rupees—continued to be made by the in-laws. False accusation were made against her and her husband was
instigated to beat her by her mother-in-law and sister-in-law. All this ill-treatment led Mohinder Kaur to commit
suicide along with her three children. In a letter, she wrote to her mother on the morning the day she committed
suicide, she stated that she was putting an end to her life and her children as they too would not be treated well
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Chapter III THE DOWRY PROHIBITION ACT, 1961

after her death. Thus, this harassed wife put herself and her three children ablaze on June 7, 1983. FIR was lodged
by her mother.

The trial court convicted the husband, mother-in-law and sister-in-law. It convicted the husband to seven years
rigorous imprisonment and a fine. The mother-in-law and sister-in-law to three years imprisonment and fine. On
appeal the High Court acquitted all of them as it felt that offence was not proved.

The case went to Supreme Court which did not agree with the High Court.

Ahmedi, J., referring to the question whether abetment to suicide had been proved, observed that “abatement” as
defined by section 107 among its ingredients consists of “instigation” to do a thing which is an “offence” and that the
literal meaning of the word instigate is to incite, set on, urge on, stir up, torment, stimulate, provoke etc. Pointing out
that the last straw on the camel’s back which drove her to suicide was the severe beating on June 6, 1983, a day
prior to her death.

The learned Judge referred to the changes effected in the law relating to dowry, under Indian Penal Code, 1860
andthe Indian Evidence Act, 1872. It noted that as crimes creating to dowry are committed in the privacy of
residential homes, and in secrecy, the Legislature introduced sections 113A and 113B in the Indian Evidence Act to
strengthen the hands of the prosecution, if certain foundation facts are established and if the death takes place
within seven years of marriage. After referring to the enactment of sections 498A and 304B of Indian Penal Code,
1860 and also adverting to section 306 the Supreme Court observed:

Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will
drive the woman to suicide and she actually does so the case would fall squarely within the ambit of section 306 of the IPC.

In conclusion the Supreme Court observed that in the peculiar facts and circumstances of the case, the trial court
rightly convicted the husband under section 306 and the High Court erroneously reversed the conviction.

In State of Uttar Pradesh v. Ashok Kumar1, a case of bride burning a young woman, aged about 25 years, died of
burns in the two room apartment of her husband. The marriage had taken place less than a year ago at their home
town. FIR was lodged by the father of the deceased-girl. It was proved that the accused persons namely,
deceased’s husband, his father and sister, were unhappy about the cash and articles given by way of dowry at the
time of the ‘tilak’ ceremony. The accused taunted, tormented and tortured the deceased for the insufficiency of the
dowry amount. A few days before the incident, while at their home town, there was heated argument and then the
husband of the deceased returned to the place of his posting without the deceased. The deceased entreated her
father-in-law to permit her to join her husband but the latter refused saying she will have to rot alone unless the
dowry amount was made good. Ignoring her father-in-law’s refusal, the deceased went to her husband. The father-
in-law and his daughter followed her. There all the three ill-treated her. The deceased was found blazing at about
2.30 or 2.45 a.m., on the fateful day. While she was ablaze, the three accused who alone were inside came out of
the room and stood in the verandah chit-chatting unconcerned about her plight. None of them tried to help the
deceased. Soon after that, the house was locked and the accused absconded. The witnesses to the incident were
persons living in the same building in which the deceased lived with her husband. The case also ultimately landed
in the Supreme Court. The trial court convicted all the accused to life imprisonment. The High Court did not agree
with the findings of the trial court and acquitted all the three accused. One of the reasons was that the names of
witnesses were not mentioned in the FIR. The High Court held that Meera committed suicide. Ahmedi, J., after
scanning the entire evidence observed that witnesses had no reason to falsely implicate the accused. There was no
reason to disbelieve their testimony. Absence of their name in FIR was also of no consequence. That was quite
natural because the father who rushed to the place of incident had not enquired of their names having regard to the
strain, stress and tension in which he was at the relevant point of time. The witnesses could not be said to be falsely
set up by father of deceased. The evidence of father of deceased regarding quarrels on account of insufficiency of
dowry was corroborated by evidence of witnesses. All this, coupled with the fact that accused persons absconded
after the incident leave no room for doubt that the three accused persons were the joint authors of the crime.

In Mulakh Raj v. Satish Kumar1, the deceased, a young lady of 20 years, yearning to have long and happy marital
life was exterminated hardly one year and five months after the marriage. As per doctor’s evidence, she died of
asphyxia, as a result of strangulation and that of 95 per cent. burns, post-mortem injuries, were found over the dead
body except the feet. Doctor’s evidence is clear, cogent and convincing. The death was due to asphyxia and not
due to suicide. From his evidence it was conclusively established that the death was due to asphyxia and that a
deliberate attempt was made to destroy the evidence of death by pouring kerosene on the dead body and burning
the dead body extensively with 95 per cent. The death was, therefore, homicide and not suicide.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

It was established from the evidence that the deceased and the husband alone were living in the upstair’s room.
The circumstances that the death took place in the bed room of the spouse, the attempt to destroy the evidence of
murder by burning the dead body; the unnatural conduct of husband, immediately after the occurrence; the false
pleas of suicide and absence from house are material relevant circumstances which would complete the chain of
circumstantial evidence leading to only one conclusion that the husband alone committed the ghastly offence of
murder of his wife.

In Paniben v. State of Gujarat2, again a case of bride burning, Mohan, J., very aptly and rightly, though lamentingly,
observed:

Everytime a case relating to dowry death comes up, it causes ripples in the pool of the conscience of this Court. Nothing
could be more heinous than this sort of crime. The root cause for killing young bride, or daughter-in-law is avarice and
greed. All tender feelings which alone make the humanity noble disappear from the heart. Kindness which is the hallmark of
human culture is buried. Sympathy to the fairer sex, the minimum sympathy is not even shown. The seedling which is
uprooted from its original soil and is to be planted in another soil to grow and bear fruits is crushed.

In this case the mother-in-law had developed such a dislike for her young daughter-in-law that one night she went
to the bed room of her daughter-in-law where she was sleeping all alone and poured kerosene over her and lit the
fire. On the hue and cry of the daughter-in-law, her husband and others rushed to the bed room and they tried to
save her. She was taken to hospital where she died. On the way she told the persons accompanying her as to what
happened. The mother-in-law was convicted to life imprisonment. Mohan, J., observed:

…sympathy is what is pleaded at our hands. We are clearly of the opinion that it would be a travesty of justice if sympathy
is shown when such cruel act is committed. It is rather strange that the mother-in-law who herself is a woman should resort
to killing another woman. It is hard to fathom as to why even the “mother” in her did not make her feel. It is tragic that deep
rancour should envelope her reason and drown her finer feelings. The language of deterrence must speak in that it may be
a conscious reminder to the society. Undue sympathy would be harmful to the cause of justice. It may even undermine the
confidence in the efficacy of law.

Harbans Lal v. State of Haryana1, is also a case of bride-burning. Soon after the marriage, the young bride was
harassed by her husband and mother-in-law for not bringing dowry and ultimately she was put to death by burning.
The defence was that it was a case of suicide and not murder. The trial court acquitted both the accused. But on
appeal both the High Court and Supreme Court, on appreciation of evidence found both the accused guilty of
murder.

Investigation of Dowry Deaths

The offence under section 498A of the Indian Penal Code, 1860 will be cognizable if information relating to the
commission of the offence is given to the officer in charge of a police station by the victim of the offence or a relative
of the victim of the offence or, in the absence of any such relative, by any public servant authorized in this behalf by
the State Government. It is further provided that no court shall take cognizance of the offence except upon a police
report of a complaint made by the victim of the offence or by her father, mother, brother, sister or her father’s
mother’s brother or sister or with the leave of the court by any other person related to her by her blood, marriage or
adoption. This has been achieved by inserting a new sub-section (3) to section 174 of thecode of Criminal
Procedure, 1973.

Section 174 of the Code of Criminal Procedure, 1973 already contains a provision which empowers a Magistrate to
make an inquiry into the cases of suspicious deaths. The new sub-section empowers the Magistrate to hold such an
inquiry when a woman dies while living with her husband and her in-laws or other relations of the husband during
the first seven years of her marriage. The Magistrate is empowered to enquire when—
(i) the case involves suicide by a woman within seven years of her marriage; or
(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a
reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman
has made a request in this behalf; or
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Chapter III THE DOWRY PROHIBITION ACT, 1961

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient to do so.

Ordinarily, death of a person in police custody raises a suspicion of torture by police. Under the new provision a
similar suspicion arises when a married woman dies while living with her husband or in-laws during the first seven
years of her marriage. “This is a warning to the husband and in-laws that the newly wedded wives coming to live
with them for the first time is a sacred trust. If they violate the confidence reposed in them by the parents of the
wives then their conduct would be judged by the same standard as the conduct of the police is judged in respect of
person in police custody. In both these cases the person in custody is under the overall powers of the custodians
and if such a person dies in such custody then a suspicion arises that the custodian must have ill-treated her and
this must have led her to commit suicide or the custodian must have murdered her.”

The new section 198A of the Code of the Criminal Procedure, 1973 lays down that no court shall take cognizance
of an offence punishable under section 498A of the Indian Penal Code (45 of 1860) except upon a police report of
facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her
father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the court, by any
other person related to her by blood, marriage or adoption. This provision is enacted to ensure that the husband
and the in-laws of the married woman are not harassed by a complaint lodged by a person who does not look kindly
to them or is enimical to them, and is not really concerned with the death of the married woman but motivated by an
ulterior purpose.

Then the offence under section 498A of the Indian Penal Code is made nonbailable, and, as it has been seen
earlier, it is cognizable only if the information is lodged with the police of the commission of such offence by a
relation of a deceased woman, or by a public servant authorized in this behalf.

Despite all these amendments and so much noise about dowry deaths, how callous sometimes our investigating
authorities are, has been clear relief by the Supreme Court in Lichhamadevi v. State of Rajasthan1. In this case the
mother-inlaw was charged to have burned to death her daughter-in-law. During the course of investigation, it was
found that she had poured kerosene on her daughter-inlaw and ignited it. She also admitted that her elder son
might have burned the wife to death. Jagannath Shetty, J., said that there are some disturbing features in this case
which we must mention before examining the merits of the matter. The investigation in this case did not proceed as
it ought to have proceeded and there appears to be soft pedalling of the whole case. During investigation the
appellant herself has stated that her son Madan might have burnt Pushpa. He is the elder brother of Jagadish.
Madan was also seen by the neighbours behind the kitchen and running down the stairs at the time when Pushpa
was in flames inside. The Police, however, did not prosecute him. Jagadish, the husband of Pushpa, appears to
have no human qualities. He was a silent spectator for all the dastardly attack on his wife. He had not even the
courtesy to take his wife to the hospital. He did not make arrangement for securing blood when Pushpa was
struggling for life. He positively dissociated himself as if he had nothing to do with Pushpa. His tacit understanding
with those who have perpetrated the crime is so apparent that it could not have been ignored. Yet he was not
charge-sheeted. This indifferent attitude of the investigating agency should be deprecated. Similarly, in Joint
Women’s Programme v. State of Rajasthan2, the Supreme Court found the investigation made by the police in a
dowry death case was totally inadequate. It directed the State of Rajasthan and State of Haryana, two States
involved in the investigation, to get conducted the investigation by an officer not below the rank of Superintendent of
Police.

The essential ingredient constituting the offence of bigamy is the “marrying” again during the lifetime of husband or
wife in contrast to the ingredients of section 498A which, among other things, envisages subjecting the woman
concerned to cruelty. The thrust is mainly on “marrying” in section 494, IPC as against subjecting of the woman to
cruelty in section 498A. Likewise, the thrust of the offence under section 304B is also on “dowry death”.
Consequently, the evils sought to be curbed are distinct and separate from the persons committing the offending
acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but also anyone who has undergone some or
other form of marriage and thereby assumed for himself the position of husband to live, cohabit and exercise
authority as such husband over another woman.1

Proof of Abetment to Suicide

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The Criminal Law (Second Amendment) Act, 1983 also amends the Indian Evidence, 1872 Act by inserting a new
section 133A. That section lays down, “When the question is whether the commission of suicide by a woman had
been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of her husband.” Obviously, cruelty has to be looked
as it is defined under section 498A, Indian Penal Code, 1860. This provision is meant to solve the problem of proof.
It has been found to be one of the most difficult things to establish that it is the husband or his relations who have
abetted her to commit suicide. To raise the presumption under section 113A ofthe Indian Evidence Act, 1872 the
following two conditions should be satisfied:—
(i) it must be shown that the married woman committed suicide within a period of seven years from the date of
her marriage, and
(ii) it must also be established that her husband or other relatives of the husband subjected her to cruelty.

Thus, it is evident that before any presumption of abetment of suicide by the married woman is raised against the
husband or his relatives it must be established that he or they subjected her to cruelty. However where the wife died
within 2½ years of marriage, death was under normal circumstances and there was no proof of demand for dowry
and cruelty, conviction was set aside.2The word “cruelty” is to be given the meaning that has been given to it under
section 498A of the Indian Penal Code, 1860 and not under the matrimonial law. The acts of cruelty by her husband
or her in-laws should be such that the married woman was driven to commit suicide or inflict on herself grave injury
or his or their acts or conduct caused injury or danger to her life, limb or health. Any demand of dowry by the
husband or his relatives would also amount to cruelty.

Let it be hoped that these measures would go a long way in solving the problem of battered wives or cruelty to
married woman. But to these measures appear to be no more than “first aid”; what this malady need is “intensive
care” which these measures do not provide.

Many a time culprits in dowry offences including of dowry death escape punishment because of non-availability of
evidence beyond reasonable doubt. In Lichhamadevi v. State of Rajasthan1, a dowry death case, the trial court
acquitted the accused mother-in-law as it considered the evidence before it not sufficient for conviction. The High
Court, on the other hand, found the evidence sufficient to convict the accused. The Supreme Court agreed with the
appreciation of the evidence by the High Court. The doctor who treated the young daughter-in-law clearly deposed
that the latter told him categorically that it was the mother-in-law who poured kerosene on her. The trial court said
that since it did not fall in the category of dying declaration it was not sufficient to convict the accused, despite the
fact that there was corroborative evidence. The Supreme Court said that Dr. Goel who received Pushpa (wife) and
admitted her in the emergency ward had testified that neighbours brought Pushpa and no relative accompanied her.
He had stated that Pushpa was in a serious condition. He has deposed that upon his questioning. Pushpa told him
that her mother-in-law had burnt her. It was true that Dr. Goel had not recorded this statement in the medical
register but that was no ground to disbelieve him. Dr. Goel was a disinterested person. The High Court had
accepted his version and there was no reason to reject it. Dr. Goel himself had treated the victim. Therefore, there
was no question of finding out from the Doctor whether Pushpa was in a position to give her statement or not.
Moreover, the statement before the Doctor was not recorded as a dying declaration. It was a communication by the
patient to the Doctor who treated her. He was a Government Doctor on duty in the hospital at that time. Nothing had
been elicited from his cross-examination that he was interested in or enimically disposed towards the mother-in-law.
PART III MAHR (DOWER)

Dower or mahr is a unique concept of law of Islam. No other system of law in the world recognizes anything like
mahr. In English common law dower was the portion of a deceased husband’s real property allowed to his widow
for lifetime. In France and Germany something akin to the English law dower existed known as matrimonial regime.
But it was nothing like mahr. The fact of the matter is that mahr has been wrongly translated a dower. But now that
word has become common, it is being used here also. Two misconceptions have clouded the concept of mahr
under Muslim law. The first misconception has been created by such statements as is found in Mulla’s Principles of
Mohamedan Law where mahr is defined as “a sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage”1. The other misconception is created by the statement that
dower (or at least the deferred dower) is payable by the husband to the wife on divorce. This misconception was
reinforced by the interpretation of the following clause in section 127(3)(b) of the Code of Criminal Procedure, 1973:
“The Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and she has received
the whole of the sum which under any customary or personal law is applicable to the parties, was payable on such
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divorce.” It was felt that as regards Muslim wife this referred to dower. And even a progressive and activist Judge
like Krishna Iyer, J., fell into trap when he said, “Payment of mehr money as a customary discharge, is within the
cognizance of that provision”2. But Chandrachud, C.J., rightly observed that “a sum payable to the wife out of
respect cannot be a sum payable on divorce”3.

Concept and Definition of Mahr under Muslim Law

The reasons for defining mahr as consideration of marriage lie in the history of the development of the concept of
dower. Though those reasons disappeared and became invalid as the concept of mahr developed and matured, the
temptation on the part of some writers to define mahr as consideration of marriage persisted. Historically, the idea
of sale was latent in mahr. In the pre-Islamic Arabia, two forms of marriage prevailed. One, the beena form in which,
on marriage, the woman did not accompany her husband to his home, but continued to remain in her own home.
This home husband frequented. It was customary to give a gift to the wife which was known as sadaq, and hence
the wife was known sadaqi, i.e., woman-friend or “girl friend”. In the second form of marriage, known as baal
marriage, the woman on her marriage accompanied her husband to his house and set up the matrimonial home
there. The husband in consideration of wife’s leaving her parent’s home paid some amount to her parents. Then
this amount was known as mahr and was therefore likened to bride price (akin to the concept as Asura form of
marriage among Hindus).

On the establishment of Islam in Arabia, the Prophet reformed the law of marriage, and combining sadaq and mahr,
as a sort of marriage settlement, he redeemed the marriage from the bride-purchase notion. Since mahr assumed
the form of a sort of marriage settlement, the important conceptual change that occurred was that the amount was
not paid to the parents of wife but to her. However, in Muslim Law there is nothing like matrimonial community of
property, and no dot or marriage portion, or the concept of dowry in the western sense4. It is submitted that, mahr,
broadly speaking, is something in the nature of a nuptial gift which a Muslim husband undertakes to make to his
wife. Conceptually it is inherent in the concept of Muslim marriage, and thus it is an integral part of marriage. Mahr
is thus neither a consideration for marriage, nor it is a dowry; it is not a bride-price, either.

Mahr is a unique concept of Muslim matrimonial law.

As early as 1886 in Abdul Kadir v. Salima1, Syed Mahmood, J., observed that mahr was the exchange or
consideration given by the man to the woman, but an effect of the contract imposed by law on the husband as a
token of respect for the wife. In 1916, in Hamira Bibi v. Zubaida2, Syed Amir Ali formulated it thus:

Dower is an essential incident under the Mussulman Law to the status of marriage; to such an extent that when it is
unspecific at the time of the marriage is contracted, the law declares that it must be adjudged on definite principles.
Regarded as a consideration for marriage, it is, in theory, payable before consummation; but the law allows its division into
two parts, one of which is called “prompt” and is payable before the wife can be called upon to enter into conjugal domicile;
the other “deferred”, payable on the dissolution of the contract by the death of either of the parties or by divorce.

In Syed Sabir Hussain v. Farsand Hussain3, Sir Sadi Lal called it the “legal responsibility of the husband”.

Some Muslim authorities have defined mahr as consideration for marriage and following these authorities, Mulla
defined it as “a sum of money or other property which the wife is entitled to receive from the husband in
consideration of marriage”4. In what context the Muslim authorities used the word “consideration” has been very
aptly explained by Mahmood, J.: “Mahr has been compared to the price in a contract of sale because marriage is a
civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer by way of analogy”.

However, the tendency to define mahr as consideration of marriage continues. In 1971, the Calcutta High Court,
emphasising the contractual aspect of Muslim marriage observed that dower was consideration for marriage paid
by the husband to the wife. It was further observed that transfer in lieu of dower is in the nature of hiba-bil-iwaz. It is
submitted that the following formulation of Abdul Rahim is very apt:—

Mahr is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not a
consideration proceeding from the husband for the contract of marriage but it is an obligation imposed by the law on the
husband as a mark of respect for the wife as is evident from the fact that non-specification of dower at the time of marriage
does not affect the validity of marriage”5.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

It is submitted that mahr is an integral part of marriage; it is inherent in the very concept of Muslim marriage. As
would be seen in the subsequent pages, mahr may be settled before or at the time of marriage. It may even be
settled subsequent to the marriage1. When mahr is settled by mutual consent of the parties after marriage, it is
known as mahr-i-tafweez. When the amount is settled by arbitration or by kazi (judge), it is known as mahr-i-takkin2.
Under Muslim law by mutual consent the amount of dower may be increased after the marriage3.

The uniqueness of the concept of mahr comes to clear relief from the fact that where mahr is not settled by the
parties, it is always implied. This is known as proper dower. “Proper dower” is always payable by the husband to the
wife. Such is the importance of mahr that even where there is a stipulation in a marriage contract that the wife had
abandoned all her rights to dower, the stipulation is invalid and the wife is nonetheless entitled to proper dower. It is
a different matter that a wife who has attained puberty has power to abandon the whole or part of the dower in
favour of her husband or husband’s heirs.

Dower may be specified by the parties at the time of marriage or after the marriage. If that is not done, it will be
fixed by law. When dower is fixed by the mutual consent it is known as specified dower. When it is not fixed by
mutual consent and therefore it is fixed by operation of law, it is known as proper dower.

Specified Dower: Fixed by the Mutual Consent of the Parties

All over the Muslim world, the dower is fixed by the mutual consent of the parties at the time of marriage or a little
before—mostly it is part of the marriage contract. Usually a written deed of mahr known as mahr-nama is executed.
However, no deed is necessary under Muslim law. When the bridegroom is minor or of unsound mind, the dower is
usually specified by his father on his behalf. Among the sunnis, the dower fixed by the father of the bridegroom is
binding on the son, but he is not personally liable for it. He is not liable as surety either4. On the other hand, among
the Shias if the son has no means to pay it, the father is liable5.

The Hanafi law mandates that the wife is, in all circumstances, entitled to receive a minimum amount of mahr,
which has been traditionally fixed at ten dirhams, notwithstanding her agreement to receive less. But despite
inflation all over the world that amount has not been increased. On the other hand, the Ithna Ashari law mandates
that an adult woman who is not of weak or facile disposition has power to validly forgo dower6. In such a case it is
essential that the agreement to give up mahr must be proved by a clear and cogent evidence6. Under the Ithna
Ashari law at the time of marriage with the consent of his wife the husband has also the power to reserve an option
to cancel mahr. Under the Shafi law, a wife who agrees to an amount of mahr even less than the minimum, is
bound by it and cannot claim its enhancement, unless the amount is destitute of any value1.

It is fairly usual in some Muslim marriages in India that for the purpose of glorification of the husband, a large
amount of dower is announced in public, but in private the real amount is fixed. In such a case the dower fixed in
private is the real amount and that alone can be enforced2. The amount of mahr announced in public has no
meaning. Under all schools of Muslim law, husband has power, at any time during the subsistence of marriage, to
increase the amount of mahr3.

Minimum and maximum amount of mahr.—It is only the Hanafis and the Malikis who lay down minimum amount
of dower. The Hanafis fix the minimum at ten dirhams and the Malakis at three dirhams. It seems that dirham
originally was a silver coin weighing 2.97 grams. In India ten dirhams have been valued at Rs. 3-44. Thus in both
the schools the minimum is minimal. No other schools of Muslim Law fixes any minimum amount of dower.

No school of Muslim law fixes any maximum amount of dower. A husband is free to fix any amount of mahr, even
much beyond his means or ability to pay or earn5, and he cannot wriggle out it by saying that amount is beyond his
means or unconscionable. May be, in order to prevent the husband from exercising his unilateral power of divorce,
a wife stipulates deliberately a very high amount of dower, and if the husband agrees to it he is bound by the terms
of the agreement6. The husband is not allowed to plead equity and cannot be allowed to plead that the amount of
dower is beyond his means or it is too excessive7. Under an Oudh (now part of the Uttar Pradesh) statute and a
statute of Jammu & Kashmir, the courts have been empowered to reduce the amount of dower if they find it
excessive or beyond the means of the husband. Section 5 of the Oudh Laws Act, 1876, runs:

Where the amount of dower stipulated for in any contract of marriage by a Muhammedan is excessive with reference to the
means of the husband, the entire sum provided in the contract shall not be awarded in any suit by a decree, in favour of the
plaintiff, or by allowing it by way of set off, lien or otherwise to the defendant; but the amount of the dower be allowed by
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Chapter III THE DOWRY PROHIBITION ACT, 1961

court shall be reasonable with reference to the means of the husband and the status of the wife. This rule shall be
applicable whether the suit to enforce the contract be brought in the husband’s lifetime or after his death.

The Jammu and Kashmir Muslim Dower Act, 1920 contains a similar provision.

Both the statutes apply to the specified dower. Obviously they cannot apply to proper dower. The Oudh Law applies
only to a husband who is a resident of Oudh and not to an outsider who marries a woman of Oudh1. The statute
applies to all Muslim male residents of Oudh irrespective of the fact as to which school they belong2. The same is
the position under the Jammu and Kashmir statute.

Under both the statutes the court will take into consideration the means of the husband not at the time of marriage
but at the time when claim of dower is made3. Such is the man’s world that under both the statues or any provision
of Muslim law, the courts have no power of increasing the amount of dower, even if they find it to be ridiculously
low. It is immaterial that the husband happens to be affluent and the wife also comes from an affluent family.

Mahr: Money or mal.—Mahr may be given in form of money. It may be in the form of any other type of property.
Usually it is in form of a sum of money. But in every case the thing given in dower must have value, must be
reasonably certain. Under Hanafi law anything which falls within the meaning of mal and has value may form
subject of dower4. Even instruction in Koran may be subject-matter of dower5. Undoubtedly, it can also be any
immovable property, land or house. When immovable property worth Rs. 100 or more is given to her, it must be
under a registered-deed. But if she is put into possession, she cannot be dispossessed as then section 53A of the
Transfer of Property Act, 1882 would come into operation6. A mere promise to do or to abstain from doing
something cannot constitute the subject-matter of mahr. Under the Ithna Ashari and Ismaili laws husband’s
personal service may constitute the subject-matter of mahr, but it is not so under the Hanafi law. Anything given or
agreed to be given by the husband to the wife’s father or some other relation is not mahr7. It may constitute dowry
under the Dowry Prohibition Act, 1961. On the other hand, the subject-matter of mahr (whether monetary or
proprietary) is an exclusive property of the wife and not an iota of it belongs to her husband, parents or any other
person, and it is not dowry in terms of the Dowry Prohibition Act, 1961.

Dower: When Payable—Prompt and Deferred

Ordinarily, the specified dower is divided into two parts: (i) Prompt Dower and (ii) Deferred Dower. Muslim law
grants full freedom to the parties and division of dower into prompt and deferred is not mandatory. They may agree
that the whole will be payable at the time of the marriage or soon thereafter, or they may stipulate that the whole will
be payable on the dissolution of marriage or at the demand of the wife1 or on the happening of certain event (such
as when husband takes a second wife)2. They may also stipulate that one part will be payable soon after marriage
or before its consummation and the other part on dissolution of marriage.

When mahr is payable immediately after the marriage or at any time on the demand of the wife, it is known as
prompt dower. When the amount of dower is payable on the happening of a contingency or when it is stipulated that
it will be payable on dissolution of marriage, it is known as deferred dower. Whatever be the stipulation between the
parties, if dower had not already been paid, it must be paid on dissolution of marriage—whether the marriage is
dissolved by death or divorce.

Ordinarily, which part of the dower is prompt and which is deferred is fixed in the contract, i.e., mahr-nama. Usually
one-half of the amount is fixed as prompt and the other half as deferred. But there is no hard and fast rule. The
entire matter rests on the volition of the parties. It is customary to pay the prompt dower immediately on marriage,
or in any case, at any time after marriage whenever wife demands it.

Where parties have not stipulated as to which part of the dower is prompt and which part is deferred, the Shias hold
that the whole amount is prompt3. On the other hand, the Sunnis take the view that in such a case one-half is
prompt and the other half is deferred. In Sheik Mohammad v. Ayesha4, the Madras High Court observed that in the
absence of any specific contract, the entire amount should be presumed to be prompt, irrespective of the fact
whether parties are Shias or Sunnis. A Full Bench of the Lahore High Court in Nasiruddin v. Amatul5, said that the
question may be determined on the basis of usage or custom of wife’s family. In the absence of any usage or
custom, one-half should be presumed to be prompt and the other half deferred6. Proportion of deferred and prompt
dower may be different in different cases7.
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Chapter III THE DOWRY PROHIBITION ACT, 1961

The deferred dower is payable on the expiry of the stipulated period upon which it is made payable or on happening
of the specified contingency on the happening of which it is made payable. In all events, it is payable on the
dissolution of marriage. The salient feature of prompt dower is that it is realizable and payable at once after the
solemnization of the marriage, and till payment is made the wife has the right to refuse to have conjugal relations.
The Hedaya laid down:

The wife has the right to deny her person (to her husband) or refuse to go on a journey with him until she receive the
dower. Her right in the consideration is the same as that of her husband in the object of the consideration (his conjugal right
over her person) as in sale. The husband has no power to prevent her from travelling or going out of his house and visiting
her friends until, he has paid the whole exigible dower, because the right of restraint is given to a person who has a right
and he has not the right to secure fulfilment before rendering fulfilment himself1.

It is a settled law that a wife, who has not been paid prompt dower, has the right to refuse to live with her husband
or admit him to sexual intercourse, and if the husband sues for restitution of conjugal rights, his suit cannot
succeed. But if consummation of marriage has taken place, then husband’s suit for restitution cannot be dismissed
on the ground of non-payment of dower. Abu Yusuf and Imam Muhammad considered the surrender of wife to her
husband as bearing an analogy to delivery of goods in sale and therefore took the view that nonpayment of dower
to the wife was a valid ground for her resisting cohabitation. But, if she had made herself available for
consummation of marriage, she cannot resist her husband’s suit for restitution of conjugal rights on the ground of
nonpayment of dower. Mahmood, J. observed:

… after consummation of marriage, non-payment of dower even though exigible, cannot be pleaded in defence of an action
for restitution of conjugal rights; the rule so laid down having no effect upon the right of the wife to claim her dower in a
separate suit2.

In our submission, Amir Ali has taken a progressive and socially just view. He holds that none of the authorities
support the proposition of the Disciples that the woman whose prompt dower remains unpaid, but who once
cohabited with her husband, may be compelled to cohabit against her will if she refuses cohabitation in order to
extract payment of such dower3. On the other hand, Mulla says that in such a case decree for restitution of conjugal
rights should be passed conditionally on payment of prompt-dower4. It is submitted that this seems to be a better
view.

Proper Dower
We have seen that the outstanding aspect and socially a very desirable aspect of the concept of dower that even
where the parties have not stipulated for any dower, dower is, nonetheless, payable by the husband to the wife,
except under the Ithna Ashari law where the adult wife can agree not to receive any dower. Otherwise under all
other schools of Muslim law, even where she has contracted out the dower, she is entitled to it. There is no
estoppel against the right of mahr. It is because where dower is not stipulated in the marriage contract, it is implied
by law. This is known as proper dower or customary dower or mahr-i-misl. The proper dower has to be ordinarily
the same as has been settled for women in her father’s family, such as her sister, paternal aunt or paternal parallel
cousin, who are more or less equal to her in regard to age, beauty, virginity, education, character, financial status,
etc. “The proper dower of a woman is regulated by a regard to the nobility of her birth, the beauty of her person and
the custom of her female relations”1. In fixing the amount of proper dower regard must be paid to women who are
equal to her in knowledge, lineage, wealth, understanding and such like. This implies that the mahr of those women
in his father’s family who were not so equal to her will not be taken into account. According to the Sunni authorities,
the proper dower is to be fixed with reference to the social position of her father, and her own personal
qualifications, and considering the amount of dower that has been given to her female paternal relations, such as,
consanguine sister or paternal aunts. Where no such analogies are available from women of her father’s family, the
court will inquire about the custom among strangers occupying the same rank in life and under similar
circumstance2. For fixing dower, the Muslim authorities do not favour taking into consideration the husband’s social
position or status3.

On the other hand, the Shia law is different. Under the Shia law proper dower cannot exceed 500 dirhams4—the
traditional dower. (The amount of dower fixed on the daughter of the Prophet.) Under the Shia law if either party
dies before the consummation of marriage and no dower has been stipulated in the marriage contract, the wife is
entitled to no dower; the court has no power to fix proper dower in such a case. She is not entitled to a present
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either5. It may happen that at the time of marriage fixation of dower has been left to the discretion of either party. In
such a case though the husband has power to fix any amount of dower, the wife has no power to fix it more than
500 dirhams5. Under the Shia law, proper dower may fall into the following three categories:—
(i) Proper dower, the mahr-i-misl, the dower of an equal,
(ii) Specified dower, mahr-i-musamma, and
(iii) Traditional dower, i.e., the amount of dower fixed for the Prophet’s daughter, Fatima.

Remission of Dower
Muslim law accords freedom to the wife to remit the whole or part of the dower in favour of the husband or his heirs.
It is essential that the wife exercising the power of remission must be adult and of sound mind. There is some
conflict of opinion as to whether the age of majority is to be reckoned under the Indian Majority Act, 1875 or under
the Muslim law. The Patna and Madras High Courts hold the view that the age of majority is to be determined under
the Indian Majority Act, 1875,i.e., completion of age of eighteen years6. The Allahabad High Court, on the other
hand, takes the view that the age of majority is to be determined under Muslim law, that is attainment of puberty1. It
is submitted that since remission of dower or any part of it is a dealing with property, a sort of a gift, the age of
majority should be reckoned under the Indian Majority Act, 1875.

Under Muslim law remission of dower may be with consideration or without consideration. In either case, to be
valid, it should be with the free consent of the wife, without any coercion or undue influence. Thus a remission of
dower made by a wife when she is under mental distress, such as when her husband is on death-bed or had died,
the consent will not be ordinarily treated as free2.

The remission of dower may be conditional. She may agree to receive an annuity by foregoing her claim for dower3.
Acceptance of the remission of dower on the part of the husband or his heirs is necessary4.

Confirmation of Dower
No express confirmation of dower is required. Under the Hanafi law dower stands confirmed in the following
manner:—
(a) on consummation of marriage,
(b) on valid retirement, and
(c) on the death of either party, irrespective of the fact whether the marriage was consummated or not.

Under the Shia and Shafaii laws, the dower is confirmed either on the consummation of marriage or on death of
either party. Valid retirement does not confirm it.

Right to dower on its confirmation.—In all the aforesaid three cases the dower becomes vested in her. In the
former two cases, she is entitled to recover the prompt part of the dower. In the latter case she can realize the total
amount of dower. On confirmation of the dower, the entire dower, prompt as well as deferred, becomes her property
and she may deal with it in any manner she likes. She is free to assign it or transfer it in any manner. It has the
character of specified debt against the husband.

Once dower is confirmed, it cannot be forfeited on any ground whatever. This has become her property and her
misdeeds cannot entail its forfeiture. It vests in her howsoever gross may be her misconduct—she might be guilty of
adultery or apostasy5 or even murder—she may even be guilty of murdering her own husband. It is also not lost on
her death. On her death it devolves on her heirs.

Right of dower when it is not confirmed.—Where dower is not confirmed by consummation or valid retirement
and the parties separate, then under the Hanafi law, she is entitled to half of the specified dower. If it has not been
specified, then she is entitled to a present only, if the husband is responsible for separation. If she is responsible for
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Chapter III THE DOWRY PROHIBITION ACT, 1961

the separation, she is entitled to no present. For instance, where a husband divorces an apostate or adulterous
wife, she is not entitled to even a present.

The quantum of present depends upon usage.

Where dower is settled after the marriage, and parties separate before consummation, then also the wife is entitled
only to a present and to no portion of the dower1.

The Shia law is slightly different. Where dower is specified whether before or after marriage—and separation takes
place before the consummation of marriage, the wife is entitled to half of the dower. Where dower is not specified,
and separation takes place before consummation of marriage, the Shia law holds that the wife is entitled to a
present, the amount of which is determined on the basis of the position and means of the husband. In the language
of the Sharaya:

No woman, however, is entitled to a present, except one for whom no dower has been settled, and who has become
separated from her husband before consummation.

On the other hand, the Shafiis take the view that in every case of separation, the husband is bound to make a
present to his wife.

Recovery of Dower
Conceptually, dower is in the nature of a debt. It is like any other actionable claim. She can assign it or recover it
just like any other debt. But it is not a secured debt. It is like any other unsecured debt, and wife must stand in the
queue along with other creditors of the husband. But there is a very important distinction. If she is in possession of
her husband’s property, she can retain the possession till such time that her dower debt is recovered out of the
usufruct of the property or payment of it is made to her.

The matter, from the point of view of recovery of dower, may be examined under the following heads:—
(a) Dower as a debt;
(b) When dower may be a charge; and
(c) Right of retention of possession of husband’s property, if she happens to be in its possession.

Dower as a debt.— One remedy on non-payment of prompt dower is that the wife can refuse conjugal rights to the
husband, and it is a complete defence to her husband’s suit for restitution of conjugal rights. At the same time if on
account of non-payment of dower, the wife is living separately from her husband, he is bound to maintain her. In the
case of minor wife, the guardian has the power to refuse the husband to take her to the matrimonial home till the
dower is paid. In addition to these measures, the wife can of course take recourse to direct method of filing a suit for
the recovery of her dower. Dower being a debt on the husband, it can be recovered by the wife from him when he is
alive or from his estate after his death. The wife can recover this amount even after the dissolution of marriage;
dissolution may be on account of divorce or death. Not merely she herself can recover the dower amount, but, on
her death, her heirs can also recover the same. The wife can recover the dower amount by filing a civil suit against
her husband or against the heirs of her husband after his death.

On the other hand, since deferred dower falls due on the happening of a stipulated contingency or on the
dissolution of marriage, a suit for its recovery can be filed only when it becomes due. Once the claim of deferred
dower arises she can recover it from her husband when he is alive or against his heirs when he is dead. In Kapore
Chand v. Kidar Nissa Begum1 the Supreme Court formulated the following three propositions:
(i) The widow is like any other creditor of the husband and cannot, therefore, claim any priority for her dower-
debt over other creditors.
(ii) The widow’s claim for dower-debt has priority over the claim of heirs. But, it seems, if she omits to put up
her claim for dower and allows a person to take his legacy from the estate of the deceased husband, she
cannot afterwards retract her assent2. She has been guilty of laches and must suffer for it.
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(iii) The heirs of the deceased husband are not personally liable for the dower-debt of the widow. They are
liable only if they have inherited husband’s property. The amount of the dower-debt can be realized ratably
from their shares in the estate.

Dower as a charge.—The dower-debt is an ordinary debt and it is not a charge on husband’s estate. However, a
charge on husband’s estate can be created by agreement or a decree of the court3. Whether or not and in what
circumstances the court should create a charge on the estate, is not yet settled. But it seems to be clear that if a
charge has been created by a decree of the court, the charge is enforceable4. According to Mulla, although it is
within the competence of the court to create a charge, it should not do so ordinarily, as thereby the dower gets
priority over the debt of other creditors, and therefore, he suggests that what the court should do is to pass a simple
money decree5. It is submitted that if it accepted that the policy of law is to help the wife, evidently a weaker section
of the society, to recover the amount of dower, the court’s power to make the dower-debt a secured debt should be
without any fetters. The protection of women and other weaker sections of the society is a constitutional mandate.
Clearly, the purpose of making the dower-debt a charge on the estate of the husband is to give her priority over the
unsecured debt of other creditors. The protection of the interest of the widow should be the paramount
consideration before the court, and therefore the court’s power should not be inhibited by any other consideration.

Right of Retention.—Like dower itself, the right of retention of possession of her husband’s property is a unique
aspect of Muslim law. It means that a woman whose marriage has been dissolved by death of her husband or by
divorce, and who has been in possession of her husband’s estate, can continue to retain that possession till her
dower-debt is recovered out of the usufruct of the estate or payment of dower is made to her. Obviously, the right of
retention of possession of her husband’s estate cannot be availed of during the subsistence of marriage, unless it is
proved that there is a contract between her and her husband which allows her to have a right of lien of possession
over husband’s property.

The right of retention belongs to a woman, whose marriage has been dissolved. Thus, a widow as well as divorced-
wife can exercise this right. It is submitted that some text-book writers who discuss the subject under the head
“Widow’s Right of Retention” do so erroneously.

What is the nature of the right of retention has been explained in Maina Bibi v. Vakil Ahmed1, by the Privy Council:
The possession of property being once peacefully acquired, the right of the widow to retain it till her dower-debt is
paid is conferred upon her under the Muslim law. It is not exactly a lien, nor a mortgage. The widow who holds
possession of her husband’s property until she has been paid her dower has no interest or estate in the property as
a mortgagee has under a mortgage. In this case on the death of her husband in 1870, the widow, Maina Bibi,
entered into possession of her husband’s estate. In 1902 some heirs of her husband filed a suit to recover
possession of the property falling to their share. The main defence of the widow was that she was in possession of
the estate in the exercise of her right of retention till her dower-debt was paid, and since her dower-debt had not
been paid, she could retain possession. A decree was passed in favour of the heirs on the condition that they would
take possession of the property only when they had paid a sum (specified in the decree) together with interest to
the widow towards the discharge of their portion of dower-debt. Since no amount of dower was paid to her, she
continued to be in possession till 1907 when she made a gift of the property. On the gift being challenged by the
heirs, the Privy Council observed that under Muslim law a widow whose dower-debt had not been discharged had
only a right of retention of the property of her husband already in her possession till her dower-debt was paid, but
she had no right to alienate it for value or gratuitously or to deal with it in any other manner.

Her possession should be lawful.—It is a mandatory requirement of law that the widow’s possession must be
lawful. No fraud or force should have been exercised in obtaining possession2. However, there is a controversy on
the question whether the widow should have taken possession with the consent of her husband or his heirs. The
controversy owes its origin to some observations made by the Privy Council in Hamira Bibi v. Zubaida Bibi3. The
High Courts of Allahabad, Calcutta and Patna have taken the view that her possession must be with the consent of
her husband or his heirs1. On the other hand, the High Courts of Bombay and Madras have taken the view that no
such consent is necessary2. It is submitted that if the perspective is clear, i.e., the policy of law is to help a hapless
widow whose dower has not been paid, then the latter view is preferable. If the wife was in possession of her
husband’s property at the time of his death, the presumption is that she acquired the possession lawfully and her
husband’s consent may also be implied3. In Abdul v. Mustaq4, the Allahabad High Court held that if in mutation
proceedings the name of widow was entered into the record of right with the knowledge of the heirs, their consent
would be implied.

It is an established proposition that once a widow lawfully acquires possession, she has the right to retain it, until
her dower-debt is satisfied. She has the right to retain the usufruct of the property towards the satisfaction of her
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dower-debt, but she should maintain full and correct account of all the income, profits, or usufruct of the property.
She is accountable to the heirs5.

The right of retention entitles the widow to remain in possession, and if she is dispossessed unlawfully, by deceit or
fraud, she has the right to recover it6. The period of limitation for recovery of possession of the immovable property
is 12 years from the date of dispossession, and in respect of movable property, it is three years from the date on
which she learned as to who has taken possession.

The right of retention does not confer any title on her7. The title to property vests in the heirs, and if widow is one of
the heirs (which she is), the heirs will include her also. But widow’s right as an heir should not be confused with her
right to retain possession of the estate till her dower-debt is satisfied. As an heir, she has the rights and remedies of
an heir which are distinct from her rights and remedies of a widow whose dower-debt has remained unsatisfied.

The right of retention does not bar her filing a suit for recovery of the debt.

Suit for recovery of dower-debt.—The fact that the widow is in exercise of her right of retention of possession of
her husband’s property does not bar a suit by her against the heirs of the husband to recover her dower-debt. In
such a suit she should offer to give up the possession of the estate in case a decree is passed in her favour8. She
cannot retain the possession as well as have a decree for dower-debt in her favour6. If a widow files a suit for the
recovery of part of her dower-debt, it seems that in view of rule 2, Order II of the Code of Civil Procedure, 1908, she
cannot file another suit for the recovery of the balance, as the implication of such a suit is that by suing for the part
she has relinquished her claim for the rest. But, It is submitted that if she sues an heir against whom only a part of
the dower is due, then there is nothing to prevent her from suing other heirs in a subsequent suit.

Out of her right of retention of possession, the following two obligations arise on her part:—
(i) she is liable to render full accounts of all realizations made by her out of the income of the estate, and
(ii) she has no right of alienation.

Liability to render full accounts of income.—Since the widow has merely the right to retain possession of her
husband’s estate, and satisfy it out of the income or usufruct of the estate, she can retain possession only till her
dower-debt is satisfied. Thereafter she must give possession of the property to the heirs. From this it is obvious that
she must maintain full accounts of the income and render the same to the heirs1. She is also entitled to
compensation for forbearing to enforce her right to recover the dower-debt. Such compensation can be in the form
of interest at the market rate on the principal amount of dower2. Ofcourse, the widow has power to give up her right
to compensation3.

She has the right to satisfy her dower-debt out of the rent, profit, income or usufruct of the property in her
possession.

No right of alienation.—Since her right of retention is merely a right to retain possession till her dower-debt is
satisfied, she cannot alienate the property or any portion of it for the satisfaction of her dower-debt. She cannot
alienate it gratuitously or for value4. At the same time, it should be noticed that she is an heir of her husband also,
and if she alienates the property in that capacity, the alienation will be valid to the extent of her share in the
property. But any alienation made by her will not affect the shares of other heirs, and to that extent the alienation
will be void.

In case she makes an alienation but retains the possession of the property, such as when she executes a
mortgage-deed without giving possession to the mortgagee, the heirs have a right to get a declaration that the
alienation is void, but they cannot recover possession of the property. The possession will remain with her. But if on
alienation she has also parted with the possession, and when they sue for declaration that alienation is null and
void, they, immediately on the passing of the decree in their favour, become entitled to possession. In such a case
possession cannot be restored to the widow, since she has voluntarily transferred it to the alienee5.

Heirs’ right vis-a-viswidow’s right of retention.—The right of retention of the widow does not prevent the other
heirs from exercising their right of alienation. If they alienate, the alienation will be valid to the extent of their shares,
but the alienee will take the property subject to her right to recover her dower-debt and the alienee cannot disturb
their possession till he pays the proportionate amount of dower-debt.

Similarly, the widow’s right of retention does no prevent the heirs from exercising their other rights over the
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property. The heirs have the right to recover the possession of their respective shares in the property, provided they
pay the proportionate amount of dower. Thus, when an heir files a suit for the recovery of the possession of his
share of property, the court will pass a decree in his favour subject to his paying the proportionate amount of dower-
debt within the period specified in the decree. For instance, a decree of possession is passed in favour of an heir
with a direction that he should pay his share of dower-debt within a specified period, and the heir fails to pay the
amount. Consequently, the suit is dismissed. The dismissal of the suit in such circumstances does not create a bar
of res judicata, or any other bar for a subsequent suit for possession when the dower-debt has been satisfied out of
the rents and profits of the property or otherwise. A decree obtained by the creditors of the heirs for possession of
the property cannot be enforced against the widow so long as her right of retention subsists1.

Right of retention: When lost.—The widow will lose her right of retention in the following circumstances:—
(a) when out of the income, profit or usufruct of the property, her dower-debt has been satisfied;
(b) when she alienates the property to the alienee and hands him over the possession; and
(c) when she voluntarily hands over the possession of the property to the heirs.

Rights of retention: Whether heritable and transferable.—The question whether right of retention is heritable
and transferable remains still unresolved. One view is that, since the right of retention is a personal right, it is
neither transferable for value or gratuitously; nor is it heritable12. According to the second view, the right of retention
is not merely a personal right but it is property and, therefore, it is both transferable and heritable3. The Allahabad
and Bombay High Courts have expressed the view that the right of retention is a heritable right4. These High Courts
have left open the question whether the right is also transferable.

The next question is: whether the right of retention can be transferred independently of the dower-debt? The
Allahabad and Patna High Courts have taken the view that the right of retention cannot be severed from the dower-
debt, and thus if transfer of right or retention is made, the dower-debt gets transferred automatically1.

Jurisdiction of the Court

In which court the suit for dower-debt could be filed? It can obviously be filed at the place where the husband is
residing or resided before his death. It can also be filed at the place where the heirs are residing. In Nasra Begum v.
Rizwan Ali2, the Allahabad High Court has held that the place where the agreement to pay dower was entered into
will also be the proper place where suit can be filed. But suppose the marriage of the parties took place at place X,
the marriage was consummated at place Y and thereafter the parties set up matrimonial home at place Z. It is
submitted that the wife can file a suit for the recovery of dower at any one of these places.

Period of limitation
Under the Limitation Act, the period of recovery of dower is three years from the date of the death of her husband.
But if she is in possession of her husband’s estate in the right of retention, she can retain it till her dower is paid.
There is no period of limitation in such a case3.

Dowry and Dower

Section 2 of the Dowry Prohibition Act, 1961 lays down that the definition of ‘dowry’ does not include dower or mahr
in the case of persons to whom the Muslim personal law (Shariat) applies. It seems that this exception was created
in favour of the Muslims in view of the prevailing definition of mahr that it “is a sum of money or other property which
the wife is entitled to receive from the husband in consideration of marriage”. But, as has been submitted earlier
that this is not so and that mahr is an integral part of marriage and it is paid as a mark of respect. It is also not a
sum of money which has been received by a woman on divorce under any customary or personal law within the
meaning of section 127(3)(b) of the Code of Criminal Procedure, 1973. In this view,mahr cannot be covered under
the definition of ‘dowry’ even if the exception is not there. In the cogent words of Chandrachud, C.J.:

…But, the fact that deferred mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is
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payable ‘on divorce’. Even assuming that, in a given case, the entire amount of mahr is of the deferred variety payable on
the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a
convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the
payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which
occurs in section 127(3)(b) of the Code. If mahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce
dissolves the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described
as an amount payable in consideration of divorce. The alternative premise that mahr is an obligation imposed upon the
husband as a mark of respect for the wife is wholly detrimental to the stance that it is an amount payable to the wife on
divorce. A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark
of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect
cannot be a sum payable ‘on divorce’.

PART IV SPOUSAL CRIMINAL BREACH OF TRUST

The dowry evil has become so pervasive that, psychologically, some think that whatever is given to the bride and
bridegroom singly or jointly at the time of marriage or thereabout is dowry, and particularly, when it is given from the
side of bride. It is over-looked that dowry may also be given from the side of bridegroom when he pays to the
bride’s father something in the nature of bride-price, such as in asura marriage. The former was the view taken in
some decisions of the Punjab and Haryana High Court1 as well as by the Supreme Court in Pratibha Rani v. Suraj
Kumar2. It is submitted that since these cases were mainly concerned with the question whether a husband who
does not return the articles given to the bride at the time of marriage, on the demand of the wife, is guilty of criminal
breach of trust under sections 405 and 406 of the Indian Penal Code, 1860 it is often overlooked that there is a
clear-cut distinction between what is voluntarily given to the bride at the time of marriage or thereabout and what is
given to her or her in-laws on the demand of her husband or in-laws under the threat, duress or under apprehension
(thus involuntarily) that if the demand will not be met, the engagement of the girl will not take place or, if
engagement had already taken place, the marriage will not be solemnized. Sometimes such demands are made
when the barat (marriage party) reaches bride’s house and more often at about or during the time or even in the
midst of the performance of ceremonies and rites of marriage. The Hindu authorities have always called the former
as stridhan and, since they did not countenance the latter, they did not give these demands any name. It is the
Dowry Prohibition Act, 1961 which makes things also stridhan (section 6 of the Dowry Prohibition Act, 1961).

Now here the following three matters are being discussed:—

(i) Presents made at or about the time of marriage or subsequently to the bride.
(ii) Dowry given to the son-in-law or in-laws at or about or subsequent to marriage.
(iii) Whether a husband, who refuses to return her stridhan, guilty of criminal breach of trust within the meaning
of sections 405 and 406 of the Indian Penal Code, 1860.

Stridhan : Presents Made at or about the Time of Marriage

Irrespective of the quantum of stridhan, Hindu law has, from the very beginning, recognized a type of property over
which the dominion of its female owner as her separate property has been complete. On her were conferred all the
rights of a full owner. This property was called stridhan. Stridhan mostly consisted of items of present made to her
either during maidenhood, at the time of marriage, during marriage or thereafter. Most of items of stridhan were
received by her at or about the time of marriage. The law of stridhan is being reviewed so that the perspective
remains clear.

Textual authorities: The Smritikars have elaborately dwelt upon stridhan. They have minutely discussed various
types of stridhan, the source from which she receives it, and her powers and right over each item of stridhan
received by her from various sources. The extent of her rights and powers over these depends upon the source
from which she got her stridhan. The following text from the Manu Smriti speaks of various types of stridhan:—

What was given before the nuptial fire (adhyagni), what was given at the bridal procession (adhyavahanika), what was
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given in token of love (dattam pritikarmani), and what was received from a brother, mother or father, are considered as six-
fold property of a woman1.

In this text the words “a brother, mother or father” are used by way of illustration and will include gifts given by other
relatives, both from the father’s side and husband’s side. In the next verse, Manu adds, “Such property as well as a
gift subsequent (Anvadheyam) and what was given to her by her affectionate husband shall go to her off-spring
even if she dies in his lifetime”2.

A text from the Yajnavalkaya Smriti runs as under:

What was given to a woman by the father, mother, her husband or her brother, or received by her at the nuptial fire or
presented to her on her supersession (adhivedanika) and the like (adi) is denominated woman’s property. That which is
given to (the bride) by her bandhus, i.e., sulka, Anvadheyaka, these her kinsmen (bandhavas) take if she dies3.

Commenting on these texts, Vijaneshwara said that Manu’s six-fold classification of stridhan is merely illustrative
and added that in Yajnavalkya’s text the word “adi” includes property which she may have acquired by inheritance,
purchase, partition, seizure and finding4. On a close look at the enumeration of stridhan as given by the Smritikars
and the commentators, we would find that most of the items of stridhan were received by her on or about or after
the marriage. These enumerations may be listed thus:
(a) Adhyagni: What is given before the nuptial fire.
(b) Adhyavahanika: What a woman receives while she is conducted from her father’s house to her husband’s
house.
(c) Pritidatta or Bhatrudaya: What is bestowed on her in token of love, such as, affectionate presents from her
mother-in-law or her father-in-law or whatever is received by the bride from her relations from her
husband’s side at the time of touching the feet of elders.
(d) Anvadheyaka: Gifts subsequent to marriage received by her from her husband’s family or father’s family.
(e) Bandhudatta: What is given to the bride by the relations of her mother or her father.

Gifts received by her otherwise than on the occasion of marriage: The gifts received by her which are not
connected with her marriage fall under the following heads:—
(a) Adhivedanika: A gift given to a woman on her husband’s marriage to another woman (gift on
supersession).
(b) Property obtained by adverse possession.
(c) Property obtained in lieu of maintenance.
(d) Property acquired by her own self-exertion or by mechanical art or science.

Sulka: The concept of sulka seems to nearest to modern dowry, the other way round, i.e. proceeding from the
groom to the bride or, more appropriately, bride’s father. It generally means the bride-price or gratuity on the receipt
of which the girl is given in marriage. This is so in Asura marriage. Sophisticated view is that it is the amount given
to her and her husband for setting up the house. Some hold that it is a special present given to a bride to induce her
to go to her husband’s house. The fact of the matter is that this was the amount or property given by the bridegroom
to the bride’s father on the latter’s agreeing to give his daughter in marriage to the former.

The gifts made to a woman at or about the marriage or subsequently thereafter are classified under two heads:
Yautaka and Ayautaka. Whatever is given to the bride and the bridegroom sitting upon the same seat at the time of
marriage is known as Yautaka. In other words, Yautaka is that which is given at the nuptial fire. It includes all gifts
made at the time the marriage ceremony. Ayautaka is a gift made before or after marriage, saudayika includes both
Yautaka and Ayautaka except that which is received from strangers1. Saudayika has always been recognized as
the type of property over which she has full dominion. In the words of sage Katyayana:

The independence of women who have received the saudayika wealth, is desirable (in regard to it), for it was given (by their
kindred) for their maintenance out of affection. The power of women over saudayika at all times is celebrated, both in
respect of gift and sale according to their pleasure even in (the case of) immovables2.
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Some authorities confine saudayika to yautaka, i.e., presents received by a woman from her own parents or their
relatives or from husband or from his relatives from the time of her betrothment to the completion of the ceremony
performed on the occasion of her entering her husband’s house. But some hold the view that saudayika also
includes gifts received by her from her husband and from other relatives after her marriage. It is submitted that the
correct view seems to be that the gifts made to her by her parents or husband or by her parents’ relatives or her
husband’s relatives made before marriage, at marriage or after marriage constitutes her saudayika over which her
dominion is complete1. Saudayika thus includes gifts from relations, but does not include gifts from strangers.

Saudayika is her absolute property. She can do anything with it. Her husband has no control over it nor can he use
it himself. However, in a case of extreme distress, as in famine, or for the performance of some indispensable duty,
or during illness, he may use it. Even then, he is under duty to restore its value when he is able to do so. But if he
takes it without necessity, he is bound to repay it with interest2. This is purely a personal right of the husband. If he
does not choose to avail of it himself, his creditors cannot proceed against it. Even when her husband uses it,
ownership in the property remains vested in her.

It is submitted that woman’s power of disposal of her stridhan has never been confined to saudayika, but it
extended to all other types of stridhan. There is no restriction over her power of alienation of any type of stridhan,
even during coverture, though in times of distress her husband can use some type of stridhan. According to
Katyayana the two exceptions are: (i) wealth that is earned by her from mechanical arts, and (ii) gifts received by
her from non-kindred, i.e., stranger. Katyayana and most commentators take the view that over these properties
she has no independent power of alienation during the lifetime of her husband. But this does not mean that these
are not her properties or that her husband has ownership in them. Her authority over these properties is only
subject to the authority of her husband; no one else has any authority over it. If he dies before her, she becomes
unrestricted owner and on her death, like all other types of stridhan, these devolve on her heirs. Some sages and
commentators do not subscribe to this view and hold that even the husband has no such power on any type of
stridhan. Restrictions on her powers are no more than moral precepts3.

Demanded Presents: Dowry

It is evident that all types of stridhan, including saudayika are properties given to her by way of gift and without any
demand, coercion, undue influence or pressure. The dowry given to the husband or in-law is different from
saudayika as it is essentially given under coercion, undue influence, intimidation, or pressure, and it is this which is
prohibited under the Dowry Prohibition Act, 1961.

In the definition of “dowry” as enshrined in the Dowry Prohibition Act, 1961, Explanation I of section 2, which has
been omitted by the Dowry Prohibition (Amendment) Act, 1984, laid down:

For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the
marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of
this section, unless they are made as consideration of marriage of the said parties.

This was deemed necessary since the distinction between presents and demanded presents is very thin and
sometimes it is well nigh impossible to say which are genuine wedding presents and which are demanded presents.
It was from this angle that dowry was defined as consideration for marriage. But since this definition enabled those
to escape from dowry offences who took the “demanded present” after marriage1, the definition has been amended
by the Dowry Prohibition (Amendment) Act, 1984, and the words “in consideration of marriage” have been
substituted by words “in connection with the marriage” of such parties, and Explanation I has been omitted. But
since the purpose of the Act is not to prohibit presents made on the occasion of marriage (it is well nigh impossible
to do so, under the prevailing social notions and customs in our society). Section 3(2) of the Dowry Prohibition Act,
1961 provides:

Nothing in sub-section (1) shall apply to, or in relation to,—

(a) presents which are given at the time of the marriage to the bride (without any demand having been made in that
behalf);

(b) presents which are given at the time of marriage to the bridegroom (without any demand having been made in
that behalf).
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Chapter III THE DOWRY PROHIBITION ACT, 1961

As a safeguard, provision to both the clauses (a) and (b) lay down that such presents are to be listed in a list to be
maintained by the bride when presents are made to her and in a list to be prepared by the bridegroom when
presents are made to him2.

Dowry has been made stridhan by virtue of section 6 of the Dowry Prohibition Act, 1961. Sub-section (1) of section
6 runs:

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that
person shall transfer it to the woman—
(a) if the dowry was received before marriage, within three months after the date of the marriage, or

(b) if the dowry was received at the time of or after marriage, within three months after the date of its receipt, or

(c) If the dowry was received when the woman was a minor, within three months after she has attained the age of
eighteen years,
and pending such transfer, shall hold it in trust for the benefit of the woman.

In this backdrop two cases, one decided by the Supreme Court and the other by a Full Bench of the Punjab and
Haryana High Court are being discussed here.

In the Supreme Court case, Pratibha Rani v. Suraj Kumar1, the brief facts were: Pratibha Rani was married to Suraj
Kumar in Ludhiana on February 4, 1972, according to Hindu rites and ceremonies. At the time of the marriage, the
father, two brothers and a brother-in-law demanded dowry from Pratibha Rani’s father and the latter gave articles
worth Rs. 60,000 in the form of gold ornaments, clothes and other valuables. The same were entrusted to the in-
laws of Pratibha Rani at the time of doli on February 4, 1972. Soon after the marriage her in-laws, including
Pratibha Rani’s husband started teasing, harassing and beating her. These went to the extent to keeping her
without food to extract more money from her parents. The year 1977 began very badly for her. She and her children
were turned out of her husband’s house. With the intervention of Panchas of the community raproachement was
made and Pratibha Rani rejoined the matrimonial home in June 1977. But things did not improve; maltreatment
continued, so did the demand for more money. Failing to get satisfaction of their monetary demands her in-laws and
her husband once again threw her out after depriving her of all her clothes, jewellery and other articles belonging to
her as part of presents or dowry—her stridhan. Several demands were made for the return of the articles on the in-
laws but with no avail. Pratibha Rani filed proceedings for maintenance against her husband under section 125 of
the Code of Criminal Procedure, 1973. Then she filed a complaint for criminal breach of trust under sections 405
and 406 of the Indian Penal Code, 1860. The husband and her in-laws filed proceedings under the inherent powers
under section 482 of thecode of Criminal Procedure, 1973 for getting these proceedings quashed.

In the Punjab and Haryana High Court case, Vinod Kumar Sethi v. State of Punjab2, the story is more or less the
same. Veena and Vinod Kumar were married according to Hindu rites and ceremonies on January 28, 1979.
Immediately thereafter she was ill-treated, harassed and ultimately, in January 1981, she was turned out from the
matrimonial home in her wearing apparel, after being deprived of all the articles of her dowry, when her father failed
to satisfy the financial lust of her husband and in-laws. Thereafter she made a demand for the return of stridhan
including all articles given to her as dowry. But not a single item of property was returned. This was followed by
wife’s filing a criminal complaint for criminal breach of trust. The husband and her in-laws invoked inherent
jurisdiction of the High Court for quashing proceedings at the investigation stage.

In Pratibha Rani’s1 case, S.S. Kang, J., of the Punjab and Haryana High Court, following Vinod Kumar’s case
observed that mere handing over of the articles of dowry to the husband and in-laws at the time of marriage does
not constitute entrustment in the sense of the words used in sections 405 and 406 of the Indian Penal Code, and
that it did not amount to passing of domain over those articles to them. He added, there could be such an
entrustment only by a subsequent conscious act of volition and that in the absence of such an act, any allegation of
breach of trust between the husband and wife could not constitute an offence under section 405 of the Indian Penal
Code. The learned Judge also added, between the husband and wife, there is always a jointness of control and
possession of the properties of the spouses within the matrimonial home and that it went against the very concept
of entrustment of his or her property by one spouse to the other.

It appears that the main concern of the Full Bench in Vinod Kumar’s case (the majority of the Supreme Court in
Pratibha Rani has called the judgment in Vinod Kumar’s case “a mass of confusion and which lacks clarity and
coherence”), which is shared by Varadarajan J., in the Supreme Court, was that the criminal law should not enter
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Chapter III THE DOWRY PROHIBITION ACT, 1961

the precincts of the matrimonial home as such entry would mar the peaceful and harmonious relationship in a
matrimonial home. In this argument, it was overlooked that the recourse to criminal law was made only when
peaceful and harmonious relationship no longer existed1. Apart from this concern, Sandhawalia, C.J., seems to
have been obsessed by the concept of matrimonial home that he propounded in Kailash Wati v. Ayodhia Prakash2
and, which, it seems, he was very happy to apply to this case. He fell a little short of developing a concept of
communal property of spouses, though he did propound the concept of joint possession of all spousal properties.

Recognizing the distinction between Saudayika (though he does not use this expression) and dowry, Sandhawalia,
C.J., uses both the words inter-changeably as if one means the other. He says that the Dowry Prohibition Act, 1961
does not bar the traditional giving of presents at or about the time of wedding, which may be willing and affectionate
gifts by parents and close relatives of the bride to her. He added, “Such presents or dowry given by the parents is,
therefore, not at all within the definition of the statute”.3 (emphasis author’s) It is submitted that the root cause of the
confusion is this equation of dowry with the presents.

“Presents” are obviously not within the definition of dowry. In the following passage the learned Chief Justice
correctly summarises the concept of stridhan, though he goes on using the word “dowry” and “traditional present”
interchangeably:

It must, therefore, be unreservedly stated that the law, as it stands today, visualizes a complete and full ownership of her
individual property by a Hindu wife and in this context the factum of marriage is of little or no relevance and she can own
and possess property in the same manner as a Hindu male Once it is held that a Hindu wife can own property in her own
right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually
owned by her or had been gifted to the husband alone or jointly to the couple…For instance, jewellery meant for the
personal wearing of the bride, wedding apparel made to her measure specifically, cash amounts put into a fixed deposit in a
bank expressly in her name, or a motor car presented to her and duly registered in her name, are obvious examples of
dowry raising the strongest, if not conclusive presumption, of her separate ownership in these articles. Once it is found as a
fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere
factum of marriage would alter any such property right and divest her of ownership either totally or partially1.

The learned Judge correctly states:

Equally, the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a
joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness of control and
custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere use
or enjoyment of the dowry by other members of the household, would have the effect of passing the possession and control
thereof jointly to the Hindu undivided family as such1.

Then, the learned Judge says that the question has to be examined against the backdrop of the matrimonial home.
He then quotes his own formulation of matrimonial home in Kailash Wati v. Ayodhia Prakash2:

To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised
societies. It is indeed around it that generally the marriage tie revolves. The home epitomizes the finer nuances of the
marital status. The bundle of indefinable rights 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. The significance of the conjugal home in the
marriage tie is indeed so patent that it would perhaps be wasteful to elaborate the same at any great length. Indeed, the
marital status and the conjugal home have been almost used as inter-changeable terms3.

Sandhawalia, C.J., applying his formulation of matrimonial home to the dowry and stridhan said that it would be
farcical to assume that despite the factum of a marriage and a common matrimonial home, the two spouses would
stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the
exclusive property of the other. Rather, it appears that conjugal relationship and the existence of matrimonial home
automatically obviates any such hyper-technicality of an entrustment of dominion over the property. Yet, the learned
Chief Justice was led into the technicality by introducing the law of partnership among the life-partners. He begins
by observing that the position of partnership is not identical with the position of life-partners because partnership
envisages a co-ownership of partnership property, while in conjugal relationship the spouses may be the individual
and exclusive owners of their respective properties. Yet, the learned Chief Justice finds a marked similarity between
the two when he says that in partnership co-ownership necessarily connotes a jointness of possession of
partnership property, whilst the same position inheres in the matrimonial home where the spouses are deemed to
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Chapter III THE DOWRY PROHIBITION ACT, 1961

be jointly in possession and custody of all the properties of the spouse lying in the matrimonial home1. On the
analogy of partnership, the learned Chief Justice reaches the following conclusion:

…The very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with
regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the
conjugal relationship as involving any entrustment or passing of dominion over property day-to-day by the husband to the
wife or vice versa2.

Disagreeing with the above formulation, Fazal Ali, J., said that it is neither appropriate nor apposite to import the
concept of partnership into the relationship of husband and wife for the simple reason that the concept of
partnership is entirely different from that of the husband’s keeping the stridhan in his custody. If on marriage, the
husband and wife relationship becomes a partnership, then some clear and specific act on the part of the wife must
be indicated that the stridhan which has been entrusted to the husband is to be used for a partnership business,
and the losses of the firm, if any, would have to be shared by both. In other words, one of the essential conditions of
a partnership firm is that every partner must have dominion over the property by virtue of the fact that he is a
partner. But when a wife enters the matrimonial home, the very fact of her joining her husband would not indicate
that by entrusting her stridhan to her husband she has given him authority of a part owner of the same or had made
him a partner in the property. Thus the question of husband having dominion over his wife’s property does not arise.
There does not come into existence any partnership between the two, and the husband is a pure and simple
custodian of the property and cannot use it for any purpose without her consent. In short, in the words of learned
judge, “A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential
ingredients of a partnership as defined in the Partnership Act”3.

Entrustment of Stridhan to the Husband and Criminal Breach of Trust

In the context of the criminal breach of trust, Sandhawalia, C.J., rightly says that where a husband entrusts a
specific sum of money to his wife for paying the school fees of their children, but if in a shopping spree she converts
the same into sarees for herself, she would not be guilty of breach of trust. Similarly, where a husband misuses (the
word, it is submitted should be “use”, unless one takes that misuse is also use) or appropriates some property of his
wife for himself, if would not amount to breach of trust. The learned Judge elaborating the point further said that
where the husband is the bread-winner and he brings home the month’s wages and hands them over to the wife to
be spent on the family and if she uses the same against the consent of her husband for her own purposes, she
would not be guilty of breach of trust1. It is submitted that so long marriage is a going concern, and there is peace
and harmony between the spouses, such a question will not arise. The question assumes importance only when the
marriage breaks down and the wife is turned out of the matrimonial home or leaves it as she finds it impossible to
continue to live there, and the husband refuses to hand over her stridhan. In such a case, is he not guilty of criminal
breach of trust? But Sandhawalia, C.J., holds that there cannot be any criminal breach of trust even in such a case.
He says, “The inevitable presumption during the existence or imminent break-up of the matrimonial home,
therefore, if one of joint possession of the spouses which might perhaps be dislodged by the special terms of a
written contract. However, to be precise, this presumption of joint possession of properties within the matrimonial
home can subsist only as long as the matrimonial home subsists or on the immediate break-up thereof”1. The
learned Judge then takes the argument to its logical end and thereby, it is submitted, he errs. When he says, “It
would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the
matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the
case within the ambit of section 405, Indian Penal Code. The joint custody and possession once established would
thereafter exclude either express entrustment or the passing of the dominion over the property.”

Since the learned Judge has propounded the concept of unity of possession of all properties in the matrimonial
home on the analogy of partnership firm, he is led to say that even when the wife is turned out of the matrimonial
home and the husband refuses to return her stridhan2, he is guilty of no breach of trust. The only remedy the wife
has, is to file a civil suit for the recovery of the stridhan. It is submitted that two aspects of matrimonial life have
been ignored by Sandhawalia, C.J. No reasonable person expects, certainly not in India, that a newly married
woman joining her husband, living in the same house and under the same roof, will keep her personal effects and
property like jewellery, clothing, etc., under her own lock and key or in a bank-locker, in her own name—it would be
a sure indication of distrust in the husband, and no marriage can begin well with distrust of one spouse by the other.
Secondly, when a wife entrusts her stridhan to her husband or in-laws, she is not expected to enter into a written
agreement of entrustment with them (as the learned Chief Justice suggested). That is not done. No marital
relationship can really begin with such agreements, much less with agreements of entrustment of property. That
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Chapter III THE DOWRY PROHIBITION ACT, 1961

fact of the matter is that by joining the matrimonial home established by her husband or, which happens more often,
by joining the home of her husband and in-laws, she automatically, naturally or conventionally, hands over her
jewellery and other property in the custody of her husband and in-laws; thus “entrustment” takes place. Obviously,
ordinarily no Hindu bride, no Indian bride, keeps her jewellery and other property in her own lock and key. That is
not done in Indian families. That is not Indian way of life. It is a different matter that the Dowry Prohibition Act, 1961
stipulates for making of a list of the presents made to the bride and bridegroom at the time of marriage which has to
be maintained by each party1. But again, no list of dowry items is stipulated as no list of illegality can be stipulated
by a statute. Yet, another fundamental error that the learned Chief Justice makes is the exclusion of criminal liability
of the husband. The wife cannot take recourse to criminal law. One should not overlook that criminal and civil
remedies can run side by side. It is for the person concerned to follow the one or the other he or she desires. In the
words of Fazal Ali, J.:

…The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and
consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or
the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does
not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents, etc. It is an anathema
to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are
quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly
misappropriates, the stridhan property of his wife, though kept in his custody, that would bar prosecution under section 406,
IPC, or render the ingredients of section 405, IPC, nugatory or abortive. To say that because the stridhan of a married
woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override
and distort the real intent of the law2.

This takes us to sections 405 and 406 of the Indian Penal Code, 1860. Relevant portion of section 405 of the Indian
Penal Code runs as under:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully
suffers any other person so to do, “commits criminal breach of trust”.

Section 406 of the Indian Penal Code provides for the punishment for breach of trust which may be a sentence of
imprisonment of either description extending to three years or of fine or of both.

There are ample precedents on the criminal breach of trust. In Velji Raghvji Patel v. State of Maharashtra1, the
Supreme Court observed:

Upon the plain reading of section 405, IPC, it is obvious that before a person can be said to have committed criminal
breach of trust, it must be established that he was either entrusted with or entrusted with dominion over property which he
is said to have converted for his own use or disposed of it in violation of any direction of law, etc. Every partner has
dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property
has over his property. But it is not a dominion of this kind which satisfies the requirements of section 405. In order to
establish “entrustment of dominion” over property to an accused person, the mere existence of that person’s dominion over
property is not enough. It must be further shown that his dominion was the result of entrustment.

This was a case of partnership firm, and since there is community of ownership and possession among the
partners, it was necessary to establish that there was a special agreement between the parties under which the
accused partner was entrusted with the partnership property. The Supreme Court rightly observed that in the
absence of a special agreement, a partner who receives money belonging to the firm cannot be said to have
received it in a fiduciary capacity, or in other words, he cannot be held to have been entrusted with the dominion
over partnership assets. This case does not apply unless we subscribe to the view that life-partners have a
partnership between them and constitute a firm under the Partnership Act.

In State of Gujarat v. Jaswant Lal Nathulal2, the Supreme Court observed that before there can be any entrustment,
there must be a trust meaning thereby an obligation annexed to the ownership of property and confidence reposed
in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the
other, though such an entrustment need not confirm to all the technicalities of law of trust. The requirement of
entrustment are: (a) the person handing over any property or on whose behalf that property is handed over to
another, continues to be its owner, and (b) the person handing over the property must have confidence in the
 Page 53 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

person taking the property so as to create a fiduciary relationship between them3. In Superintendent and
Remembrancer of Legal Affairs, West Bengal v. S.K. Roy4, the Supreme Court observed that for the commission of
offence under section 405 of the Indian Penal Code, 1860 there are the following two requirements:—
(i) There must be existing an obligation in relation to the property over which dominion or control is acquired
by the accused, and
(ii) There is a misappropriation or dealing with the property dishonestly and contrary to the terms of the
obligation created.

In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin1, the Supreme Court observed that to
constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the
accused was entrusted with some property or with some dominion or power over it. Further, the ownership or
beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed,
must be in some person other than the accused and the latter must hold it on account of some person or in some
way for his benefit. But when section 495 speaks of a person being in any manner entrusted with property, it does
not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates creation of a
relationship whereby the owner of property makes it over to another person to be retained by him until a certain
contingency arises or to be disposed of by him on the happening of a certain event2. Speaking in regard to the
nature of the contribution made by the employees in the provident fund and is denial of payment by the employer,
the Supreme Court said:

It may be that the deduction and retention of the employees’ contribution is a trust created by virtue of that very fact, or by
virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is
their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the
offence of criminal breach of trust. This is so obvious that nothing more need be said about it.

In Harihar Prasad v. Tulsi Das Mundhra3, the Supreme Court approved this statement of law. We may also note the
very apt statement of the Calcutta High Court in Basudeb Patra v. Kanai Lal Haldar4:

Whereas the illustrations to section 405, show equally clearly that the property comes into the possession of the accused
either by an express entrustment or by some process placing the accused in a position of trust. On the facts of the present
case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to
the petitioner by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after
having been used for the purpose for which they were handed over. If this is not an entrustment, it is impossible to conceive
what can be an entrustment.

Again, in Sushil Kumar Gupta v. Joy Shankar Bhattacharjee1, the Supreme Court observed that the offence of
criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion
over it, dishonestly misappropriates it, or converts it to his own use. In the context of the question under discussion
in Bhai Sher Jang Singh v. Virender Kaur2, the Punjab and Haryana High Court, correctly, observed thus:

It might be that some of the articles which were presented to her are for the use of both the spouses but the ornaments and
things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that
either her husband or her parents-in-law had converted to their own use the ornaments forming part of her stridhan which
she had entrusted to them, the court has to give legal effect to such allegation and assume that such ornaments had been
made the subject-matter of criminal breach of trust. It is settled law that even in a criminal complaint, the complainant is
under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting a
complaint should be specifically mentioned so that the court may be able to perform its duty of punishing the accused under
the appropriate provision of law if such allegations are made out. Furthermore, in a case like this, a complaint cannot be
quashed without giving the aggrieved wife an opportunity of proving that the ornament had been given to her at the time of
her marriage for her use only.

This decision and the decision in Avtar Singh v. Kirpal Kaur3, of the Punjab and Haryana High Court have been
approved by the Supreme Court in Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 [LNIND 1985 SC 86]: 1985 Cr
LJ 817: (1985) 2 SCC 370 [LNIND 1985 SC 86]. In the former case the High Court observed:

In my opinion, where a certain thing is lying in trust with a person, offence of dishonest misappropriation would be
committed on a date the demand for return of the entrusted articles is made and the same is declined … According to the
complaint the first demand for the return of the articles was made on January 27, 1976, and it was that date when the
 Page 54 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

demand was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January
27, 1976.

Expressly over-ruling Vinod Kumar Sethi v. State of Punjab4, and other decisions that follow it or express the same
view, Fazal Ali, J., observed that he was amazed to find that so deeply drowned were some of the High Courts in
the concept of matrimonial home qua the stridhan property of a married woman that they simply refused to believe
that such properties were meant for the exclusive use of the wife and could also be legally entrusted to the husband
or his relations. His Lordship then said:

…Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to
their own use and even though case facts are clearly alleged in a complaint for an offence under sections 405 and 406,
Indian Penal Code, some courts take the view that the complaint is not maintainable. Thus, even when clear and specific
allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard
facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the
appeals before the Allahabad and the Punjab and Haryana High Courts show that it is not so but a pure figment of the High
Court’s imagination as a result of which the High Courts completely shut their eyes to the fact that the husband could also
be guilty under sections 405 and 406, Indian Penal Code, in view of the clear allegations made in the complaint. In other
words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so, no offence is
committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and
substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and
perverse approach1.

In the result, the Supreme Court by a majority of two by one (S. Murtaza Fazal Ali and Sabyasachi Mukherji, JJ., A.
Varadarajan, J. dissenting) held that the complaint prima facie disclosed an offence of criminal breach of trust, as
defined in sections 405-406 of the Indian Penal Code and the High Court was not justified in quashing the
complaint. Fazal Ali, J. begins his judgment by a lamentation that sometimes the law which is meant to impart
justice and fair play to the citizens or people of the country are so torn and twisted by a morbid interpretative
process that instead of giving haven to the disappointed and dejected litigants, it negatives their well-established
rights in law. He added:

The present case reveals the sad story of a helpless married woman who having been turned out by her husband without
returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same,
seems to have got some relief by the court of the first instance but to her utter dismay and disappointment, when she
moved the High Court she was forced like a dumb-driven cattle to seek the dilatory remedy of a civil suit—such was the
strange and harsh approach of the High Court, with due respect, which seems to have shed all norms of justice and fair
play2.

1 Vikash v. State of Rajasthan, AIR 2002 SC 2830 [LNIND 2002 SC 474]: (2002) 6 SCC 728 [LNIND 2002 SC 474]:
2002 Cr LJ 3760.
2 Act 28 of 1961.
3 Act 63 of 1984.
4 Act 43 of 1986.
1 1981 Cr LJ 1116 : 1981 Marri LJ 429: 1981 Mat LR 238.
2 1980 BBCJ 612.
3 1980 Cr LJ 1171 : 1980 Cri LR (Mah) 459: (1980) 2 Mah LR 304.
1 Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 [LNIND 2005 SC 95]: AIR 2005 SC 785 [LNIND 2005 SC 95]:
2005 Cr LJ 1418.
2 Satyarani Chadda v. State (Delhi Administration), (1994) 2 SCC 40 : 1994 SCC (Cri) 325.
1 (1996) Tra LR 224(FB).
2 Section 6.
1 See Paras Diwan, Law Relating to Dowry, Dowry Death etc., (1997), Chapter 2.
 Page 55 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

2 Manu Smriti, 27.

3 See Mayne, Hindu Law and Usage, (11th Edn.), 123.
4 Section 6.
1 AIR 1985 SC 945 [LNIND 1985 SC 145]: (1985) 2 SCC 556 [LNIND 1985 SC 145]: 1985 Cr LJ 875 : 1985 SCC (Cri)
245 [LNIND 1985 SC 145].
2 See Paras Diwan, Muslim Law in Modern India, (11th Edn.), Chapters V, IX and X.
1 (1954) SCR 674 [LNIND 1953 SC 124]: AIR 1954 SC 119 [LNIND 1953 SC 124]: 56 Bom LR 681.
2 See also State of West Bengal v. Subodh Gopal Bose, (1954) SCR 587 [LNIND 1953 SC 118]: AIR 1954 SC 92
[LNIND 1953 SC 118]: 1954 SCJ 127 [LNIND 1953 SC 118].
3 Kalimmuddin v. State, 1977 Cr LJ (NOC) 261.
4 Govind Prasad v. State of West Bengal, AIR 1952 Cal 174 .
1 AIR 2015 SC 1359 [LNIND 2015 SC 133].
1 1985 Cr LJ (NOC) 118.
2 Government of India, Cabinet Secretariat, Deptt. of Personnel and Administrative Reforms, Notification No.
11013/12/75 Est. (A) dated 13-2-1976.
1 Rule 2(4).
2 Explanations I & II to Rule 2.
1 Hari Charan Paswan v. State of Bihar, 1984 Cr LJ 50 (Pat): AIR 1984 Pat 1 : 1983 BBCJ 705: 1984 BLJ 5 : 1983 Pat
LJR 652.
1 Randhir Singh v. State of Punjab, (2004) 13 SCC 129 [LNIND 2009 SC 1776]: AIR 2004 SC 5097 : 2004 Cr LJ 4985.
2 S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184 [LNIND 1996 SC 1040]: 1996 AIR SCW 2803: (1996)
4 SCC 596 [LNIND 1996 SC 1040].
3 1981 Cr LJ 1116 : 1981 Mad LR 238: 1981 Marri LJ 429.
4 1980 BBCJ 612.
1 Smt. Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Del 66 [LNIND 1983 DEL 328]: 1984 Mat LR 1: (1984)
1 DMC 1 : ILR (1984) 1 Del 546 : 1984 Raj LR 187.
1 1980 Cr LJ 1171 : 1980 Cri LR (Mah) 459: (1980) 2 Mah LR 304.
2 AIR 1983 SC 1219 [LNIND 1983 SC 228]: 1983 Cr LJ 1591: 1983 SCC (Cri) 813 [LNIND 1983 SC 228]: (1983) 4 SCC
231 [LNIND 1983 SC 228].
2 L.V. Jadhav v. Sankarrao Abasaheb Pawar, AIR 1983 SC 1219 [LNIND 1983 SC 228]: 1983 Cr LJ 1591: (1983) 4 SCC
231 [LNIND 1983 SC 228]: 1983 SCC (Cri) 813 [LNIND 1983 SC 228].
3 1980 BBCJ 612 : 1980 Pat LJR 281.
1 1980 BBCJ 612: 1980 Pat LJR 281.
3 AIR 1983 SC 1219 [LNIND 1983 SC 228]: (1983) 4 SCC 231 [LNIND 1983 SC 228]: 1983 SCC (Cri) 813 [LNIND 1983
SC 228]: 1983 Cr LJ 1591.
1 This was a case under the old Act, 1961, under which for the prosecution of this offence permission of State
Government was necessary.
2 1984 Cr LJ 50 (Pat): AIR 1984 Pat 1 : 1983 BBCJ 705: 1984 BLJ 5 : 1983 Pat LJR 652.
3 1984 Cr LJ 690 : 1984 All Cri LR 172.
4 1987 Cr LJ 537 : AIR 1987 SC 692 : (1987) 1 SCC 467: 1987 (1) SCJ 471 : 1987 SCC (Cri) 181: 1987 (1) Supreme 6.
1 1987 Cr LJ 537 : AIR 1987 SC 692 : (1987) 1 SCC 467: 1987 (1) SCJ 471 : 1987 SCC (Cri) 181: 1987 (1) Supreme 6.
1 See now Code of Criminal Procedure, 1973.
1 1983 Cr LJ 888 (Del): 1983 (1) Crimes 737 [LNIND 1983 DEL 36]: 1983 (1) DMC 301 : 1983 Hindu LR 243: 1983 Mat
LR 110.
1 1983 Pat LJR 395.
2 See also Inder Sain v. State of Bihar, 1981 Cr LJ 1116 : 1981 Marri LJ 429: 1981 Mat LR 238, wherein the same view
was propounded. See also Reshima Devi v. Ravindra Pahwa, 1985 Cr LJ 1980.
 Page 56 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

1 1980 BBCJ 612.

2 1983 Cr LJ 888 (Del): 1983 (1) Crimes 737 [LNIND 1983 DEL 36]: 1983 (1) DMC 301 : 1983 Hindu LR 243: 1983 Mat
LR 110.
1 Enforcement and Implementation of Dowry Prohibition Act, 1961 (in re:), (2005) 4 SCC 565 : AIR 2005 SC 2375 : 2005
Cr LJ 3598.
2 Dowry Prohibition Act, 1961: RE E&I of v. Union of India, (1998) 5 SCC 570; Commissioner of Income-tax, Bombay v.
E. Mearck Service and Agencies, AIR 2000 SC 3610 .
3 Sydney Brandon in M. Borland (Ed.) Violence in Family, (1976), 1.
1 Davis v. Johnson, (1978) 2 WLR 182 : (1978) 1 All ER 841.
2 Paras Ram v. State of Uttar Pradesh, AIR 1960 All 479 [LNIND 1959 ALL 224]: 1960 All LJ 267: 1960 Cr LJ 1054.
3 V.S. Deshpande, Women and the New Law, 100.
1 (1987) 1 ALT 762 : (1987) 3 Crimes 471.
1 K.R. Soorachari v. State of Karnataka, (2005) 11 SCC 214 [LNIND 2005 SC 373]: AIR 2005 SC 2674 [LNIND 2005 SC
373]: 2005 Cr LJ 3082.
2 State of Himachal Pradesh v. Nikku Ram, AIR 1996 SC 67 [LNIND 1995 SC 851]: 1995 AIR SCW 3721: 1995 Cr LJ
4184.
3 AIR 1987 Ori 134 [LNIND 1986 ORI 11]: (1987) 1 Cur CC 779.
1 AIR 1987 Ori 134 [LNIND 1986 ORI 11]: (1987) 1 Cur CC 779.
1 State of Andhra Pradesh v. Raj Gopal Asawa, (2004) 4 SCC 470 [LNIND 2004 SC 347]: AIR 2004 SC 1923 [LNIND
2004 SC 311]: 2004 Cr LJ 1791.
2 AIR 2014 SC 817 [LNIND 2013 SC 1006]; Sher Singh @ Pratap v. State of Haryana, AIR 2015 SC 980 [LNIND 2015
SC 20]; Rajinder Singh v. State of Punjab, AIR 2015 SC 1359 [LNIND 2015 SC 133].
1 Vidhya Devi v. State of Haryana, (2004) 9 SCC 476 [LNIND 2004 SC 78]: AIR 2004 SC 1757 [LNIND 2004 SC 78]:
2004 AIR SCW 882.
2 AIR 2014 SC 817 [LNIND 2013 SC 1006]: 2014 Cr LJ 561: 2013 AIR SCW 6741; Sher Singh @ Pratapa v. State of
Haryana, AIR 2015 SC 980 [LNIND 2015 SC 20]; Rajinder Singh v. State of Punjab, AIR 2015 SC 1359 [LNIND 2015
SC 133].
3 State of Karnataka v. M.V. Manjunathegowda, (2003) 2 SCC 188 [LNIND 2003 SC 5]: AIR 2003 SC 809 [LNIND 2003
SC 5]: 2003 AIR SCW 241.
4 Prem Singh v. State of Haryana, (1998) 8 SCC 70 [LNIND 1998 SC 721]: AIR 1998 SC 2628 [LNIND 1998 SC 721]:
1998 Cr LJ 4019: 1998 AIR SCW 2672; Sher Singh @ Pratapa v.State of Haryana, AIR 2015 SC 980 [LNIND 2015 SC
20].
1 Pawan Kumar v. State of Haryana, AIR 1998 SC 958 [LNIND 1998 SC 176]: 1998 Cr LJ 1144: (1998) 3 SCC 309
[LNIND 1998 SC 176]: 1998 (3) SCJ 480: (1998) 1 SCR 746 : (1998) 1 SCALE 486 [LNIND 1998 SC 176]: 1998 SCC
(Cri) 740 [LNIND 1998 SC 176]: 1998 (1) Supreme 505.
1 Surender Kumar v. State (Delhi Administration), (1987) 1 SCC 467 [LNIND 1987 SC 38]: 1987 Cr LJ 537: AIR 1987 SC
692, and State (Delhi Administration) v. Laxman Kumar, (1985) 2 SCC 476 : AIR 1986 SC 250 : 1986 Cr LJ 155; State
of Punjab v. Iqbal Singh, AIR 1991 SC 1532 [LNIND 1991 SC 279]: (1991) 3 SCC 1 [LNIND 1991 SC 279]: 1991 AIR
SCW 1459;
S.D. Soni v. State of Gujarat, AIR 1991 SC 917 [LNIND 1990 SC 807]: 1991 Cr LJ 330: 1991 AIR SCW 179: 1991 (2)
Crimes 4 : 1992 SCC (Cri) 331. See also Arvind Singh v. State of Bihar, AIR 2001 SC 2124 [LNIND 2001 SC 1078]:
(2001) 6 SCC 407 [LNIND 2001 SC 1078]: 2001 Cr LJ 2556; Amrish Kumar Aggarwal v. State of Uttar Pradesh, 2000
Cr LJ 1324 : 2000 All LJ 387: 1999 (2) All CJ 1187: 2000 (2) Crimes 2.
2 AIR 1987 SC 692 : (1987) 1 SCC 467: 1987 Cr LJ 537.
3 (1985) 2 SCC 476 : AIR 1986 SC 250 : 1986 Cr LJ 155.
1 AIR 1991 SC 1532 [LNIND 1991 SC 279]: (1991) 3 SCC 1 [LNIND 1991 SC 279]: 1991 Cr LJ 1897 : 1991 SCC (Cri)
513.
2 AIR 1991 SC 917 [LNIND 1990 SC 807]: 1992 Supp (1) SCC 567: 1991 Cr LJ 330.
3 AIR 1993 SC 819 : 1993 Supp (4) SCC 641: 1993 Cr LJ 75.
1 AIR 1992 SC 840 [LNIND 1992 SC 22]: 1992 Cr LJ 1104: (1992) 2 SCC 86 [LNIND 1992 SC 22]: 1992 SCC (Cri) 241
[LNIND 1992 SC 22].
 Page 57 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

1 AIR 1992 SC 1175 [LNIND 1992 SC 322]: (1992) 3 SCC 43 [LNIND 1992 SC 322]: 1992 SCC (Cri) 482 [LNIND 1992
SC 322]: 1992 Cr LJ 1529.
2 AIR 1992 SC 1817 [LNIND 1992 SC 248]: (1992) 2 SCC 474 [LNIND 1992 SC 248]: 1992 SCC (Cri) 403 [LNIND 1992
SC 248].
1 AIR 1993 SC 819 : 1993 Cr LJ 75: 1993 Supp (4) SCC 641.
1 AIR 1988 SC 1785 [LNIND 1988 SC 352]: (1988) 4 SCC 456: 1988 SCC (Cri) 978.
2 AIR 1987 SC 2060 : 1987 Supp SCC 707: JT 1987 (2) SC 764 .
1 Reema Aggarwal v. Anupam, (2004) 3 SCC 199 [LNIND 2004 SC 1499]: AIR 2004 SC 1818 : 2004 Cr LJ 892.
2 Major Singh v. State of Punjab, AIR 2015 SC 2081 [LNIND 2015 SC 249].
1 18th Edn., 308.
2 Bai Tahira v. Ali Hussain Fiddaali Chotia, 1979 SCC (Cri) 473 [LNIND 1978 SC 283]: (1979) 2 SCC 316 [LNIND 1978
SC 283]: 1979 Cr LJ 151: AIR 1979 SC 362 [LNIND 1978 SC 283].
3 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 [LNIND 1985 SC 145]: AIR 1985 SC 945 [LNIND 1985
SC 145] (953): 1985 Cr LJ 875.
4 Sahachit, 167.
1 (1886) 8 All 149.
2 (1916) 46 IA 294 : AIR 1916 PC 46 : 38 All 581 (PC).
3 (1937) 65 IA 119 : AIR 1938 PC 80 .
4 Mulla, Principles of Mohamedan Law, (17th Edn.), 277.
5 Muhammadan Jurisprudence, 334.
1 See Kapoor Chand v. Kedar Unnissa, (1950) SCR 748 . See also some early decisions to the same effect: Kamer-un-
nisa v. Hasani, ILR (1880) 3 All 266 (FB); Hamira Bibi v. Zubaida Bibi, (1916) 46 IA 294 : AIR 1916 PC 46 : 38 All 581
(PC); Jahuran v. Suleman Khan, AIR 1934 Cal 210 .
2 See Amir Ali, Mohammedan Law, II, 477.
3 Jahuran v. Suleman Khan, AIR 1934 Cal 210 ; Rukiayia Begum v. Radha Kishan, AIR 1944 All 214 : ILR 1944 All 325.
4 Md. Siddique v. Shanbuddin, AIR 1927 All 364 .
5 Subir Hussain v. Tarsand, AIR 1938 PC 80 : (1938) All 314: 65 IA 119.
6 Baillie, Digest of Moohummudan Law, II, 72.
1 Baillie, Digest of Moohummudan Law, II, 68; Hedaya, 44.
2 See Amir Ali, Mohammedan Law, I, 465-66.
3 Amina Bibi v. Md. Ibrahim, AIR 1929 Oudh 579 ; Bashir v. Zubeda, AIR 1926 Oudh 186 .
4 Ashma Bibi v. Abdul Samad, ILR (1909) 32 All 167 . But in Sughra Bibi v. Masuma Bibi, ILR (1977) 2 All 573 it valued
them at Rs. 107.
5 Haliman v. Md. Manir, AIR 1971 Pat 385 .
6 Zakeri v. Sakina, ILR (1909) 32 All 167 ; Sultan Begam v. Sirajuddin, AIR 1936 Lah 183 ; Md. Shahabuddin v. Ummatur
Rasul, AIR 1960 Pat 511 : ILR 38 Pat 624.
7 Mahomed Sultan v. Sirajuddin, AIR 1936 Lah 183 .
1 Zakeri Begum v. Sakina, (1892) 19 IA 157 : ILR 19 Cal 689 (PC); Rukia Begum v. Mahmmad, (1910) 32 All 477.
2 Sulaiman Kadr v. Mehdi Begum, 21 CWN 135; Abdul Rahman v. Inayati, AIR 1931 Oudh 63 .
3 Nauirozi v. Md. Nur Khan, 5 CWN 1031.
4 See Amir Ali, Mohammedan Law, II, 439.
5 Fatwa-i-Alamgiri, I, 427.
6 See Saburannessa v. Sobdhu Shaikh, AIR 1934 Cal 693 : (1934) 38 Cal WN 747; Haji Mokshed Monda l v. Del Rouson
Bibi, AIR 1971 Cal 162 [LNIND 1970 CAL 218]: 75 Cal WN 277: ILR (1972) 1 Cal 275 [LNIND 1970 CAL 218].
7 Ghasiti v. Umrao, ILR (1893) 21 Cal 149 (PC).
1 Mahadeo v. Bibi Maniran, ILR (1933) 12 Pat 297 .
 Page 58 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

2 Jagangir v. Abdul, (1921) 20 All LJ 56.

3 Mirza Bedar v. Mirza Khurrum, (1873) 19 WR 315 (PC); Masthan v. Assai Bibi, ILR (1899) 3 Mad 371 (FB).
4 (1937) 3 MLJ 779 : AIR 1938 Mad 107 .
5 (1947) Lah 565: AIR 1948 Lah 135 (FB).
6 See also Elden v. Mazhar, ILR (1877) 1 All 485, (one-fifth was fixed as prompt). In Tuffikunnissa v. Ghulam, ILR (1877)
1 All 560, (one-third was fixed as prompt dower).
7 See also Elden v. Mazhar, ILR (1877) 1 All 485, (one-fifth was fixed as prompt). In Tuffikunnissa v. Ghulam, ILR (1877)
1 All 560, (one-third was fixed as prompt dower). See also Nasiruddin v. Amatul, AIR 1948 Lah 135 : (1947) Lah 565.
1 See Amir Ali, Mohammedan Law, II, 455.
2 Abdul Kadir v. Salima, ILR (1886) 8 All 149 .
3 Amir Ali, Mohammedan Law, II, 455.
4 Mulla, Principles of Mohamedan Law, 282.
1 Irshad, quoted by Amir Ali, Mohammedan Law, II, 437.
2 See Amir Ali, Mohammedan Law, II, 438.
3 See Faizee, Muslim Law, 132. See also Najmoodeen v. Beebee Husseinnie, (1865) 4 WR 110.
4 Hedaya, 44; Baillie, Digest of Moohummudan Law, 92-93.
5 Baillie, Digest of Moohummudan Law, II, 71.
6 Abidhunnissa v. Mohd. Fathiuddin, ILR 41 Mad 1026: AIR 1918 Mad 319 [LNIND 1917 MAD 314]; Najmunissee v.
Serajuddin, 180 IC 208: 17 Pat 303: AIR 1939 Pat 133 .
1 Qunissa v. Haniz, AIR 1923 All 649 .
2 Nurannissa v. Khoje, ILR (1920) 47 Cal 537 ; Hanumiya v. Halimunnisa, AIR 1942 Bom 128 : 44 Bom LR 126.
3 Ghulam Mohammed v. Ghulam Hussain, (1931) 59 IA 74.
4 Jyanj v. Umrao, ILR (1908) 32 Bom 612 ; Nurannessa v. Khoje, ILR (1920) 47 Cal 537 ; Md. Zobair v. Sohideen, AIR
1942 Pat 210 : 20 Pat 798: 197 IC 241.
5 See Fatwa-i-Alamgiri, I, 447.
1 See Amir Ali, Mohammedan Law, II, 445.
1 AIR 1953 SC 413 [LNIND 1950 SC 35]: 1950 SCR 747 [LNIND 1950 SC 35].
2 Reza v. Ifatonnissa, (1873) 24 WR 546 (PC).
3 Ameer-um-nissa v. Mooradoon,(1856) 6 MIA 211(PC).
4 Md. Wazid v. Bazyit, (1875) 5 IA 211; Quazim v. Habibur Rehman, (1920) 56 IA 354.
5 Mulla, Principles of Mohamedan Law, 284. See also Amir Ali, Mohammedan Law, II, 450; Fayzee, Muslim Law, (3rd
Edn.), 136.
1 (1924) 52 IA 145.
2 Haliman v. Md. Manir, AIR 1971 Pat 385 ; Syed Yousuf Akbar Hussaini v. Syed Murtuza Akbar Hussaini, AIR 1983 AP
225 [LNIND 1962 AP 171]: (1983) 1 Civ LJ 464 : 1983 Mat LR 250.
3 (1916) 46 IA 294.
1 Abdul Sattar v. Aquida, AIR 1927 All 319 ; Fahuran v. Suleman, AIR 1943 Cal 10 ; Mirvahed Ali v. Rashid Beg, AIR
1951 Pat 22 .
2 Hasnumiya Dadamiya v. Halimunnisa Hafizulla, AIR (29) 1942 Bom 128 : 44 Bom LR 126; Beeju Bee v. Syed
Moorthiya Saheb, ILR (1920) 43 Mad 214 : AIR 1920 Mad 666 .
3 Abdul Sattar v. Aquida, AIR 1927 All 319 ; Fahuran v. Suleman, AIR 1943 Cal 10 .
4 AIR 1944 All 68 .
5 Beebee Bachun v. Sheikh Hamid,(1871) 14 MIA 377.
6 Azizullah v. Ahmed, ILR (1888) 7 All 353 ; Majid Mian v. Bibi Sahib, ILR (1916) 40 Bom 34 .
7 Abdul v. Mustaq, AIR 1944 All 368 .
 Page 59 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

8 Barzayet Hossein v. Dooli Chand, (1878) 5 IA 211 : ILR 4 Cal 402.

1 Shaik Salma v. Shaik Mahammad Abdul Kadar Umoodi, AIR 1961 AP 428 [LNIND 1960 AP 272]: 1961 Andh LT 205
[LNIND 1960 AP 272].
2 Hamira Bibi v. Zubaida Bibi, (1916) 46 IA 294 : AIR 1916 PC 46 : 38 All 581 (PC); Saheb Jan v. Ansaruddin, ILR (1911)
31 Cal 475 ; Nawasi v. Dialfroz, AIR 1926 All 39 .
3 Ram Prasad v. Khodai Jatul, AIR 1944 Pat 163 : 213 IC 306: ILR Pat 1.
4 Chubili v. Shamsunissa, ILR (1974) 17 All 19 ; Beeju Bee v. Syed Moorthiya Saheb, AIR 1920 Mad 666 : ILR (1920) 43
Mad 214; Ram Prasad v. Khodai Jatul, AIR 1944 Pat 163 : 213 IC 306: ILR Pat 1.
5 Maina Bibi v. Chaudhry Vakil Ahmad, AIR 1925 PC 63 : 52 IA 145; Sitaram v. Ganesh, AIR 1928 Oudh 209 .
1 Aminuddin v. Ram Khelawan, AIR 1949 Pat 42 .
2 Hadi Ali v. Akbar Ali, 20 All 262.
3 Amir Hasan v. Mohammad, AIR 1932 All 345 ; Beeju Bee v. Syed Moorthiya Saheb, ILR (1920) 43 Mad 214 ; Majid
Mian v. Bibi Saheb, AIR 1915 Bom 214 : ILR 40 Bom 34; Hussain v. Rahim Khan, AIR 1954 Mys 24 : ILR 1953 Mys
348: 32 Mys LJ 173; Sogia v. Kitaban, AIR 1982 Pat 224 ; Ramija v. Sharifa, (1983) 1 MLJ 332.
4 Abdul v. Mustaq, AIR 1944 All 368 ; Majid Mian v. Bibi Saheb, AIR 1915 Bom 214 : ILR 40 Bom 34.
1 Amir Hasan v. Mohammad, ILR (1932) 54 All 499 ; Abdur Rahman v. Wali Mohammad, AIR 1923 Pat 72 : 4 Pat LT
267; Mohitan v. Zubera, AIR 1954 Pat 17 : 1953 BLJR 353.
2 AIR 1980 All 118 [LNIND 1979 ALL 1]: 1979 All WC 722.
3 Syed Yousuf Akbar Hussaini v. Syed Murtaza Akbar Hussaini, AIR 1983 AP 225 [LNIND 1962 AP 171]: (1983) 1 Andh
WR 273: (1983) 1 Andh LT 179 : (1983) 1 Civ LJ 464 : 1983 Mat LR 250.
1 Vinod Kumar v. State of Punjab, 1982 HLR 327: (1982) 1 DMC 421 : AIR 1982 P&H 372 (FB) and all later judgments of
Division Benches which follow it.
2 AIR 1985 SC 628 [LNIND 1985 SC 86]: (1985) 2 SCC 370 [LNIND 1985 SC 86]: 1985 Cr LJ 817.
1 Manu Smriti, IX, 194.
2 Manu Smriti, IX, 195.
3 Yajnayalkya Smriti, II, 143, 144.
4 The Mitakshara, II, XI, 2.
1 See Muthukaruppa v. Sellathammal, ILR (1916) 39 Mad 298 : AIR 1915 Mad 475 [LNIND 1914 MAD 377].
2 Katyayana, cited in the Vyavahara Mayukha, IV, X, 8.
1 This view is taken by the courts from very beginning. The earliest case seems to be Doorga v. Mt. Fejoo, (1860) 5 WR
53; Basant Kumari Debi v. Kamikshya Kumari Debi, (1906) 32 IA 181 : (1906) ILR 33 Cal 23.
2 The Mitakshara, II, 11, sections 31-32.
3 See for detailed discussion, Mayne, Hindu Law and Usage, (1951), Chapter XVI. See also for summary of law, N.R.
Raghavachariar, Hindu Law (5th Edn.), 533; Paras Diwan, Modern Hindu Law, (1993), Chapter XV.
1 For instance, see Inder Sain v. State of Bihar, 1981 Cr LJ 1116 : 1981 Marri LJ 429: 1981 Mat LR 238.
2 See rule 2, The Dowry Prohibition (Maintenance of List of Presents to the Bride or Bridegroom) Rules, 1985.
1 Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 [LNIND 1985 SC 86]: 1985 SCC (Cri) 180 [LNIND 1985 SC 86]:
(1985) 2 SCC 370 [LNIND 1985 SC 86]: 1985 Cr LJ 817.
2 AIR 1982 P&H 372 : 1982 HLR 327: (1982) 1 DMC 421.
1 Rohtagi, J., of the Delhi High Court also observed in another context that entry of constitutional law in the matrimonial
home would be like the entry of a bull in a china shop; Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66 [LNIND
1983 DEL 328]: 1984 Mat LR 1: (1984) 1 DMC 1 : ILR (1984) 1 Del 546 : 1984 Rajdhani LR 187.
2 ILR (1977) 1 P&H 642 : 1977 HLR 175.
3 Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982 P&H 372 (387).
1 Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982 P&H 372 (388).
2 ILR (1977) 1 P&H 642.
3 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642.
 Page 60 of 60
Chapter III THE DOWRY PROHIBITION ACT, 1961

1 He cites decisions of the High Courts on the concept of partnership as well as the Supreme Court decision in Velji
Raghavji Patel v. State of Maharashtra, (1965) 2 SCR 429 [LNIND 1964 SC 350]: AIR 1965 SC 1433 [LNIND 1964 SC
350]: 1965 (2) SCJ 186 [LNIND 1964 SC 350]; see Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982
P&H 372 (390-392).
2 Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982 P&H 372 (393).
3 Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 [LNIND 1985 SC 86] (636): 1985 Cr LJ 817 : (1985) 2 SCC 370
[LNIND 1985 SC 86].
1 Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982 P&H 372 (394).
2 Vinod Kumar Sethi v. State of Punjab, 1982 HLR 327: AIR 1982 P&H 372 Para 45.
1 See section 3(2) and rule 2.
2 Pratiba Rani v. Suraj Kumar, 1985 SCC (Cri) 180 [LNIND 1985 SC 86]: (1985) 2 SCC 370 [LNIND 1985 SC 86]: 1985
Cr LJ 817: AIR 1985 SC 628 [LNIND 1985 SC 86] (635).
1 (1965) 2 SCR 429 [LNIND 1964 SC 350]: AIR 1965 SC 1433 [LNIND 1964 SC 350]: (1965) 2 Cr LJ 431.
2 (1968) 2 SCR 408 [LNIND 1967 SC 338]: AIR 1968 SC 700 [LNIND 1967 SC 338]: 1968 Cr LJ 803.
3 See also Sushil Kumar Gupta v. Joy Shankar Bhattacharjee, 1970 SCC (Cri) 210 : (1970) 3 SCR 770 [LNIND 1970 SC
66]: AIR 1971 SC 1543 [LNIND 1970 SC 66].
4 (1974) 4 SCC 230 [LNIND 1974 SC 35]: AIR 1974 SC 794 [LNIND 1974 SC 35]: 1974 Cr LJ 678.
1 AIR 1953 SC 478 [LNIND 1952 SC 159]: 1953 Ker LJ 173: 1954 Cr LJ 102.
2 See Jaswantrai Manilal Akhaney v. State of Bombay, (1956) SCR 483 [LNIND 1956 SC 40]: 1956 SCJ 613: AIR 1956
SC 575 [LNIND 1956 SC 40].
3 1980 Cr LJ 1329 : (1980) 4 SCC 120 : AIR 1981 SC 81 .
4 AIR 1949 Cal 207 : 52 CWN 641: 50 Cr LJ 342.
1 (1971) 4 SCC 504 : 1970 SCC (Cri) 210: AIR 1971 SC 1543 [LNIND 1970 SC 66].
2 (1979) Cr LJ 493 : 1979 Mat LR 231: 1979 Marr LJ 570.
3 Unreported, Cr Misc 2144-M of 1979.
4 1982 HLR 327: AIR 1982 P&H 372.
1 Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 [LNIND 1985 SC 86] (636): 1985 Cr LJ 817 : (1985) 2 SCC 370
[LNIND 1985 SC 86].
2 Varadarajan, J., in his dissenting judgment has extensively quoted from Vinod Kumar Sethi v. State of Punjab, 1982
HLR 327: AIR 1982 P&H 372 (practically nine-tenth judgment contains quotes from that judgment) and took the view
that in the absence of a specific separate agreement between the wife on one side and her husband and in-laws on the
other, no case of entrustment of stridhan or dowry to the husband and in-laws is made out and they, thus, could not be
held guilty of criminal breach of trust; Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 [LNIND 1985 SC 86] (636):
1985 Cr LJ 817 : (1985) 2 SCC 370 [LNIND 1985 SC 86].

End of Document
 Chapter IV NULLITY OF MARRIAGE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter IV NULLITY OF MARRIAGE

INTRODUCTION: HISTORICAL

In its origin, the law of nullity is essentially linked with the law of capacity to marry. But such has been the
development that law of nullity has gone beyond the law of capacity, and in that sense has become an independent
topic. At one time it was the firm view that if a person has no capacity to marry, the marriage is null and void. Thus,
under old English law, i.e., before 1929, the ages of marriage for boys and girls were 14 and 12 respectively, and a
marriage, when one of the parties was under-age, was not void but voidable, and could be annulled by either party
on attaining majority. But in 1929 the marriage of a person under the age of 16 was rendered void. The later
development, too, has been that not every prohibition rendered the marriage void. But in this regard there is yet
difference in the provisions in different systems of law including different personal laws in India. In England,
marriage of a person below the age of 16 is void1, while under Hindu law non-age does not render the marriage
void or voidable. Marriage remains valid2. Under the Special Marriage Act such a marriage is void3. Under other
statutes if the consent of the guardian has been obtained, the marriage is valid4. Under Parsi Marriage and Divorce
Act, 1936 if consent has not been obtained, the marriage is void5. Similarly, in modern English law lack of consent
makes the marriage voidable6. The same is the position under all the Indian matrimonial statutes1. But under the
Divorce Act, 1869, if either party at the time of marriage is idiot or lunatic, the marriage is void2.

The voidable marriage, an extension of law of nullity, is not linked with capacity to marry. The English law as well as
the Hindu Marriage Act, 1955 andspecial Marriage Act, 1954 lay down separate grounds of void marriage3. The fact
of the matter is that law of voidable marriage developed as an escape door to the ecclesiastical notion that marriage
is an indissoluble union.

Before the Reformation, the English matrimonial law was wedded to canon law which very rigidly adhered to the
notion that a valid marriage could not be dissolved. The law of capacity laid down certain absolute impediments,
such a prohibited degrees, monogamy and like and if these were broken there could not come a valid marriage,
however, solemn and magnificent might have been the ceremonies of marriage, and however, long thereafter
parties might have lived together with the total amity and magnificence in that holy and solemn wedlock. Such
marriage was no marriage and the ecclesiastical courts passed a decree declaring the union to have been and to
be absolutely null and void to all intents and purposes whatsoever. The fact of the matter was that such a decree
did no more than to declare the factual position that there was never a marriage. No legal consequences were
attached to such a marriage. Any one who has an interest in the “marriage” could get the marriage declared null
and void and this could be done many years after the marriage, and even after the death of both or any party to
such marriage. Since there was no other escape from a marriage that has become intolerable, the ground of nullity
were gradually extended, with the result that an enterprising lawyer would usually succeed in discovering some flaw
in the marriage whenever a party wanted an escape-route from the marriage. The obvious consequence of this
development was increasing uncertainly about marriage.

At the Reformation, two important changes were made. First, the grounds of nullity were restricted and well defined.
Secondly, the common law courts (now that the jurisdiction in all matrimonial matters had passed on them from the
ecclesiastical courts) laid down that no decree of nullity could be passed after the death of one of the parties to the
marriage4. It was this distinction which led to the classification of nullity into void and voidable marriages. It was laid
down that a decree of nullity could be passed at any time after the marriage, even after the death of any party to the
marriage. (However, this is not so under the Indian law and under Hindu law a nullity petition can be filed only
against the respondent.) On the other hand a decree annulling a voidable marriage could not be passed after the
death of any party to the marriage.
 Page 2 of 44
Chapter IV NULLITY OF MARRIAGE

Although under the Matrimonial Causes Act, 1857, jurisdiction in matrimonial matters passed on to the Divorce
Court, most principles applicable to the matrimonial proceeding remained those of ecclesiastical courts. Gradually,
some civil law rules were evolved and statutory changes were made. In 1971, law of nullity was comprehensively
changed. With a view to mitigating the hard effect of the nullity decree, the divorce court started attaching some of
the incidents of a valid marriage to a void marriage—provided the marriage was annulled by a decree of the court.
Although, since a void marriage was a non-existing marriage, no decree of nullity was needed. But a decree in a
void marriage gave some advantage to the wife, it was advisable to get decree of nullity. Thus, if decree of nullity
was passed, the wife could claim for financial assistance (in the nature of alimony) from her husband (a decree was
needed as the wife of a void marriage had none of the rights of a married woman—of a wife).

Now the Nullity of Marriage Act, 1971 (which has been consolidated in the Matrimonial Causes Act, 1973) has
made considerable changes in the law of nullity. Now grounds of void marriages are few, viz., parties are within
prohibited degrees of relationship; either party was under the age of sixteen at the time of marriage; at the time of
marriage either party was already lawfully married; parties are not respectively male and female1 and there is
noncompliance of some formalities laid down in section 49 of the Marriage Act, 1949.

It was from English law that concept of nullity of marriage spread to the colonies. That the Indian Divorce Act, 1869
and the Parsi Marriage and Divorce Act, 1936 should have been based on English law may not surprise many
(though remarkably the latter statute makes a departure inasmuch as ground of voidable marriage are grounds of
divorce under it), but that the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 should have borrowed
the then existing English law of nullity with all its flows would surprise many: one wonders whether it is bankruptcy
of ideas or unwanting apish mentality ?

Under Hindu Marriage Act, 1955, capacity to marriage is contained in section 5. The original title of section 5 is,
“conditions of marriage.” There has been misconception regarding consequences of a marriage performed in
violation of conditions laid down in that section. Some thought that a marriage performed in violation of any of these
conditions is void. May be their notion was influenced by section 4 of thespecial Marriage Act, 1954, whereunder
violation of any of the four conditions renders the marriage void. It was not realized that the Hindu Marriage Act,
1955 is based on a different philosophy: It is only the violation of prohibition of bigamy and marriage within
prohibited relationship that render the marriage void. Non-age does not render the marriage void or voidable.
Insanity renders a marriage voidable.

Under the Special Marriage Act, 1954 and Hindu Marriage Act, distinction between void and voidable marriages is
made and separate grounds of both are laid down. But under the Indian Divorce Act, 1869 only grounds of void
marriages are laid down. No grounds of voidable marriage are provided. The same is true of the Parsi Marriage and
Divorce Act, 1936 but some of the traditional grounds of voidable marriages have been made grounds of divorce.

Muslim law also recognizes only void marriages known as batil marriages. There is no concept of voidable
marriage. Muslim law has a unique concept of irregular marriage called fasid marriage. This matter has already
been considered in the preceding chapter.
VOID AND VOIDABLE MARRIAGES

Void Marriage.—
A void marriage is one that will be regarded having not taken place and can be so treated by both the parties to it
without any necessity of any decree annulling it1. A decree is nonetheless advisable. It can be obtained by either
party to the marriage or by person having sufficient interest in it.

A void marriage is no marriage.2 It is a marriage which does not exist from its beginning. It is called a marriage
because two persons have undergone the ceremonies of marriage. Since they absolutely lack capacity to marry,
they cannot, by just undergoing ceremonies, become husband and wife in the eyes of law. For instance, if a brother
and sister perform all the ceremonies of marriage, and start living as man and wife, that will not make them
husband and wife in the eyes of law. From the very beginning, i.e., right from 1956, they will not be deemed to be
husband and wife. In other words, no legal consequences flow from a void marriage. The legal consequences of
marriage are: it confers a status of husband and wife on parties; it confers a status of legitimacy on the children of
the marriage; and it gives rise to certain rights and obligations against each other as well as against third persons.
In the case of a void marriage, parties have no status of husband and wife. Thus, if one of them or both of them
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take another spouse the offence of bigamy will not be committed. If someone calls the wife a concubine, it will not
amount to defamation. Any individual can take a stand and say that parties are not married persons, even if no
court had declared such a marriage as void. The question of nullity of marriage can be raised in collateral
proceedings also. For instance, A and B are two brothers. A marries W, but the marriage is void. A dies leaving
behind his brother B, his widow W. B claims that he is entitled to inherit A’s properties, because W was not A’s wife.
If he files a suit claiming inheritance to his brother’s property, he can prove in these proceedings that marriage of A
with W was void, hence W is not entitled to succeed to A. A void marriage confers no status of legitimacy and
therefore children of void marriage are illegitimate. (This is subject to the provisions of section 16 of the Hindu
Marriage Act, 1955.) A void marriage does not give rise to any mutual rights and obligations.

In respect of a void marriage no decree of court is necessary. Even when the court passes a decree (sometimes
people file an action for such a declaration as they want to be certain about their legal position), it merely declares
that marriage is null and void. It is not the decree of the court which renders such a marriage void. It is an existing
fact that marriage is void and the court merely makes a judicial declaration of that fact1.

Under the modern law a petition for nullity of marriage on any ground of void marriage can be moved only by one of
the parties to the marriage. Petition can be filed only by either party of void marriage, the first wife has no such
right.2 In Tulsan Devi v. Krishni Devi3, a case under Hindu Marriage Act, 1955, Gujral, J., of the Punjab and
Haryana High Court opined that a surviving spouse could file a petition for nullity after the death of the other
spouse. The learned judge, it seems, was motivated, as under the old section 16 of the Hindu Marriage Act, 1955
only children of annulled void marriage, (an adoption of English law rule apishly, without giving it any thought, even
though the rule was not necessary and was not even adhered to in England), to confer the status of legitimacy on
the children of a void marriage. The section was amended by the amending Act of 1976 by inserting the words, a
petition for nullity of marriage can be presented by a party thereto against the other party4. In Molly Joseph alias
Nish v. George Sebastian alias Joy and Jose v. Alice5, cases under Divorce Act, it was held that any declaration as
to the marriage is void by Ecclesiastical Court is not binding on the District Judge or the High Court and second
marriage cannot be solemnized by virtue of above declaration till the marriage is dissolved or annulled in
accordance with law in force.

A void marriage cannot be approbated. It cannot be ratified either. Nonperformance of requisite ceremonies renders
marriage void6.

Void Marriage In this instant case it was held that section 7 of the Hindu Marriage Act, 1955 speaks for
solemnisation of marriage in accordance with customary rites and ceremonies. And the word “Solemnization”
means to celebrate marriage with proper ceremonies with intention that parties should be considered to be married.

Further in the instant case marriage between the parties was not proved to be valid marriage as per Hindu Law as
woman was Christian and after marriage she had not converted into a Hindu.1

Voidable Marriage.—”A voidable marriage is one that will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent jurisdiction2“. However, in English
law, the form of the decree was the same as in the case of void marriage: Pronouncing the marriage “to have been
and to be absolutely null and void to all intents and purposes in the law whatsoever.” This led to great deal of
confusion and conflict. This confusion has been now avoided by the Nullity of Marriage Act, 1971. Section 5 of the
Act says down, “A decree of nullity granted after the commencement of this Act on the ground that a marriage is
voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute,
and the marriage shall, notwithstanding the decree, be treated as if it had existed upto that time.”

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable marriage can be avoided
only on the petition of one of the parties to the marriage. Locus standi to challenge factum of marriage is only with
one of the spouses.3If one of the parties does not petition for annulment of marriage, the marriage will remain valid.
If one of the parties dies before the marriage is annulled, no one can challenge the marriage. The marriage will
remain valid for ever. So long as it is not avoided all the legal consequences of a valid marriage flow from it. It
confers a status of husband and wife on the parties. The children are legitimate. All mutual rights and obligations of
the marriage arise from it. But such has been the historical nature of this remedy at English law that once a voidable
marriage is annulled the decree is given retrospective effect, from the date of the marriage. The marriage is
deemed to have been void for all purposes from its inception and parties are deemed to have never been husband
and wife and children are deemed to have never been legitimate. This rule has its origin in the doctrine of Church
that either a marriage exists forever or never. It was a logical consequence of the concept of indissolubility of
marriage. The ecclesiastical law could not hold that a marriage was valid upto certain period after its solemnization,
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but it was not valid after that period; to hold that would have meant recognizing the principle of dissolubility of
marriage. This notion of voidable marriage still exists in English matrimonial law, though its rigour has been
mitigated statutorily by conferring a status of legitimacy on the children of annulled voidable marriages. We have
copied this provision in our law almost verbatim together with its statutory modification. The existence of this
provision in English matrimonial law has been criticized in England. One wonders why it should have been copied in
India. The grounds for voidable marriages could have been easily made grounds of divorce. It may be interesting to
note that the Parsi Marriage and Divorce Act, 1936, which does not recognize the concept of voidable marriages
make some of the grounds of voidable marriage as grounds of divorce.

Void Plural Marriage.—In a case, the husband married a woman during subsistence of her first marriage. It was
held that such marriage being null and void, his subsequent marriage to another woman would not be case of plural
marriage.1

In another case, it was observed that the marriage solemnized in contravention of the age prescribed under section
5(iii) of the Hindu Marriage Act, i.e., 21 years for male and 18 years for female were never void nor voidable under
sections 11 and 12 of the Hindu Marriage Act, 1955. Thus, finding of court in earlier case that such underage
marriages were only punishable under section 18 with imprisonment of 15 days and a fine of Rs. 1000 as also
under the provisions of Child Marriage Restraint Act, 1929 could not have perceived as “reducing the age of
marriage”, “reducing the age of consent” and declining the nullity of marriages of minors. The High Court never
intended nor could have reduced statutory age of marriage. Neither there was a prayer nor such marriage could
have been nullified in view of existing factual and legal position. Reference to age of discretion was in the context of
the girls having left their home of their own without inducement or enticement for the purpose of the charge of
kidnapping, and not to suggest any approval of the errant conduct. It is for the Parliament to consider whether the
present provisions of the Hindu Marriage Act and the Child Marriage Restraint Act have proved insufficient or failed
to discourage child marriages and to take such remedial steps as are required in their wisdom.2

Distinction between void and voidable marriages.—There is some confusion in the use of terms “nullity” and
“annulment”. English courts have often applied the term “nullity” to voidable as well as to void marriage. Similarly,
they have also not confined the term “annulment” to voidable marriages. Strictly speaking, nullity is the term
applicable to void marriages and annulment to voidable marriages.

Distinction between void and voidable marriage is very material. A void marriage is void ab initio. It does not alter
the status of the parties—they do not become husband and wife; and it does not give rise to mutual rights and
obligations of the parties. A void marriage being no-marriage, the court merely passes a decree declaring the
marriage as void, while a voidable marriage is annulled by the decree of the court. It is not necessary that a decree
declaring a void marriage as void is passed. But a voidable marriage will remain a valid marriage till a decree
annulling it is passed. The parties to a void marriage may perform another marriage without getting a decree
declaring their marriage as void, and neither will be guilty of bigamy. A wife of a void marriage cannot claim
maintenance under section 125, of the Code of Criminal Procedure, 1973, as she has no status of ‘wife’, but a wife
of voidable marriage can do so.

Valid, void and irregular marriages under Muslim law.—Muslim law does not recognize the distinction between
void and voidable marriages. From the point of view of validity, marriages are classified as valid (sahih), void (batil)
and irregular (fasid) marriages.

Valid or sahih marriage is the one which is performed between the parties having capacity to marry and with all
necessary formalities. From a Sahih marriage all legal consequences of a valid marriage flow. Under Muslim law
the consequences of a valid marriage are: (a) Parties acquire the status of husband and wife and sexual
intercourse between them becomes legal. (b) Wife acquires the right of maintenance dower and lodgement. (c)
Mutual rights of inheritance are conferred on the parties. (d) Wife is under an obligation to be faithful and obedient
to the husband and admit him to sexual intercourse. (e) Prohibition of affinity comes into existence. (f) Wife comes
under husband’s power of restraining her movement, i.e., husband can prohibit her from going out and appearing in
public. [It is submitted this is no longer valid in modern India. Muslim law also lays down that this power is subject to
a contract to the contrary.] (g) Husband acquires a right of reasonable chastisement and correction. This right is of
limited significance, in modern India. (h) On dissolution of marriage, by divorce or death, the wife has the obligation
to perform idda. (i) The other rights and obligations between the spouses may also arise as agreed to under the
marriage contract. (j) Children of marriage acquire the status of legitimate children.

Void or batil marriage is the one which is performed in violation of perpetual impediments under the Sunni law, and
of all impediments under the Shia law. A batli marriage is no-marriage; it is void ab initio. No legal consequences
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Chapter IV NULLITY OF MARRIAGE

flow from it. Thus a marriage performed in violation of rules of consanguinity, fosterage, or affinity is void marriage.
No legal action is necessary and none is provided under Muslim law. However, if any party so desires he or she can
file a declaratory suit under the Specific Relief Act, 1963.

Where a marriage is performed in violation of an impediment or prohibition which is temporary or remedial, than the
marriage is irregular or fasid under the Sunni law. It is neither a valid nor void marriage. It is not a voidable marriage
either. It is a peculiar Muslim law concept. To begin with such a marriage is not valid, but it can be validated by
removing the impediment, or by remedying the prohibition. Thus, when a person marries wife’s sister or a fifth wife,
he can remove the impediment by divorcing his first wife in the former case and by divorcing any of the four wives in
the latter case. An irregular marriage has no effect before consummation. Either party may terminate it, at any time,
either before or after its consummation by expressing an intention to do so. Any words are enough, if intention is
clearly expressed. Thus if one says to the other, “I have relinquished thee,” marriage stand terminated. If marriage
has been consummated, the wife is required to undergo idda of three courses as on dissolution of marriage, either
by death or divorce. If the marriage has not been consummated the wife has no obligation to undergo idda. The
children of such marriage are legitimate and have right to inheritance to the property of both parents, but the parties
have no right to mutual inheritance.

The Shia law does not recognize irregular marriage, and marriages performed in violation of perpetual or temporary
or remedial impediments are void (batil).

Children of void and voidable marriages.—When the Indian Divorce Act, 1869 was enacted it represented the
state of the then existing English law. However, the Divorce Act, 1869 in two cases of void marriage does not
bastardize the children. It lays down that where a marriage is declared null and void on the ground that a former
spouse of either party was living and it is adjudged that the subsequent marriage was contracted in good faith and
with full belief of the parties that the former spouse was dead; or when a marriage is annulled on the ground of
insanity, children begotten before the decree will be legitimate. Section 21 of the Act runs:

Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the
subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was
dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be
specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the
parent who at the time of the marriage was competent to contract.

The children of a Parsi marriage are also legitimate children irrespective of the fact whether the marriage has or has
not been declared null and void, after the coming into force of the Parsi Marriage and Divorce (Amendment) Act,
1988.

When the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 were passed, they reflected the then state
of English law. Under English law children of void marriage were illegitimate whether or not the marriage was
declared null and void except in few cases, such as, under the Legitimacy Act (the Family Law Reform Act, 1969,
has now virtually obliterated the distinction between legitimate and illegitimate children by conferring many rights of
legitimate children on illegitimate children), the children remained illegitimate. But children of voidable marriage
remained legitimate even when the marriage was annulled. Originally it has been stated that children of void
marriage declared null and void will become legitimate, but not if the marriage is not declared void. The Marriage
Laws (Amendment) Act, 1976, has amended both section 16 of the Hindu Marriage Act, 1955 and section 26 of
thespecial Marriage Act, 1954 with the result that children of voidable marriages and void marriages (whether
declared void or not) are legitimate1. Therefore, daughters born out of second marriage would be entitled to inherit
along with the first wife.2

The Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 confer
the status of legitimacy only on the children of those marriages which are void and which took place after the
coming into force of these statutes3 and only on the grounds of void marriages stated therein.

Children of void marriages and annulled voidable marriages can inherit only in the property of their
parents.—Provisos to section 16 of the Hindu Marriage Act, 1955 and section 26 of thespecial Marriage Act, 1954
lay down that children of a void marriage (whether declared void or not) and children of annulled voidable marriage
will inherit the property of their parents only and of none else1. Therefore, they are not entitled to inherit property of
their father’s parents.2 Contrary view that they have a right to share the joint-family property is wrong3. However,
there is no such limitation under the Parsi Marriage and Divorce Act, 1936. Section 3(2) of the Act lays down:
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Chapter IV NULLITY OF MARRIAGE

Notwithstanding that a marriage is invalid under any of the provisions of sub-section (1) (whereunder grounds of void
marriages are laid down), any child if such marriage who would have been legitimate if the marriage has been valid, shall
be legitimate.

Sons of void marriages and annulled voidable marriages are not coparceners.—Sons of void marriage and
annulled voidable marriage cannot claim to be coparceners with their father and, therefore, have no right to claim
partition of the joint-family property4.

Section 16 of the Hindu Marriage Act, 1955 having the marginal title of “Legitimacy of children of void and voidable
marriages”, runs as under:
(1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would
have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before
or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not
a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is
held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten
or conceived before the decree is made, who would have been the legitimate child of the parties to the
marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be
their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a
marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or
to the property of any person, other than the parents, in any case where, but for the passing of this Act,
such child would have been incapable of possessing or acquiring any such rights by reason of his not
being the legitimate child of his parents.

Section 26 of the Special Marriage Act, 1954 having the marginal title of “Legitimacy of children of void and voidable
marriages”, runs as under:
(1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would
have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before
or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976) and whether or not
a decree of nullity is granted in respect of that marriage under this Act and whether or not marriage is held
to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 25, any child begotten
or conceived before the decree is made, who would have been the legitimate child of the parties to the
marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be
their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of
marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or
to the property of any person, other than the parents in any case where, but from the passing of this Act,
such child would have been incapable of possessing or acquiring any such rights by reason of his not
being the legitimate child of his parents.

The present position is as under:

(a) Children of an annulled voidable marriage are legitimate the same way as children of a valid marriage are.
(b) Children of annulled voidable marriage and void marriage (whether declared void or not) are legitimate but
they will inherit the property of their parents alone and of none else.

Thus, under the Hindu Marriage Act, 1955, as well as under thespecial Marriage Act, 1954, children of void
marriages or annulled voidable marriages are entitled to inherit the property of their parents and for the purpose of
succession, they are at par with the children of valid marriage1. In Rameshwari Devi v. State of Bihar2, it has been
held by the Supreme Court that the children of void marriages are recognized for taking share in family pension and
gratuity. There is no need to wait for the decision of civil court.

But status of legitimacy is conferred on children of Hindu parents whose marriage is void under section 11. If it is
void for any other reason the status of legitimacy will not be conferred on such children3. Thus, if marriage is void
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Chapter IV NULLITY OF MARRIAGE

for failure to perform requisite ceremonies, the children of such marriage will not be legitimate. The same is the
position under the Special Marriage Act, 1954, and the Parsi Marriage and Divorce Act, 1936. It has been held in
Ramkali v. Mahila Shyamwati1 that for presumption of legitimacy, existence of marriage between parties either de
facto or de jure is a condition precedent.

It has been categorically been held in Bharatha Matha v. R. Vijaya Renganathan2 that children born out of live-in-
relationship cannot claim benefit of section 16.

Void Marriage: legitimacy of Children born out of such Marriage

In the instant case it was held by the Supreme Court that a child born out of live-in relationship of a man and girl or
woman could not claim right in coparcenary property of father. And it was further held that the fiction of legitimacy
created under section 16 of the Hindu Marriage Act was limited to the extent of right in property of parents of father.
2

Grounds of Void Marriages

Grounds of void marriages under the Indian personal laws are different. Broadly speaking a marriage within
prohibited degrees of relationship and bigamous marriages (except under Muslim law where limited polygamy is
recognised) are void under all personal laws.

The grounds of void marriage under various laws are as under:

Hindu law.— Grounds of void marriage under Hindu law are the following (these grounds relate to post-Hindu
Marriage Act, 19553) marriage: (a) If at the time of marriage either party has a spouse living. (The second marriage
will be void only if the first marriage is valid. If the first marriage is void, the second marriage will be valid.) (b) If
parties are sapindas to each other unless such a marriage is permitted by custom. (c) If parties are within the
prohibited degrees or relationship, unless custom permits such a marriage. (d) If requisite ceremonies have not
been performed. If both parties are not Hindus.4 (Is not grounds of void marriage under section 11 and therefore
provisions of section 16 will not apply). This has been discussed in Chapter II.

Marriage between Hindu and other Professing Other Religion

Marriage between a Hindu and other professing other religion is null and void. The Preamble to the Hindu Marriage
Act, 1955 itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2
which deals with application of the Act, reinforces the said proposition. Section 5 thereafter also makes it clear that
a marriage may be solemnized between any two Hindus if the conditions contained in the said section were fulfilled.
The usage of the expression “may” in the opening line of the section does not make the provision of section 5
optional. On the other hand, it indicates in positive terms, that a marriage can be solemnized between two Hindus if
the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage
between two Hindus could not be solemnized. The expression “may” used in the opening words of section 5 is not
directory but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus.
Section 7 is to be read along with section 5 in that a Hindu marriage, as understood under section 5 could be
solemnized according to the ceremonies indicated therein.1

Muslim law.— Various requirements of capacity to marry under Muslim law has been discussed in Chapter II of
this work. Broadly speaking a Muslim marriage is void under all schools if it is performed in violation of the condition
of (a) consanguinity, (b) affinity, and (c) fosterage. Under the Shia law a marriage is also void on all those grounds
on which it is irregular under the Sunni law.

Christian law.—Under the Divorce Act a marriage is void on the following grounds2: (a) Respondent was impotent
at the time of the marriage and at the time of the institution of suit. (b) Parties are within the prohibited degrees of
consanguinity or affinity. (c) Either party was idiot or lunatic at the time of marriage. (d) The former husband or wife
of either party was living at the time of marriage and the marriage with such former husband or wife was then in
force. (e) The consent of either party was obtained by force or fraud3. The jurisdiction to pass a decree of nullity on
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Chapter IV NULLITY OF MARRIAGE

this ground is vested in the District Court4. Under the Act a marriage may also be declared null and void if it was
performed within six months of the confirmation of the decree of dissolution of the former marriage5 or on the
ground of non-performance of requisite formalities of marriage.

Parsi law.— Under the Parsi Marriage and Divorce Act, 1936, a marriage is void: (i) if parties are within prohibited
relationship of consanguinity or affinity, (ii) if necessary formalities of marriage have not been performed, (iii) if any
party to marriage is below requisite age of marriage6, or (iv) either party to the marriage was impotent7.

Special Marriage Act.— Under the Special Marriage Act, 1954 a marriage is void on the following grounds8: (a)
Either party has a spouse living at the time of marriage. (b) Either party was at the time of marriage incapable of
giving a valid consent in consequence of unsoundness mind or though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of
children or has been subject to recurrent attack of insanity. (c) The bride was below 18 years in age or bridegroom
was below the age of 21 years at the time of marriage. (d) Parties were within the degrees of prohibited
relationship. (e) The respondent was impotent at the time of marriage and at the time of institution of suit. (These
grounds do not apply to marriage registered under the Act.) The registration of a marriage may be cancelled on the
ground: (i) Marriage was bigamous. (ii) Either party was idiot or lunatic at the time of registration of marriage. (iii) No
valid ceremony of marriage was performed between the parties. (iv) One of the parties or both were under the age
of 21 years at the time of registration. (v) Parties are within the degrees of prohibited relationship1.

Second Marriage without Prior Divorce

The husband had not obtained decree of divorce prior to his second marriage. His second marriage would be null
and void. The first wife had abandoned him and was living with another man would not raise an inference that their
marriage stands dissolved. It was held that the unchastity of wife is a ground for divorce, could not be pressed into
service to disinherit even unchaste wife from claiming her rights as a widow in properties of husband. Finally it was
held that the first wife is entitled to succeed to his property.2

Bigamy
Law of bigamy has already been discussed in the Chapter II. A bigamous marriage is void3.

However, it should be kept in view that where a marriage is void because a person has taken a second spouse, the
spouse existing at the time of bigamous marriage cannot claim any relief under the provision of the relevant
sections of the matrimonial statutes. The right belongs to the aggrieved party of the bigamous marriage, i.e., spouse
of the second marriage.

Bigamy is a criminal offence under the Indian Penal Code, 1860, except for Muslims among whom limited polygamy
is permitted. But a Muslim woman taking a second husband during the lifetime of her former husband is guilty of
bigamy. Under thehindu Marriage Act, 19554, and the Special Marriage Act, 19545, also bigamy is a criminal
offence. For marrying again during the lifetime of spouse, punishment under section 494 of the Indian Penal Code,
1860 is for a term of imprisonment which may extend to seven years as well as a fine.

If the previous marriage is concealed then punishment is a term of imprisonment which may extend to ten years
and also a fine6.

A bigamous marriage is also void under Parsi law and Christian law, and the spouse committing the offence can be
prosecuted under the Indian Penal Code, 1860, as stated above in reference to Hindus.

In the Hindu Marriage Act, 1955, there is a State amendment by the State of Tamil Nadu, which has inserted
section 7A. The said section applies to any marriage between two Hindus solemnized in the presence of relatives,
friends or other persons. The main thrust of this provision is that the presence of a priest is not necessary for the
performance of a valid marriage. Parties can enter into a marriage in the presence of relatives or friends or other
persons and each party to the marriage should declare in the language understood by the parties that each takes
the other to be his wife or, as the case may be, her husband, and the marriage would be completed by a simple
ceremony requiring the parties to the marriage to garland each other or put a ring upon any finger of the other or tie
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Chapter IV NULLITY OF MARRIAGE

a thali (Mangalasutra). Any of these ceremonies would be sufficient to complete a valid marriage. Sub-section (2)(a)
of section 7A specifically says that notwithstanding anything contained in section 7, all marriages to which this
provision applies and solemnized after the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act,
1967, shall be good and valid in law.1

Bigamous marriage is void.— Bigamous marriages are void (and not merely voidable) among all communities in
India with the exception of Muslims among whom polygamy limited to four wives is allowed.

In Yamuna Bai v. Anant Rao,2it was pleaded that under Hindu law bigamous marriage is merely voidable since
polygamous marriage were valid prior to the coming into force of the Hindu Marriage Act, 1955, those marriages
performed after the coming into force of the Act should be treated as merely voidable. One wonders at its logic. The
Supreme Court reiterated the well-established position. Thus the marriage covered by section 11 of the Hindu
Marriage Act, 1955 is void from the very inception, and has to be ignored as not existing in law at all if and when
such question arises. It has consistently being held that bigamous marriages are void. Where marriage was alleged
to have been dissolved by custom and custom was not proved, subsequent marriage was held to be void.3 But
where the custom dissolving the marriage was proved, decree of nullity was denied to the husband who alleged
subsequent marriage to be void being bigamous. Where wife had concealed an earlier marriage and she admitted
this fact for the first time in the written statement, the performance of second marriage can be annulled as void.4
Where husband kept company of another wife while his first wife was alive and not divorced, status of the second
woman is that of a mistress and on the death of the man she cannot apply for succession certificate.5The spouse of
the existing marriage may, however, bring a declaratory suit under section 9 of the Code of Civil Procedure, 1908
read with section 43 of the Specific Relief Act, 19631.

In Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga,2 wife was never granted a decree
of divorce. She only possessed a registered document called Chhor chitthi which was also not customarily
recognized in her community. Therefore, her previous marriage was held to be subsisting hence the subsequent
marriage was held void. Where husband had married again without obtaining decree of divorce, such marriage
would be void. His plea was that his first wife had abandoned him and was living with another man. This fact would
not automatically dissolve his first marriage. Decree of divorce from a competent court is essential.3 Where wife
could not prove custom of divorce by intervention of respectable persons of the community second marriage would
be void.4

Wife had spouse living at the time of marriage merely because such “marriage” was there for a considerable period
of time, it would be declared void. Collusion can also be not pleaded.5

Where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty
of bigamy under section 494, IPC if it is proved that the second marriage was a valid one in the sense that the
necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage
under section 17 of the Hindu Marriage Act is infact one of the essential ingredients of section 494, IPC because
the second marriage will become void, only because of the provisions of section 17 of the Hindu Marriage Act. What
section 17 the Hindu Marriage Act contemplates is that the second marriage must be according to the ceremonies
required by law. If the marriage is void, its voidness would only lead to civil consequences arising from such
marriage. Section 17 of the Hindu Marriage Act has to be read in harmony and conjunction with section 494, IPC.
Therefore, merely because the second marriage is void, under section 17 of the Hindu Marriage Act, it cannot be
said that section 494 will not be attracted.6

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.

The necessary ingredients of section 494 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. 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 second marriage is void by reason of its taking
place during the life of the first wife.1

Whether a spouse can bring injunction restraining the other from performing a bigamous marriages.—The
question has come for consideration before the High Courts under Hindu law: Whether a wife may seek an
injunction against her husband forbidding him to take a second wife. The Patna High Court in Umashankar v.
Radhadevi2, said that there is no provision in the Hindu Marriage Act, 1955 under which a wife, apprehending her
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Chapter IV NULLITY OF MARRIAGE

husband’s taking second wife, can apply for and obtain an injunction restraining him from doing so. The court said
that she cannot do so under section 11 or section 17 or any other provision of the Act. But it seems that though the
first wife cannot file proceedings for injunction against husband under the Hindu Marriage Act, 1955, she can file a
suit for perpetual injunction restraining the husband from contracting a second marriage, under section 9 of the
Code of Civil Procedure, 1908 read with section 38 Specific Relief Act, 1963. The Mysore High Court took this view
in Shankarappa v. Basamma,3Iyer, J., said that there was nothing expressly or impliedly in the Hindu Marriage Act,
1955 to bar such a suit4.

When husband takes a second wife, the first wife has no remedy under the Hindu Marriage Act, 1955, except that
she may sue for divorce alleging that her husband is living in adultery. However, under thespecific Relief Act, 1963,5
she may sue for a declaration that the second marriage of her husband is null and void.

Degrees of Prohibited Relationship

In all systems of law all over the world, including all the Indian personal laws, a marriage in violation of the
requirement of prohibited degrees, is void. However, under Hindu Marriage Act, 1955 and thespecial Marriage Act,
1954, if a custom permits a marriage between the persons who are either related to each other as sapindas or who
are within the degrees of prohibited relationship, then the marriage will be valid.

In the preceding Chapter of this work degrees of prohibited relationship have been discussed in detail.

Under Hindu Marriage Act, 1955, persons marrying in violation of prohibited relationship or sapinda relationship are
liable to a term of simple imprisonment which may extend to one month or a fine which may extend to Rs. 1000 or
with both6.

No such punishment is provided under any other Indian Matrimonial statutes.

Under the Indian law, a marriage with a person coming within prohibited

relationship is not a criminal offence. Under English law, on the other hand, it is a criminal offence for a man
knowingly to have sexual intercourse with his daughter, grand daughter, mother or sister but not with his niece or
aunt1.

Non-age
In the preceding Chapter of this work, it has been stated that under the Hindu Marriage Act, 1955 non-age does not
render the marriage void; marriage remains valid, though the spouses performing such a marriage may be
sentenced to a term of simple imprisonment which may extend to 15 days or with fine which may extend to Rs.
1000 or with both2, Under the Special Marriage Act, 1954, such a marriage is void. A minor’s marriage without the
consent of guardian is void under Parsi law as well as Christian law. Under Muslim law even when a minor is
married by his father or guardian he can repudiate the marriage on attaining majority.

See for details, under the title “Minor’s Marriage under Muslim law: Repudiation of Marriage and option of Puberty”
towards the end of this chapter.

Insanity
As has been seen in the preceding Chapter, pre-marriage insanity is a ground of void marriage under the Special
Marriage Act, 1954 and the Indian Divorce Act, 1869 while under thehindu Marriage Act, 1955 it is a ground of
voidable marriage. As has been seen earlier under thespecial Marriage Act, 1954 and the Hindu Marriage Act, 1955
the clauses are in identical language, while under the Parsi Marriage and Divorce Act, 1936, pre-marriage insanity
is a ground of divorce. Clause (b) of section 32 is worded thus: “that defendant at the time of the marriage was of
unsound mind and has been habitually so upto the date of the suit.” Under the Indian Divorce Act, 1869, section
19(3), lays down “that either party was a lunatic or idiot at the time of the marriage”.
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Chapter IV NULLITY OF MARRIAGE

All aspects of pre-marriage insanity have been discussed in the preceding chapter.

Grounds of Voidable Marriages

Just as grounds of void marriage differ in the Indian personal laws so do the grounds of voidable marriage.
Sometime a ground is a ground of void marriage under one statute and ground of voidable under another. Thus,
under the Indian Divorce Act, 18693 and the Special Marriage Act, 19544, impotency is a ground of void marriage,
while under Hindu Marriage Act, 1955 it is a ground of voidable marriage5. Under the Parsi Marriage and Divorce
Act, 1936, it is a ground for divorce. The grounds of voidable marriage under the Indian personal laws are as under:

Hindu law.—Under the Hindu Marriage Act, 1955, a marriage is voidable on the following grounds6: (i) Failure of
the respondent to consummate the marriage on account of impotency. (This is a ground of void marriage under the
Special Marriage Act, 1954,Parsi Marriage and Divorce Act, 1936 and Indian Divorce Act, 1869.) (ii) Incapacity of
the respondent to give a valid consent in consequence of unsoundness of mind, or though capable of giving valid
consent respondent was suffering from mental disorder of such a kind or to such an extent as to be unfit for
marriage and procreation of children or respondent was subject to recurrent attacks of insanity of epilepsy. (This is
a ground of void marriage under thespecial Marriage Act, 1954 and the Indian Divorce Act, 1869 and a ground of
divorce under Parsi Marriage and Divorce Act, 1936.) (iii) Respondent’s pregnancy at the time of marriage of which
the petitioner was not the cause and of which petitioner was ignorant at the time of marriage, and the petition is
brought within one year of the solemnization of marriage, and further that the petitioner has had no marital
intercourse with the respondent after the knowledge of respondent’s pregnancy. (This is ground for divorce under
the Parsi Marriage and Divorce Act, 1936.) (iv) Petitioner’s consent (or of the guardian of minor’s whose marriage
was performed before 1978) was obtained by force or fraud as to the nature of ceremony or as to any material fact
or circumstances, concerning the respondent, provided that the petitioner did not live with the respondent as
husband or wife after the discovery of fraud or cessation of force, and provided further that the petition was
presented within one year of the discovery of fraud or cessation of force. (This is a ground of void marriage under
Indian Divorce Act, 1869.)

In a case, the petition was filed by husband on the ground of cruelty. The wife filed a criminal case against husband
and her in-laws which was held to be not proved by criminal court. The wife also filed a case of maintenance which
was granted. The said two factors proved strong desire of wife to be disassociated with husband and matrimonial
home as a whole. The husband proved that he was subjected to mental cruelty by producing evidence. The
spouses lived separately for 13 years. It was held that the order refusing to grant maintenance was not proper.1

Parsi and Christian law.— Under the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1869, the
notion of voidable marriage is not recognized, and therefore there is nothing like a voidable marriage under these
statutes.

Special Marriage act.— Under the Special Marriage Act, 1954 a marriage is voidable on the following grounds2:
(a) Non-consummation of marriage on account of wilful refusal of respondent to do so. (b) Pre-marriage pregnancy
of the respondent of which the petitioner was not the cause and of which the petitioner was at the time of the
marriage ignorant and marital intercourse has not taken place with the consent of the petitioner after the knowledge
of pregnancy, and that the petition is presented within a year from the date of marriage. (c) Petitioner’s consent was
obtained by fraud or force, provided that the petitioner did not live with the respondent as husband or wife after the
discovery of fraud or cessation of force and provided further that the petition was presented within one year of the
discovery of fraud or cessation of force.

Impotency
under the Pre-act Hindu law.— Under the modern Hindu law marriage of an impotent person is voidable1. Under
the pre-1955 Hindu law there has been a controversy among the High Courts: One set of High Courts taking the
view that such a marriage was void2 others holding that such a marriage was valid3. It is submitted that even though
there is no direct Sastraic text, it would be wrong to say that our sages were in favour of validity of the marriage of
an impotent person.
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Chapter IV NULLITY OF MARRIAGE

In the first edition of this work, pre-Act law of impotency has been discussed in detail but that discussion is omitted
from this edition, as it is no more than an of academic use.

Impotency: Non-consummation of Marriage owing to Impotence under Modern law.— In the modern law
there is still a controversy on the question whether the marriage of impotent person should be null and void or
merely voidable. The reason seems to be this: Just as under Hindu law so under some other systems, impotency
related to the physical capacity of the parties or incapacity to consummate the marriage, and if this capacity was
lacking, marriage was treated as null and void. The notion was that if at the time of the solemnization of the
marriage any party lacked capacity to consummate the marriage, no marriage could come into existence. In short,
the physical capacity was as much a basic requirement of marriage as mental capacity. Thus just as lack of consent
rendered a marriage void, so did lack of physical capacity to consummate a marriage. This continued to be the
position in England till the Reformation. Thereabout the notion underwent a change and English law began
regarding lack of physical capacity to consummate the marriage as a ground of voidable marriage. In the modern
law of most countries, this is the position. Today it is realized that two persons may marry for companionship, where
sex becomes immaterial. It may be recalled that the sole purpose of Hindu marriage has never been performance
of sexual intercourse, or even procreation of children. In no society this can be the sole purpose. One may marry
solely for companionship and comfort. Two persons who have no sex may marry each other and live happily all
their life. Even when one spouse has no sex, the other may not find it difficult to live with her/him. He may be quite
comfortable and happy in the union. Then why stigmatise such a marriage as void. For instance, in Morgan v.
Morgan,4 a male of 72 married a woman of 59 and they were clear in their mind, when they married that their
relationship was to be one of companionship only. The English Court refused to annul the marriage on the petition
of the husband as it felt that to do so would be contrary to justice and public policy. In the modern society the matter
has to be looked at from the point of view of individual liberty. Should a person not have freedom to marry a spouse
who has some blemish, even such a fundamental blemish as impotency? Happiness is an individual choice and if a
person chooses to live happily with an impotent person, why law should interfere in his happiness by holding that
his marriage is void. It would be left to his choice whether or not he wants to avoid it.

But in India, we are not clear in our policy: under the two modern statutes, the Hindu Marriage Act, 1955 and
thespecial Marriage Act, 1954, Legislature has laid down that under one the marriage of an impotent person is void
and under the other it is voidable. It is submitted that under all statutes it should be laid down that marriage of an
impotent person is voidable.

The clause relating to impotency is differently worded in the different matrimonial statutes. Under the Special
Marriage Act, 19541, Dissolution of Muslim Marriages Act, 19392 and the Indian Divorce Act, 18693it is worded thus:
respondent was impotent at the time of marriage and continued to be so till the presentation of the petition. Under
the Hindu Marriage Act, 19554, the clause runs thus: “marriage has not been consummated on account of the
impotence of the respondent”5, while under the Parsi Marriage and Divorce Act, 19366 the clause is framed thus: “in
any case where consummation of the marriage is from natural cause impossible”.

Under the Special Marriage Act, 1954, Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936, it is
a ground for nullity, while under the Hindu Marriage Act, 1955, it is a ground of voidable marriage. Under the
Dissolution of Muslim Marriage Act, 1939, it is a ground for divorce.

Basically, impotency under all the matrimonial statutes has the same meaning with minor differences. For instance,
under the Hindu Marriage Act, 1955 originally the words of the clause were “respondent was impotent at the time of
marriage...” (These were and are the wording under thespecial Marriage Act, 1954, the Indian Divorce Act, 1869
and Dissolution of Muslim Marriage Act, 1939), and these created some difficulty in those cases where the couple
was too young to consummate the marriage at the time of marriage. In such cases, it would be difficult to say that
one of them was impotent at the time of marriage. In Bawi v. Nath,7 the Jammu and Kashmir High Court interpreted
the words “at the time of marriage” to mean “at the time of consummation of marriage”. The new clause solves this
difficulty. The new clause now almost similar to analogous clause in the Matrimonial Clauses Act, 1973, “that the
marriage has not been consummated owing to the incapacity of either party to consummate it”1.

Impotency: meaning.— A person is impotent if his physical or mental condition make consummation of marriage a
practical impossibility. Impotency may arise on account of physical defect or mental condition such as total
repugnance to the sexual act. It may be well arise qua a person, qua the other spouse quoad hune or hane. In
other words, invincible and persistent repugnancy on the part of the respondent to the act of consummation
amounts to impotency2.
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Chapter IV NULLITY OF MARRIAGE

It is also necessary that impotency should be incurable or “curable only by an operation attended with danger”.
However, there does not seem to be much difference between the expressions ‘incapacity’ or ‘incurable incapacity’.
For instance, if incapacity is not incurable than it is not incapacity. A person who is capable of consummation of
marriage after a surgical operation or medical treatment cannot be called impotent3. Impotency means inability to
perform sexual act4. Impotency means practical impossibility to perform sexual intercourse in complete and perfect
manner.5 But where wife’s organs were not developed and sexual intercourse was not possible nullity of marriage
was granted.6 Consummation is sometimes referred to as vera copula. Consummation is a question of fact. Vera
capula consists of erection, intromission, i.e., erection and penetration by the male of the female for a reasonable
length of time7. It is different from adultery and rape where any penetration suffices. It is not necessary for either
party to have orgasm. If there is no penetration, the respondent will be taken to be impotent, even if a child has
been conceived by fucundatio ab extra8. Full and complete penetration is an ingredient of ordinary and complete
intercourse, though degree of satisfaction arrived at by a party or parties is irrelevant9. If one spouse is under-sexed
or over-sexed, it is not impotency1. Sexual intercourse which is incomplete occasionally does not amount to
impotency2. In the case of a wife who lacks uterus, if there be reasonable probability that the lady can be made
capable of vera capula though without power of conception, then it does not amount to impotency. But, if, on the
other hand, she cannot be made so capable or capable of no more than an incipient, imperfect and unnatural
coitus, then she is impotent3.

A transient penetration does not amount to consummation4. However, ejaculation is irrelevant. A marriage may be
consummated despite the use of contraceptive devices5.

Impotency may be:

(a) physical, or
(b) mental.

Physical Impotency.— Physical impotency denotes malformation of, or structural defect in the sexual organs, thus
unusually large male organ6 or abnormally small vagina7 are instances of physical impotency, M. v. S.8 and
Ganeshji v. Hestuben9 are instances where the wife on account of structural malformation of vagina was not
capable to have normal sexual intercourse. But in both cases she underwent surgical operation as a result of which
she became capable of having sexual intercourse. It was held that she was not impotent. In Laxmi v. Babulal10, the
wife had no vagina, but by a surgical operation an artificial

vagina of about 21/2” deep was constructed. In this case the Rajasthan High Court held that it did not remove wife’s
impotency. The Court distinguished Ganeshji

v. Hestuben9, by saying that that was a case of undersized vagina, while this was a case of no vagina. On the other
in Rajendar Pershad Bhardwaj v. Shanti Devi11,

where the size of vagina was after surgical operation 1 1/2 ” deep the court said that the wife was not impotent. It is
submitted that if the test of impotency is incapacity of sexual intercourse and if sexual intercourse is possible, the
party

cannot be said to be impotent. In view of this, Laxmi v. Babulal10 has not been decided correctly. The courts have
not laid down the test as “intercourse to the satisfaction of the petitioner”. The test is: “capacity to intercourse”. If a
person is able to have intercourse with his wife even once and might be because wife lured him into it or seduced
him, he could not be called impotent1.

Psychological Impotency.— In modern law, many cases of impotency do not relate to physical incapacity but
psychological impotency. It is often on account of mental, psychological and emotional reasons that a person is not
able to bring himself to sexual act. The psychological impotence may be general: a total abhorrence to sexual
intercourse with any person. It may also be qua an individual. What is called quoad hune or hane. In other words,
respondent is capable of having sex with any person either his or her spouse. Thus a spouse who suffers from
invincible repugnancy to have sexual intercourse with the other is to be regarded as the one who is incapable of
consummating the marriage on account of impotency. In Jagdish Kumar v. Sita Devi2, after the marriage spouses
lived together for three nights and days in the same room,

but husband failed to consummate the marriage, on account of his incapacity, nervousness or hysteria. It was held
that he was impotent3. On the other hand, in M. v. S.4, on the first night after marriage when parties were together
 Page 14 of 44
Chapter IV NULLITY OF MARRIAGE

all alone, the wife refused to allow the husband to consummate the marriage saying that she was forced to marry
him against her wishes. It was held that no inference can be drawn that wife was impotent5. If impotency is qua the
petitioner, it is also a case of psychological impotency.6

Where wife did not menstruate but was otherwise not impotent, i.e., was not incapable of consummating marriage.
But her conduct towards sex was cold and repugnant, the husband was held entitled to decree of nullity.7

Barrenness and Sterility.— Whether barrenness and sterility amount to impotency? The clause as worded in all
the matrimonial statutes and as has been interpreted by the courts in India and abroad does not lay down that
fertility is part of potency. In England in 1970, the Law Commission was required to give its opinion as to whether
sterility should be made a separate ground of voidable marriage and it rejected the suggestion. Thus, in English
case, S. v. S.8, the wife never menstruated, had no uterus, and could not conceive, she had vaginal estresia, that is
an incipient vagina in the form of a cul-de-sac, it being possible to extend the passage by plastic surgery so as to
admit of full penetration. It was held that wife was not impotent. Raghavachariar takes the view, “Barrenness and
sterility by themselves cannot and do not prove impotency, however, long had been the period of such defect.
Inability to beget and bear children is not a ground for dissolving the marriage if it is not proved that there was no
power of complete copulation. If the wife is capable of vera copula and natural coitus, the absence of procreative or
conceptive power is not a ground for a decree. Barrenness is said in no sense to be synonym of impotency and
even the removal of the genital organs cannot be said to render the wife incapable of entering into the marriage”.1
Incapacity to give birth is not impotency.2Derrett says, “It may be doubtful whether the law is adequate which holds
a wife not to be impotent if her genitals are sufficiently formed for the husband to obtain orgasm, though there is no
proper penetration and there is neither womb nor ovaries. One wonders whether it is sound law which obliges a
wife to continue in her marriage when her husband is sterilized. The religious and social and traditional desires for
off-spring is not confined to males”3. A Division Bench of the Andhra Pradesh High Court said that “potence” in case
of males means power of erection of male organ plus discharge of healthy semen containing living spermatozoa,
and in the case of females menses4. A different view was expressed in Prajapati Ganeshji Idaji v. Hastuben
Hemraj5. In Shewanti v. Bhaura,6 on the medical evidence it was established that the wife was suffering from
sterility and amenorrhoea, i.e., no menstruation. It was also proved that even by surgery these defects could not be
cured. On the other hand, it was fully established that she was capable of having sexual intercourse though not of
bearing children. Singh, J., said: “By the use of the word ‘impotent’, the Legislature did not intend to bring in the
idea of sterility or incapacity of conception: impotency here signifies incapacity to consummate the marriage. In
other words, incapacity to have normal sexual intercourse. It is possible that a person may be sterile, still he or she
may be capable of conjugal intercourse”7. The amendment of 1976 upheld this view. Failure to consummate the
marriage by the respondent on account of his impotency has been made a ground of annulment of marriage. Most
people in the world desire to have offspring. It is submitted that it may be desirable to include natural or surgical
sterility in the definition of impotency. In Benjamin Doming Cardoza v. Gladys Benjamin,8 petition for nullity was
granted on the ground that consent was obtained by wife by concealing the fact that she was unable to bear
children.

Obviously, if one knowingly marries a sterile person one cannot be permitted to get the marriage annulled1.

Marriage with Eunuch.—What is the status of eunuch? It is submitted that an eunuch can be equated with an
impotent person and in systems where marriage with an impotent person is voidable, the marriage with eunuch will
also be voidable. On account of non-formation of sex organs, an eunuch is obviously incapable of consummating
the marriage. But is such a marriage void? Obviously, a marriage between two males or two females is void. But is
it necessary that of the two parties, one must be male and the other must be a female or is it enough to say that one
of them should be a male and other non-male or one female and the other non-female. In an English case, Corbett
v. Corbett2, a marriage took place between a male and another person who was registered at birth as of the male
sex, though, before marriage, he had undergone a sex-change operation, consisting of removal of the testicles and
most of the scrotum and the formation of an artificial vagina in front of the anus, and, since then, lived as woman.
On the husband’s petition’s for a declaration that the marriage was null and void, the court said that marriage being
essentially a relationship between man and woman, the validity of the marriage depended as to whether the
respondent was or was not a woman and, the respondent being a biological male from birth, the so-called marriage
was void. Thus, the plain question is, as Ormord, J., said, if marriage is regarded essentially a relationship between
man and woman, a marriage will be void if it is not union between a male and a female3. This will also imply that if
both parties are eunuchs the marriage will be void. In India eunuchs live in female attire, though some wear male
attire too. Usually they are outside the pale of marriage and constitute a class which earn its livelihood by singing
and dancing on the occasions of births and marriages. Ordinarily, no one denies them their due. Sometimes,
eunuchs are brought up in families either as male or female and marriages do take place of such persons with
opposite sexes, i.e., if the eunuch is brought up as male (i.e., in male attire) he is married to a female, or if brought
 Page 15 of 44
Chapter IV NULLITY OF MARRIAGE

up as female, she is married to a male. One such case came up before the Madras High Court4 where wife was a
eunuch. The question of validity of her marriage arose after the death of the husband as a collateral issue. Alagiri
Swami, J., equated such a person with an impotent person and said that though marriage was invalid, but it was
invalid in the sense that it was voidable and the only person who could get it annulled was the husband, who being
dead, the validity of the marriage could not be questioned. It is submitted that the judgment is correct. A marriage
between two persons of the same sex is void ab initio, but a marriage between a person, male or female and a
person who is eunuch or neuter need not be void, and it is not void under our law. The same is true about a
marriage between two eunuchs or two neuters. In the later case the one who lives as male will be the husband and
the one who lives as female will be the wife. It may be recalled that the sole purpose of Hindu marriage has never
been the performance of sexual intercourse or procreation of children. In no society that can be the sole purpose.
One may marry solely for companionship. It was in this context that Medhatithi said that eunuchs have prima facie a
right to marry1. Such will be the case of an impotent marrying another impotent or eunuch: or one eunuch marrying
another. There may also be a case where a potent person may happily live with his or her spouse who is impotent
or eunuch. Even today for many Hindus, sex does not occupy an omnipotent position. In case such a couple
desires to have children, they can take recourse to adoption. If after the marriage, if one of them finds it difficult to
live in such a wedlock, he may get the marriage annulled. It is submitted that the marriage of an impotent or eunuch
should be voidable at the instance of either party.

Approbation and doctrine of sincerity: In England this seems to be a firmly established doctrine that if a voidable
marriage has been approbated, a decree annulling the marriage cannot be passed. If a party has accepted the
benefit available in a married state, he cannot be successful later on in getting a decree of annulment of marriage2.
Where parties jointly apply for adoption of a child on the assumption that their marriage is valid, then later on they
are debarred from asserting that their marriage is invalid. The adoption of the child in consistent with the
approbation of marriage in most unequivocal character3. Similarly, when parties agree to the wife being artificially
inseminated, it is approbation of marriage4. Thus, the English doctrine of approbation implies that by marrying an
impotent person, if the other spouse has benefited, or where marriage has been approbated, such as in cases
where marriage takes place at an advance age of the parties, with the full knowledge that sexual enjoyment would
be gravely impaired or curtailed or precluded, the marriage cannot be annulled on the ground of the impotency of
the respondent. The doctrine of approbation extends even to those cases where the husband was able to obtain
sexual relief from his wife’s vagina which was only one inch and half deep though normal or full penetration was
impossible. It may be noted that the rule does not operate in Scotland5. Is this doctrine a part of Hindu law? Derrett
holds the view: “It is a rule of justice, equity and good conscience and is international”6. He thinks that it may come
under section 23(1)(e) of the Hindu Marriage Act, 1955 as it is one of the other legal grounds on which the courts
have power to dismiss the petition or probably it may come under section 23(1)(a) of the Act, taking advantage of
one’s own wrong, if the petitioner at the time of marriage knew that respondent was impotent. Under English law
even if approbation is proved the court has discretion as to what weight is to be given to it. The matter came for
consideration before the Delhi High Court inS. v. R.7Parties were married in 1943 and they separated in 1956. A
petition for annulment of marriage on the ground of husband’s impotency was filed in 1962. The main advantage
that was alleged to have been taken by the wife was that she received certain properties in gift from her husband
and she was also allowed certain pecuniary advantages by him. The Division Bench was of the opinion that
sections 11 to 28 of the Hindu Marriage Act, 1955, formed a complete code as regards the law of nullity and
divorce, and therefore, the courts were not allowed to fall back on the English common law. The court held that the
doctrine was not a part of Hindu law1. It is submitted because a doctrine or principle exists in English law, it is not
necessary for the courts to say that it is also part of Hindu law. Secondly, our social conditions, where people
traditionally want a marriage gets going whatever be the difficulty, and usually allow sufficient time to lapse before
they go to the court, does not warrant the adoption of the doctrine.

See also Chapter XI, under the head “Improper or Unnecessary Delay”, where a few more Indian cases have been
discussed.

Can an impotent spouse sue for annulment of the marriage.— Under English law either party can sue for
annulment of the marriage2. An impotent spouse may petition on the ground of his own impotence. In English
common law there were three exceptions to this rule: (a) where the petitioner himself being aware of his own
impotence had knowingly deceived the other spouse into contracting the marriage, (b) where one married the other
knowingfully well that he or she was impotent, and (c) decree of nullity should not be granted regardless of all
circumstances, i.e., whether it is just and equitable to grant relief to the petitioner3.

Under no matrimonial statute in India can be impotent spouse himself sue for nullity of marriage except under the
Parsi Marriage and Divorce Act, 1963 where either spouse can sue for nullity of marriage4. The petition for divorce
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has to be filed by the non-impotent spouse. The statutes lay down that respondent was impotent at the time of the
marriage or the respondent has failed to consummate the marriage on account of impotency or for natural causes.

Burden of proof and medical evidence of impotency.— As a general rule, is it for the petitioner to prove that
consummation of marriage has not taken place. On the part of the petitioner it is not enough to show that the
respondent has no interest in the marriage or that he or she has inclination for religious life. The petitioner must
prove that respondent is impotent or he or she has not been able to consummate the marriage on account of his or
her impotency. But the court may draw an inference of impotency where intercourse has not taken place over a
long period of time. Some of the High Courts take the view that where only testimony available is that of one of the
spouse, corroboration is not necessary if that testimony is reliable5.

However, where wife lived with the husband for 11 years and then alleged that he had no ability to have sexual
intercourse and then somehow she became pregnant allegedly in the absence of any vaginal contact and gave birth
to a child. Any evidence showing that marriage was not consummated was absent. No medical certificate was
produced. Wife was held not entitled to the decree.1

There exists some controversy among the High Courts as to whether medical evidence is admissible in proof of
impotency as a ground for annulment of marriage. The High Courts holding that medical evidence is not admissible
give two-fold arguments: (i) There is no provision under the Indian Evidence Act, 1872, under which a party can be
compelled to be examined by a physician. (They hold that apart from cases of lunacy there is no statutory provision
enabling a court to compel a person to undergo medical examination.) When a party refuses to undergo medical
examination, the courts are free to draw adverse inference against the party refusing to undergo medical
examination2. (ii) The second argument is that a compulsion to undergo medical examination is an interference with
the personal liberty of a citizen and such personal liberty could only be interfered with under the provision of any
penal enactment or in exercise of any other coercive process vested in the court3. The Karnataka High Court has
generalized this argument: “In a case where a party alleges that a person is impotent or suffering from other
incurable disease, it is for the person making such an allegation to prove the same. A party cannot be compelled to
undergo medical examination”4.

On the other hand, those High Courts which take the contrary view argue that the court possesses a very wide
discretion either under the general law or under its inherent powers to orders the physical examination including
medical examination of person, though in passing such an order they do so subject to such conditions as will afford
protection from violence to natural delicacy and sensibility5.

Wife filed petition under this provision. The court held that to ascertain the truth, husband has to be medically
examined and the court invoked its inherent power and ordered medical examination. It was held that this does not
infringe fundamental rights of husband under Articles 21, 20(3) of the Constitution.6[146]

In B. Madan v. N.S. Santhakumari,7 the constitutional validity of subjecting the parties to andrological and
gynecological tests to determine potency of parties was challenged as violative of Article 21, right to privacy. It was
held that medical test to decide whether the marriage has not been consummated owing to impotence of husband
is not against his privacy and hence such an order is not improper.

In G. Venkatnarayana v. Karupati Laxmi Devi1, the Andhra Pradesh High Court has subscribed to the second view.
Rama Rao, J., observed: “The physician as an expert witness has become a common and welcome feature in
courts ranging from opinions on nature and degree of injuries to the proximate cause of death in criminal cases,
assessment of insanity and several other situations. Where there is a dispute between the wife and husband about
the potency of either of them, their evidence reflected by truth constitutes the cream of evidence and the
marshalling of adventitious of extraneous circumstances afford a poor substitute. In the event of diametrically
opposite and rival versions of the parties, the recourse to medical test resolves the riddle and the medical opinion
assumes the acceptable piece of evidence” 1. The court held that there was nothing in section 14 of the Indian
Evidence Act, 1872, which excluded examination of mental or bodily state of a person and there was no deprivation
of personal liberty under article 21 of the Constitution involved in the medical examination of human body. This, it is
submitted, is both a legally correct and socially just decision.

Where a medical board has failed to examine all aspects of impotency of the respondent-wife, the fault lies with the
husband who should have taken care to get her examined thoroughly2. But where on wife’s petition for nullity on the
ground of husbands impotency she refused to get herself examined to prove whether marriage was consummated
or not and the husband got himself examined and proved to be potent, the petition was dismissed.3 It has also been
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held in Ravulapalli Yogamma v. Thelamekala Venkataratnam,4 that no time is stipulated for a petition under section
12(1)(a). Rejection of application on the ground that it was filed within one year of marriage is not proper.

Pre-marriage Insanity
Pre-marriage insanity has already been discussed in Chapter II. It has also been stated that under the Special
Marriage Act, 1954 and the Indian Divorce Act, 1869 it is a ground of void marriage. Under thehindu Marriage Act,
1955 it is ground for voidable marriage5.

All aspects of insanity have been discussed in the Chapter II.

Pre-marriage Pregnancy
Pre-marriage pregnancy is a ground of voidable marriage under the Hindu Marriage Act, 19556 and the Special
Marriage Act, 19547, and of divorce under the Parsi Marriage and Divorce Act, 1936. Under no other Indian
personal law, it is ground for any matrimonial cause.

In English Law also it is a ground for voidable marriage8.

This ground of voidable marriage has been borrowed from English law, where

concealment of pre-marriage pregnancy was treated as a special case of fraud. Though pre marriage pregnancy is
not a ground of voidable marriage under the Indian Divorce Act, in P.V. Sabu v. Mariakutty1, where the wife
delivered a normal child after 203 days of marriage, it was concluded that she was pregnant at the time of marriage
and that the husband had no access to her before marriage. Since pregnancy was concealed from him, he was
granted decree for nullity as a fraud was played on him. However, there were some difficulties in granting relief on
the basis of fraudulent or wilful concealment of material facts. The result was that the Matrimonial Causes Act,
1937, made it as a separate ground of voidable marriage. Since then it has been so regarded and has been
reenacted in the Matrimonial Causes Act, 19732. It is also designated as pregnancy per alium.

Although inspiration of enacting this as a ground of voidable marriage is English matrimonial law, the
Dharmashastra also dwells on the subject. According to the Dharmashastra, if a man knowingly marries a pregnant
woman, she is his wife and the child born to her is his child—such a child was called sahodaja. But if he married her
without any knowledge of her pregnancy, he has the right to repudiate the marriage and return the woman to her
father3. These twin aspects of marrying a woman who was pregnant at the time of marriage have found a place in
the modern law also. Under the modern law, pre-marriage pregnancy is a separate ground of voidable marriage.
Wife delivered child within 6 months of marriage. She refused to undergo DNA test. Husband had no access to her
when child was conceived. Husband was entitled to decree.4 Yet it is an attempt to foist somebody else’s child on
the man who had married such a woman.

Hindu Marriage Act and Special Marriage Act.— Under the Hindu Marriage Act, 1955, clause (d) of sub-section
(1) of section 12 runs as under:

That the respondent was at the time of marriage pregnant by some person other than the petitioner.

This clause should be read along with clause (b) of sub-section (2) of section 12 which lays down qualifications to
the ground. Clause (b) of sub-section (2) of section 12 provides:

A petition on the ground of concealment of pre-marriage pregnancy will not be entertained unless the court is
satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of
this Act within one year of such commencement and in case of marriages solemnized after such
commencement within one year from the date of such marriage; and
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(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the
petitioner of the existence of the said ground1.

The provision under the Special Marriage Act, 1954 is identical2.

In a case3 under section 12, the court observed that there was no satisfactory

evidence adduced by appellant husband to prove that respondent wife and her parents made any suppression of
facts or committed any fraud or misrepresentation in bringing about the marriage between appellant and
respondent. The plea of appellant that the marriage was liable to be annulled on that ground, was held on facts,
rightly rejected by courts.

Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the
section are fulfilled. Amongst the other conditions stated therein, sub-section (ii) lays down that at the time of
marriage neither party is incapable of giving valid consent to it in consequence of unsoundness of mind or though
capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu
marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and
section 12(1)

(b) lays down that any marriage shall be voidable and may be annulled if the marriage is in contravention of the
condition specified in clause (ii) of section 5. On a plain reading of the said provision, it is manifest that the
conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per
se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof.
The onus of proof is very heavy on the party who approaches the court for breaking a marriage already
solemnized.4[163]

Parsi Law.— The provision under the Parsi Marriage and Divorce Act, 1936, is also similar with this modification
that period of limitation from that date of marriage for filing the suit for divorce on this ground is two years and not
one year as under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

Pre-marriage pregnancy and not unchastity.— This ground of voidable marriage stipulates pre-marriage
pregnancy and not pre-marriage unchastity5. May be the woman was unchaste before marriage, may be she had
delivered an illegitimate child, or may be she had undergone abortions. None of these facts entitle a man to file a
petition for annulment of marriage. The rationale is not premarriage unchastity or immorality of the wife but
attempting to foist somebody else’s child on the husband.

Requirements of the ground.— The requirement of this ground of voidable marriage are:
(a) The respondent was pregnant at the time of the marriage.
(b) She was pregnant from a person other than the petitioner.
(c) The petitioner was unaware of the respondent’s pregnancy at the time of the marriage.
(d) The petition must be presented within one year of the marriage (in case of pre-Hindu Marriage Act, 1955,
the petition should be presented within one year of the commencement of the Act, and under the Parsi
Marriage and Divorce Act, 1936, the suit for divorce should be filed within two years of the marriages).
(e) The petitioner did not had marital intercourse with his pregnant wife after the discovery of her pregnancy.

Limitation of one year.—The filing of the petition within the stipulated period of one year (or two years under Parsi
Marriage and Divorce Act, 1936) is a strict requirement of law and for no cause any delay can be condoned. If the
petition

is not presented within that period, the petition is not maintainable and the respondent has to reconcile to his
laches1.

Burden of proof.—As in other cases, here also the burden of proof is on the petitioner that the respondent was
pregnant before marriage from some other person and he had no knowledge of it at the time of marriage2. Wife’s
admission of pre-marriage pregnancy when it is established that he had no access to her before marriage is
sufficient to discharge this burden.3[167]
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Wife delivered within 5 months and 6 days of marriage. DNA test showed husband to be not the biological father of
the child. Nullity granted.4[168]

Intercourse with the pregnant wife after the knowledge of her pregnancy.—If the petitioner has had
intercourse with his pregnant wife after he had knowledge of her pregnancy, then his petition would not succeed,
since this would amount to condonation. Once he accepts her as she is, he cannot repudiate her later on5.

Wilful Refusal to Consummate the Marriage

Introduction: Historical.—When the Parsi Marriage and Divorce Act was passed in 1936, wilful refusal to
consummate the marriage was made a ground Law of Marriage and Divorce of divorce1. When, a year later, the
English statute, the Matrimonial Causes Act, 19372 was passed, wilful refusal to consummate the marriage was
made a ground of voidable marriage (this continues to the position under the modern English Law3.) When in 1954,
the Special Marriage Act was passed, wilful refusal to consummate the marriage was made a ground of voidable
marriage4 (the obvious English law influence). Under no other Indian personal law it is a ground for any matrimonial
relief.

There is a conceptual objection to the wilful refusal to consummate the marriage being made a ground of voidable
marriage as nullity or annulment is granted “for some defect or incapacity existing at the date of the marriage”, and
wilful refusal is something that happens after the marriage. But this conceptual objection did not prevail in 1937 and
again it was overruled in 1971 when a comprehensive reforms in the nullity law were contemplated, as a
consequence of which the Nullity of Marriage Act, 1971 was passed. The rationale for making wilful refusal as a
ground of annulment of marriage has been thus given by the English Law Commission:

Failure to consummate, whether it be because the respondent is unable or because he is unwilling to have sexual
intercourse, deprives the marriage of what is normally regarded as one of its essential purposes. Parties would think it
strange that the nature of the relief should depend on the court’s decision whether non-consummation was due to the
respondent’s inability or whether it was due to his unwillingness. From the parties’ point of view the relevant fact be that the
marriage had never become a complete one. To tell them that, in the eyes of the law, failure to complete it due to one
cause results in their marriage being annulled, whereas such failure due to another cause results in their marriage being
dissolved, would seem to them to be a strange result5.

Another justification is given thus:

Wilful refusal to consummate is in most cases the alternative allegation to impotence as it is often uncertain whether the
respondent’s failure to consummate is due to one cause or the other; the petitioner may not know whether the respondent
refuses to consummate the marriage because he is unable to have sexual intercourse or because though able to have
sexual intercourse, he does not want to have it; in such cases the court must draw an inference from the evidence before it
and it seems unreal that the relief granted to the petitioner—nullity or divorce—should depend in any given case on the
court’s view as to which of the two reasons prevented the consummation of the marriage 5.

The most cogent conceptual objection of making it a ground of annulment marriage is this that wilful refusal involves
a finding that one party is at fault whereas in nullity the principle is that nobody is at fault. To put it differently: it is
argued that a marriage valid at the time of its solemnization should not be declared void ab initio or should not be
annulled as a result of subsequent event1[175].

When the Special Marriage Act, 1954 was enacted, then the provision of the Parsi Marriage and Divorce Act, 1936
ought to have been looked at and should not have drawn from the Matrimonial Causes Act, 1937, and made it a
ground of divorce. For one thing, then conceptual objection could not have been raised. For another thing, there is
no reason why the modern law should retain the concept of voidable marriage. In England, the distinction arises for
historical reasons when divorce was not recognized and it was nonetheless felt that there were some cases
wherein parties should not be compelled to live together, and a way out was found in the notion of voidable
marriage. Those compelling reasons no longer exist, yet we insist of retaining the concept of voidable marriages
though trying to mitigate some of its undesired consequences.

Indian law.—Under the Special Marriage Act, 1954 clause (i) of section 25 provides:
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The marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.

Sub-section (a) of section 32 of the Parsi Marriage and Divorce Act, 1939 provides:

The marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant
to consummate it.

The language of clause (i) of section 25 of the Special Marriage Act, 1954, is identical with the analogous clause of
the Matrimonial Causes Act, 1973 (where it has come from the Matrimonial Causes Act, 1937). The main difference
between the clauses of the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 is that under
the latter statute there has been laid down a period of limitation of one year, while there is no such limitation under
the former.

Wilful refusal to consummate.—Meaning of the expression “consummate” has already been considered under
the title “Impotency or failure of consummate on account of impotency”. The present ground, wilful refusal to
consummate the marriage, implies some delinquent act on the part of the respondent. The respondent deliberately,
purposely, designedly or calculatively declines to consummate the marriage. It is a question of fact in each case
involving the examination of the whole history of marriage. The English decision, Potter v. Potter2[176], provides a
good illustration. Originally the marriage could not be consummated, not on account of refusal of the husband to do
so, but because of some physical defect in the wife which prevented its consummation. Wife underwent a surgical
operation and was cured. The husband again tried to consummate the marriage but on account of wife’s emotional
state, consequent upon the surgery, she could not bring herself for the sex act. Thereafter the husband declined to
make any effort at the consummation of marriage. Whereupon the wife filed a petition for annulment of marriage on
the ground of husband’s refusal to consummate the marriage. Declining the petition of the wife, the court said that
husband’s disinclination to consummate the marriage arose from his “loss of ardour”, which was natural and not
deliberate. It is submitted that wife would have also failed if she had taken the ground that the husband failed to
consummate the marriage because of his incapacity to consummate the marriage, as on the date of marriage he
had capacity and it was immaterial that subsequently he became impotent qua the wife.

However, refusal to have sexual intercourse without the use of a contraceptive is not refusal to consummate the
marriage1[177]. Whether sexual intercourse by coitus interrupts amounts to consummation of marriage, English
courts have rendered conflicting judgments2[178]. So far, no occasion arose for the Indian courts to render a
decision. If parties have agreed not to consummate the marriage, then, would refusal to consummate the marriage
entitle the other party for annulment of marriage? Such agreements are contrary to public policy and hence void,
and thus petition would lie3[179]. But such an agreement among elderly people is not void. (This aspect of the
matter has already been considered.)

Just excuse for not consummating marriage.—Wherever a respondent is able to show a just cause for not
consummating the marriage, the petition would fail. Jodla v. Jodla4[180], provides a good illustration. In this case
parties who got their marriage solemnized at a civil registry had agreed that this would be followed by a religious
ceremony. Is the respondent’s refusal not to consummate the marriage before the religious ceremony is performed
is a just cause for nonconsummation of marriage. The English court went to the extent of saying that one party’s
refusal or disinclination to go through the religious ceremony is by itself amount to wilful refusal to consummate the
marriage. Similarly, in Kaur v. Singh5[181], two Sikhs underwent a civil ceremony of marriage at an English
Registry, but it was agreed upon between the parties that it would be followed by anand karaj (the Sikh ceremony)
of marriage and it was the stipulation in the agreement that the husband would arrange for the ceremony. The
husband refused to make arrangement for the performance of anand karaj rites. Allowing wife’s petition for
annulment of marriage on the ground of wilful refusal to consummate the marriage, the court observed that failure
of the duty to arrange for the performance of anand karaj ceremony tantamounts to refusal to consummate the
marriage.

There is no Indian reported case on the subject.

Niyoga , AIH, AID and Consummation of Marriage

Some of the ancient societies have been aware of the problem of some women failing to conceive either on account
of the husband’s inability to perform copulation or normal coitus or on account of physical or psychological
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Chapter IV NULLITY OF MARRIAGE

inhibitions of either party about sex. In such a case, if the couple’s desire to have offspring is to be fulfilled, the
sperm has to, somehow or other, reach inside the woman so that the ovum could be fertilized. It was in this context
that the Hindu institution of niyoga had its relevance. This was how the Ksetraja son was begotten, and, his rank
among secondary sons was very high1[182]. The niyoga was practised when a man was impotent or incurably
diseased or dead, and the family in accordance with its swadharma, authorized the husband’s brother or other
sapinda to beget a son on his wife2[183]. This was done strictly by appointment of the family and was hedged
around by many restrictions. For the practice of the niyoga, two conditions were essential, (a) the husband must be
impotent, diseased (in the sense of incapable of performing sexual intercourse) or dead; and (b) the wife or widow
must be authorized either by the husband during his lifetime or, after his death, by the members of his family. The
sole purpose of the institution of niyoga was the begetting of a son, and therefore, onerous conditions were
imposed so that the institution was not misused.

Modern science and technology has resurrected the institution of niyoga, though in a different form. The niyoga and
artificial insemination have this in common: in both the sperm is inserted into the uterus so that the woman may
become pregnant. In the former this was done by sexual intercourse with the woman by the appointed man. In the
latter it is done by the scientist (gynaecologist) who inserts the sperm in the uterus through some instruments. In
ancient times there was no technology available to mankind by which the sperm of the husband (in case the
husband was impotent but not sterile) could be inserted in the uterus of the wife. Modern science and technology
has developed a technique by which this can be done. What is significant is that under modern technology the
sperm can be inserted in the uterus without sexual intercourse. Artificial insemination is usually of two types: (i)
when the husband’s sperm is inserted in the wife’s uterus. This is known as artificial insemination homologous (AIH,
for short); or (ii) when the sperm of some other person (other than the husband) is inserted in the uterus of the wife.
This is known as Artificial Insemination Donor (AID, for short). The latter technique is adopted when the husband is
sterile3[184]. The development of the test-tube baby falls virtually in the former category; the difference being that in
AIH fertilization takes place inside the uterus, while in the latter it takes place in a ‘dish’ and then the fertilized ovum
is inserted in the uterus. This is obviously a highly developed technology.

In the western countries, resort to AIH and AID is made increasingly. Sometimes, a wife who commits adultery and
thereby becomes pregnant may pretend that she took recourse to AID1[185]. In India there has not yet been any
reported case of AIH or AID. The reported cases are that of test-tube babies. In western countries the resultant
legal problems have come before the courts, and it may be interesting to review the same so that we are in better
position to tackle them, as and when they arise here. Does artificial insemination (both AIH and AID) amount to
consummation of marriage? As has been stated earlier, it may be recalled that under Muslim law consummation of
marriage has several legal consequences2[186]. It has also been seen that under the Special Marriage Act, 1954
wilful non-consummation of marriage is a ground for annulment of marriage, and under Parsi Law it is a ground for
divorce. In India there have arisen no cases on this subject. In western countries this question has come for
consideration in some cases. Two instances may be cited. In Slater v. Slater3[187], recourse to AID was taken by
the wife with the consent of the husband, but it was not successful. Whereupon, the parties adopted a child.
Subsequently not satisfied with this arrangement (since her natural urge for sex act remained unsatisfied), she sued
for annulment of marriage on the ground of inability of the husband to consummate the marriage. On the husband’s
side it was argued that the wife’s willing recourse to AID and, on the failure of which, to adoption, amounted to
approbation of marriage, and consequently, she could not seek annulment of marriage. Rejecting the argument of
the husband, the court passed a decree in favour of the wife. In R.E.L. v. E.L.4[188], a psychologically impotent
husband’s wife took recourse to AIH. This process took one year. Towards the end of the year, the wife left the
husband. At this time she was not aware that she had become pregnant. Subsequently, a child was born to her.
After some time, she filed a petition for annulment of the marriage on the ground of husband’s inability to
consummate the marriage. The question before the court was “Whether the wife’s willing recourse to AIH and
subsequent birth of the child amounted to sufficient approbation of marriage so as to prevent her from seeking
annulment of marriage. The court rejected this argument as well as the other argument of public policy, viz., the
decree of annulment of marriage would bastardize the child. (By this time the Matrimonial Causes Act, 1950 was
not passed, section 16 of which confers a status of legitimacy on the children of annulled voidable marriage was not
enacted.) The court observed:

If the child should be made illegitimate it is most regrettable, but the stigmas of birth are of less effect that they were, and
sons are not now judged by the errors of their parents5[189].

The interaction of technology and law has resulted in this curious situation that a child born within lawful wedlock
from the sperm of the husband became illegitimate on the decree of annulment of marriage. But let us not forget the
historical perspective in which the concept of annulment of marriage came into existence. The English Church was
then committed to the dogma that marriage was either valid for ever or never, and therefore, once a marriage was
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annulled it became void from its beginning, from its inception. The law has met this challenge and mended its fence
by laying down that children of annulled voidable marriages are legitimate. The English statute, the Matrimonial
Causes Act, 1973, now makes the decree of annulment of marriage as prospective1[190].

However, as to the correctness of both these judgments no one need doubt. The basic purpose of marriage is not
merely procreation, but also sexual intercourse, and AIH and AID cannot be a substitute, in any sense, for sexual
intercourse. A spouse who fails to fulfil this basic want is not entitled to hold on to his spouse if she does not want to
live with him, even though he agrees to AID, and it results in the birth of a child. Thus, it is submitted that the law
has met the challenge of technology well. However, a different view has also been taken. Admitting that “by the very
nature of the process of the device, the absence of organic intercourse, it would be hard to believe that such
marriage is physically consummated”, it has been stated, “if such a marriage is liable to annulment on the ground of
non-consummation, then the very purpose and object of the insemination would be defeated, viz., the purpose of
relieving the parties of the frustration of not bearing the child and removing a principal cause of disharmony in the
family”2[191]. It is submitted that what has been ignored is the frustration resulting from not having sexual
intercourse, the sex in man cannot be ignored, it can result in neurosis and even worse physiological and
psychological consequences. Man has not yet mastered these animal passions and wants. And if one succeeds in
mastering them, one would not care to have one’s own child.

As has been stated earlier, consummation of marriage is very important under Muslim law as it leads to several
consequences. In some cases ‘valid retirement’ leads to the presumption of consummation. Thus, for the purpose
of confirmation of dower, establishment of paternity, observance of idda, for wife’s right of maintenance and
lodgement, for unlawfulness of marriage by the husband with the wife’s sister or for taking the fifth wife, valid
retirement is treated as equivalent to consummation. But a valid retirement does not raise the presumption of
consummation of marriage for the purpose of making a person nushan or a daughter unlawful of making a divorced
wife (in talak-i-hasan or talak-i-bidda) lawful to the husband for the purpose of remarriage or for the purpose of
revoking repudiation or for inheritance3[192]. The question is: Whether AIH does not amount to valid retirement
leading to the presumption of consummation of marriage for the purposes for which valid retirement leads to that
presumption. It is submitted that not merely AIH but also AID (taken with the consent of the husband) should be
treated as amounting to valid retirement, since in valid retirement evidence of sexual intercourse is not required. It is
the “exclusiveness” of the spouses which leads to the presumption, and if AIH or AID (with the permission of the
husband) is resorted to, it should be treated equivalent to valid retirement. But for the purposes for which Muslim
law insist on actual consummation, AIH or AID (even with the consent of the husband) should not amount to
consummation of marriage. One may also look at the effect which AIH or AID may have on the Muslim law rule of
repudiation of marriage. The Dissolution of Muslim Marriages Act, 1939 lays down that a Muslim wife may seek
divorce on the ground that (a) when she was married below 15 years; (b) she repudiated the marriage before she
attained the age of marriage; and (c) the marriage has not been consummated1. Whether a husband can plead in
answer to the wife’s suit for divorce on this ground that since the wife took recourse to AIH or AID the marriage
stood consummated and, therefore, she is not entitled to the decree of divorce. It is submitted that for the purpose
of this clause, in ordinary parlance, consummation of marriage means sexual intercourse, and therefore, neither
AID nor AIH can amount to consummation of marriage.

Consent: Consent obtained by force or fraud

Introductory: Conceptual Parameter.—The ecclesiastical law took the view that marriage comes into existence
by the consent of the parties, and, logically, if there was no consent there was no marriage. The English law
continued to take this view till the year 1971. The conceptual problem that arises is on account of the fact that in
some marriages there may be an apparent consent, but there may not be any real consent. Looked at broadly, one
can say that if the parties have not given their consent to the marriage, they could not have undergone the
necessary formalities of the solemnization of marriage. If they have undergone the ceremonies, the consent should
be implied. But looked at more deeply, the problem arises because the apparent consent may not be the real
consent; it might not be accompanied by the necessary mental intention. Thus, a person may be insane and not
aware of what he is doing: he may not know and may be totally unaware that the formalities he had undergone
were formalities for the solemnization of marriage. Or, a person who is intending to marry P may be led into the
ceremony of marriage with Q whom he is led to believe is P, and thus though he intended to marry P and therefore
underwent the ceremonies of marriage, yet he did not want to marry Q. Or, he may undergo the formalities of
marriage because bride’s father is standing behind him with a drawn sword. This is, in fact, the conceptual problem:
the juristic dilemma. If apparent consent is not real then by mere performance of rites and ceremonies of the
marriage no marriage should come into existence, howsoever solemn and spiritual, the rites and ceremonies, might
 Page 23 of 44
Chapter IV NULLITY OF MARRIAGE

be. But then this leads to uncertainty which law always seeks to avoid. Whether an apparently valid marriage
should be permitted to be avoided by proving the existence of a state of mind or belief which was not evident at the
time of the performance of the formalities of marriage. The law has sought to resolve this problem by, on the one
hand, refusing to allow private reservations or motives to vitiate an ostensibly valid marriage, and, on the other, the
law accepts that there may be cases where there has been no real consent at all1.

Another conceptual problem that arises is on account of the invocation of the notion of law of contract: meeting of
minds, consensus ad idem. If there is no real consent, if there is no meeting of minds, the contract is void. The
ecclesiastical law and English law and laws of other systems which considered the marriage as a contract also
subscribed to this view. But fortunately, this doctrine of law of contract was never adopted in its puritan form in the
matrimonial law. Particularly in the modern law, the trend is to reduce the void marriages to a bare minimum and
thus it came to be propagated that lack of consent or vitiated consent should render the marriage voidable and not
void. The lack of consent or no consent was equated with vitiated consent. In Law of Contract a consent is vitiated if
it is obtained by fraud, undue influence, coercion or misrepresentation, and in all these cases the contract is
voidable2. But mistake rendered the contract void. The Nullity of Marriage Act, 1971, changed the English law and
laid down that marriages for lack of consent whether arising from duress, mistake or insanity are voidable. The
rationale for this view has been thus given by the English Law Commission:

Whereas a bigamous marriage or one within the prohibited degrees is, both in theory and in practice, void without the
necessity of a decree of nullity and can never be ratified, a marriage alleged to be void on the ground of lack of consent—
whether due to duress, mistake or insanity— cannot in practice be treated as a void marriage without the court first
investigating the circumstances and making a decree, so that the transfer of such a marriage from the void into the voidable
category of marriages would not create hardship to the parties. The case for such transfer is strengthened by the doctrine
of ratification which enables a party to decide for himself whether he wishes the marriage to take effect: why, if the parties
wish their marriage to be valid. Should they run the risk of having the marriage impeached by third parties?3[195]

Under English law there are now two grounds of voidable marriage: one relates to lack of consent and vitiated
consent and the other to mental incapacity. Clauses (c) and (d) of section 12 of the Matrimonial Causes Act, 1973,
runs as under:
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake,
unsoundness of mind or otherwise.
(d) That at the time of marriage either party, though capable of giving a valid consent, was suffering (whether
continuously or intermittently) from mental disorder within the meaning of the Mental Health Act, 1959, of
such kind or to such an extent as to be unfitted for marriage.

Indian Law.—The Indian personal laws deal with lack of consent or vitiated consent separately from mental
capacity, or insanity. Insanity has already been discussed in Chapter II. Here vitiated consent is being discussed.

The Divorce Act, 1869, Hindu Marriage Act, 1955 andspecial Marriage Act, 1954 contain specific clauses on the
matter. There is no specific provision in this regard under the Parsi Marriage and Divorce Act, 1936. Clause (iii) of
section 25 of the Special Marriage Act, 1954 runs:

The consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872,
(9 of 1872).

The analogous clause in the Hindu Marriage Act, 1955 has been worded differently. Clause (c) of section 12(1)
runs:

That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under
section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, (2 of
1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any
material fact or circumstance concerning the respondent.

Analogous provision in the Divorce Act, 1869, is contained in section 19. It provides:

Nothing in this section shall affect the1 [jurisdiction of the District Court] to make decrees of nullity of marriage on the
ground that the consent of either party was obtained by force or fraud.
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Chapter IV NULLITY OF MARRIAGE

There is no such provision under Parsi Marriage and Divorce Act, 1936.

The marriage where consent of either party is vitiated is voidable under the

Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. It is void under the Indian Divorce Act, 1869.

Muslim Law.—Under Muslim Law, consent is an essential element of marriage. A marriage solemnized without the
consent of either party is invalid2. Since the Shafiis take the view that marriage of even an adult girl without the
consent of the guardian cannot take place, a marriage without the consent of the guardian is invalid3. In India, the
courts have taken the view that a guardian of major Safii girl cannot perform her marriage without her consent, and
if she is married by her father or guardian without her consent the marriage is void4. Among other schools of Muslim
law an adult sane person cannot be married without her or his consent, and if there is no such consent, marriage
will be invalid1. Here performance of ceremony is not enough, consent is essential, otherwise the marriage will be
void2.

Under Muslim law consent to marriage may be given either by express words or it may be implied by conduct.

Express consent.—In one case Muslim law insists that consent must be by express words. This is the case of
saibba. It is mandatory that her consent must be given in express words. A saibba is an already married women or
who has had sexual intercourse during maidenhood. A woman who enters into a second marriage after the
dissolution of her first marriage must express her consent in express words, such as “I consent to the marriage”.
The express consent of saibba is mandatory under all schools of Muslims. This view is based on the following
saying of the Prophet: “The saibbas are to be consulted”. Further, she cannot pretend to be shy like a virgin and is
not allowed to convey her consent by silence3.

Whether a woman, who had lost her virginity, by fornication or adultery, can convey her consent by silence or
whether it can be implied by her conduct. Muslim authorities have expressed divergent views. Abu Hanifa opined
that she should be treated like a virgin while Abu Yusuf and Mohammad took the view that she is like saibba. There
seems to be unanimity in the view that if a girl loses her virginity by menstrual discharge, hurt or jumping, she would
be treated as virgin4. The Shafii law takes the view that if a woman has had intercourse whether with her free
consent or without it, even by force (such as when she is raped), she becomes a saibba. But if she looses her
virginity by reasons other than sexual intercourse, she will remain a virgin.

Implied consent.—In the case of virgin girl, it is not necessary that she should give her consent by express words.
In her case consent may be implied by her conduct.

Silence.—In a case where the consent to marriage from a virgin is obtained by her father, brother, uncle or an
agent appointed by her, it is not necessary that she should give her consent by express words. Thus, if any of these
persons ask for her consent to marriage and she remains silent, this is enough to convey her consent. This is based
on the following saying of the Prophet, “A virgin must be silent in everything as regards herself and if she is silent it
signifies assent”. Further, a virgin is by nature shy and cannot and should not express her consent by spoken
words. Her silence and shy smile would amount to her consent. This will be so even if she is minor and when her
guardian asks for her consent and she smiles or keeps silence, then it would mean that she consents5.

However, in the case of an adult virgin if her consent is sought by any person other than her father, brother, or
uncle, her consent must be given by express words as in the case of saibba1 unless such a person is merely a
messenger of her father or guardian. The Muslim law givers lay down that if she is being given in marriage by a
paternal cousin, she must give her consent in express words, in such a case her silence would amount to
repudiation. Similarly, if the guardian of an adult woman married her to himself, if she remains silence after the
contract, it would amount to repudiation.

Even in the case of the father, if he does not mention the name of bridegroom and the amount of dower, mere
silence would not amount to consent. She has the right to repudiate the marriage2. However, if the father mentions
the name of bridegroom and fails to mention the dower, her silence would amount to consent and marriage will be
valid. She will be entitled to proper dower.

We have seen that if she smiles, it amounts to consent. Muslim jurists hold the view that her laughter when asked to
give her consent is a better mode of communication of her consent than mere smile. So does weeping with effusion
of tears but unaccompanied by any audible sounds. But if her laughter is accompanied by cries and sounds it does
not amount to consent3.
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Chapter IV NULLITY OF MARRIAGE

Any conduct on the part of the bride or bridegroom from which consent may be inferred is enough to communicate
the consent. Her consent will be inferred if she asks for dower or facilitates for consummation of marriage or
accepts felicitations and congratulations. If the bridegroom calls the bride in the presence of witnesses, “my wife”
and she answers “my husband” the consent is implied 2. However, acceptance of presents after the marriage or
partaking of her husband’s food serving him as before do not amount to her consent4.

In every case where consent is inferred from conduct, the conduct should be such from which no other inference is
possible. When words are used to communicate the consent they must be clear and unambiguous and should not
be vague. For instance, where an agent for marriage goes to the woman and desires to know from her who is her
walid (guardian in marriage) and she replies that it is her father. This does not amount to her consent for marriage.
When a person authorizes her guardian or agent to enter into a marriage on her behalf, the authorization must be in
clear and unambiguous language, such as, “I appoint you, my father (or any other person) waris to enter into
marriage contract on my behalf”.

Intention and consent under compulsion : It is a peculiar feature of the Sunni law that in a contract of marriage
earnestness and joke are treated at par. The Muslim jurists hold the view that there is no need for intention to
marry, and therefore it is not a condition precedent to marriage that the parties to the marriage should know the
meaning of the words in which the proposal and acceptance have been made1. On the other hand, the Shia law
lays down that the declaration and acceptance must be expressed in such a mode as to demonstrate intention
without any ambiguity2.

The Sunni doctrine taking the view that no intention to marry is necessary, take it to logical conclusion by holding
that a marriage contract entered into under compulsion without any intention results in a valid marriage3. This is
based on a hadis which runs: “The apostle of God said, three things, whether done in joke or earnest, shall be
considered as serious and effectual, one marriage, two divorce and three take back”. The Fatwa-i-Alamgiri and the
Radd-ul-Muktar also hold such marriages are valid. But Amir Ali is critical of this view. He says this is “rather
casuistal” view. According to him the passages in Fatwa-i-Alamgiri4 in their bare form are no less astounding than
contrary to the general equitable principles of Muslim law5. Amir Ali cites the authority of Jama-ur-Ramuz for the
view that such marriages are invalid. It is submitted that Amir Ali view is correct. In Abdul Latif v. Niaz Ahmad6,
applying the principle of equity, justice and good conscience, the Allahabad High Court held that a marriage brought
about by fraud, coercion or force is invalid unless ratified.

Under the Shia law a marriage entered into under compulsion is not valid.

It is submitted that a marriage without the consent of the parties to the marriage or with vitiated consent should be
considered as voidable, since Muslim law givers seem to hold the view that such marriages are invalid unless
ratified. This would mean that the marriage will be valid unless avoided. It is submitted that this should be the
construction placed on these provisions of Muslim law in modern India. It is also submitted that the meaning of
fraud, force or coercion should be the same as it is given under other personal laws. Thus, there was possibility of
developing a law of annulment of marriage under Muslim law.

Hindu Marriage act, special Marriage act and*divorce act

Consent obtained by force.—Under the Hindu Marriage Act, 1955 and the Divorce Act, 1869* the expression
used is “force”, while under thespecial Marriage Act, 1954, the expression used is “coercion” and the Act says that
coercion has the same meaning as it has under the Indian Contract Act, 1872.

“Where a formal consent is brought about by force, menace or duress—a yielding of the lips not of the mind—it is of
no legal effect”7. In the early English law there was a tendency to interpret these expressions strictly, as the then
English policy required that the marriage should not be lightly set aside, but later on somewhat liberal meaning was
given to these expressions. In India, there is not much case law on this matter. However, English precedents are a
sufficient guide.

Force here does not mean only the use of physical violence. The basic element in force is fear—a fear which
overrides the party’s true interest. A classical illustration is provided from the American shotgun case, Lee v. Lee,1
the Court rightly observed that “if there has not been a wedding, there would have been a funeral.” But there would
be no force or fear, if a person undergoes a wedding voluntarily, deliberately in order to escape from a disagreeable
 Page 26 of 44
Chapter IV NULLITY OF MARRIAGE

situation, such as, penury or social degradation or out of sense of obligation to family or religious belief or tradition,
and therefore, such a marriage cannot be annulled. For instance, in Singh v. Singh,2 a petition was presented by
wife for annulment of marriage with her Sikh husband (both the parties were Sikhs) on averment that the marriage
was arranged by their parents and she underwent the ceremony of marriage out of “proper respect” for her parents
and tradition of her people, while in fact she had not even seen her husband before marriage. The petition failed as
the court came to the conclusion that there was no evidence of any fear or undue influence.

The husband claimed that he was forced to marry at the point of pistol. No criminal complaint was filed. No other
evidence. It was held that it was a mere ploy to build a case for divorce.3[219]

In H. v. H.4, the English court observed that wherever owing to some natural weakness of mind or on account of
some fear, whether entertained reasonably or unreasonably, but nonetheless entertained really, it would amount to
force. It would also amount to force when a party is in such a mental state that he finds it almost impossible to resist
the pressures5. It seems that is what coercion would mean under the Special Marriage Act, 1954 and that would
also come under “force” under the Hindu Marriage Act, 1955 and the*Divorce Act, 1869.

Somewhat critical question is whether the test is objective or subjective. It seems, in the ultimate analysis, the test
has to be subjective. Here the test of reasonable person would not suffice. It is true that fear should be sufficiently
grave and as English courts have said, there must be a threat to life, limb or liberty6. Yet, the test is not whether a
person of ordinary courage and resolution would yield to the fear, but whether the petitioner did yield. It would
appear that objective test is apparently inconsistent with the test of threat of immediate danger to life, limb or liberty.
Thus, the will of a weak minded person may be overcome by less serious threats. It is submitted that both aspects
can be reconciled. The court would grant an annulment decree only when fear is real and not apparent or
superficial considering all the circumstances of the case and the mental condition of the petitioner.

Fear should emanate from external circumstance, from external agencies, though it may not necessarily from the
other party. It can be from a third party. For instance, whether the dagger or gun is held by the respondent or his
father, friend or servant, if it creates a fear and the petitioner is forced to marry, the marriage is voidable. It is
immaterial whether the respondent is minor or adult. In Buckland v. Buckland1, the threat to life and liberty arose
from the policies of a totalitarian regime, and, as a result of the marriage, the parties were able to leave the country
and thus avoid imprisonment2. However, Cretney’s comment on these cases are: Yet these cases seem very
doubtful since, although the parties were no doubt frightened, their decision to marry was a conscious and rational
one, indicated by their desire to enjoy the legal consequence of matrimony3.

A view has been propounded that fear must not be justly imposed. For instance, if threat is of prosecution for
defilement, a petition would fail if the petitioner is guilty of defilement, as man is free to elect between scandal and
possible punishment on the one hand, and marriage to the girl he had wronged on the other. A decree of nullity may
be obtained if accusation is false4. But Cretney says that the view is illogical and contrary to principle. It is illogical
as justice of threat has nothing to do with the subjective question of consent. It is also contrary to principle of canon
law which held a marriage void even if the petitioner was subjected to a just fear through his own fault5. The English
Law Commission very pertinently observed:

If one reviews the actual decisions reached by the courts rather than some of the reasons which have been advanced in
reaching those decisions, the results seem to be about right. What in effect they have done is to distinguish legitimate
threats from illegitimate ones. They have rightly held that the threat is illegitimate if it is to make a false charge against the
person threatened. They have implied that if may be legitimate if the charge is just. But no court has gone so far as to hold
that a threat is necessarily legitimate on that ground. We doubt, for example, whether any court would hold that it is a
legitimate threat not capable of vitiating consent for an employer to tell the office-boy who has robbed the till that unless he
marries the employer’s ex-mistress he will be prosecuted.

Obviously, mere pressure, strong advice, persuasion or any importunity would not amount to force or fear. In most
of the arranged marriages some persuasion, advice or even pressure is often exercised, but these do not amount to
force. It would amount to force only if the consent was induced or compelled as a result of actual use of force or
threat to use force. In a case under the Special Marriage Act, 1954 it has been held that coercion and undue
influence are ground for annulment of marriage6. In a case under the *Divorce Act, 1869,Appibai v.

Khimji1, it was held that where the petitioner was reduced to a state in which he was incapable of offering resistance
to coercion or threats, it vitiated the consent. The consent is vitiated when a girl was abducted by force and
marriage was performed against her wish. When a marriage is performed under threat to use force against the
petitioner, the consent is not valid2. Where a marriage was solemnized under the Special Marriage Act, 1954
 Page 27 of 44
Chapter IV NULLITY OF MARRIAGE

sought to be annulled on the ground of coercion it was held that coercion should be established. The vague
allegations, contradictions in pleadings of evidence and assertion that tabalchi who was teaching the wife exerted
with undue influence, particularly when the couple had known each other for several years and marriage was
performed voluntarily3.

Mere fact that wife did not complain of force or threat before the Registrar. Marriage cannot counter her allegations
that her consent was obtained by force or threat. This has to be proved by leading evidence.4[234]

Marriage solemnized under influence of drugs administered by husband and his sister is voidable as there was lack
of free consent.5

Consent obtained by fraud.—English law is wedded to the notion that maxim, caveat emptor, applies to marriage
as much as it does to other contracts. On this notion, generally a marriage cannot be avoided either by simple fraud
or mistake. On this view, the English law has taken a narrow meaning of mistake and fraud. Under the Indian law
mistake is not a separate head. We have only one head “fraud” which has been given a wide interpretation under
Hindu Law and the Marriage Laws (Amendment) Act, 1976, has further widened the scope by adding the following
words to the clause “or by fraud as to the nature of the ceremony or as to any material fact or circumstance
concerning the respondent.” Thus under the new clause fraud relates to:
(a) nature of ceremony, and
(b) any material fact or circumstance concerning the respondent.

This obviously widens the scope, but one should not overlook the word “material” which is the governing word in the
clause.

This amendment has not been extended to the Special Marriage Act, 1954 and the Divorce Act, 1869.

Earlier, courts in India following English precedents mechanically, gave a narrow meaning to fraud and held fraud
was relevant only when it related to the identity of the person (as distinct from his or her attributes) or as to the
ceremony or marriage. Under the modern Indian law its scope has been widened.

Fraud.—The main element in fraud is deceit. Fraud in matrimonial law does not have the same meaning as it has
under section 17 of the Indian Contract Act, 1872. Fraud means such circumstances or conditions as to show want
of real consent. Where consent procured has semblance of consent, while in fact there is no real consent, it
becomes an act meant to deceive. Section 17 of the Indian Contract Act, 1872, defines fraud thus:

“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his
agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:—

(1) the suggestion, as to a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.

Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless
the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak,
or unless his silence is, in itself equivalent to speech.

Mere general statements as to fraud in the pleadings are not enough; particulars of the fraud should be given1. The
most important aspect of fraud in matrimonial law is that it is not every misrepresentation or concealment which
amounts to fraud. Thus, in every arranged marriage all sorts of qualities and qualifications are attributed to the girl
and the boy. Matrimonial columns of the newspapers fully illustrate this aspect. It is often advertised that a suitable
match is needed for a beautiful, well-accomplished girl who is well versed in household work, knows sewing,
embroidery, knitting, is meek, submissive, obedient, very modest and of very good character; she is tall, slim and of
fair complexion, can read and write (in case she has no matriculation or higher certificate). Sometimes it is also said
that good dowry will be given or that she is a princess. In the same superlative terms the prospective bridegroom is
 Page 28 of 44
Chapter IV NULLITY OF MARRIAGE

advertised. It is said that the boy is well accomplished, highly educated, well-settled in life, rich, resourceful,
handsome, of fair complexion, and does not smoke or drink; he is a strict vegetarian (in communities where
vegetarianism is considered a quality). Sometimes it is said that he is a big businessman, big officer or a prince or a
Jagirdar. Suppose, each one of these representations turn out to be totally wrong or exaggerated, can a marriage
be avoided? Answer in both the cases is in the negative. In Purabi Banerjee v. Basudeb Mukherjee2, the wife
alleged that her husband’s pre-marriage boasting as to his high prospects in life induced her to marry him. It was
held that this did not amount to fraud. Were it not so, most of our marriages would be voidable. But
misrepresentation as any material fact, such as marital status in Newspaper advertisements amount to fraud3.

Some illustrative cases are being discussed.

Identity of person.—This is usually discussed under the head, “mistake as to the identity of a person” under
English law. Indian law discusses it under “fraud.” A marriage may be annulled on the mistaken identity of a party to
marriage. If P marries G under the belief that she is W, the marriage may be annulled. It seems that in Indian law it
would be necessary that P was led into that belief by some misrepresentation meant to deceive P. If P himself
entertained that belief in which neither G nor her relatives made any contribution, he cannot get it annulled. But, as
we have seen earlier, if representation is made to her that G is a very talented person or an electronic engineer but
it turns out to be that he is nothing of the kind, marriage cannot be avoided. Thus in C. v. C.1, a New Zealand case,
P represented to “G that he was a well-known feather-weight pugilist. In this case since mistake on the part of G
was not as to his attributes, she meant to marry the person physically present before her and thus his attributes
were not essential conditions of the marriage. On the other hand, in Allardyee v. Mitchell2, an Australian case, G
believed that P was a member of a particular family with which she was acquainted. The Australian court held that
there was a sufficient mistake of identity, as against a mere mistake as to name, and the marriage was thus
annulled. It is evident that distinction is rather fine.

Concealment of identity.—In conformity with the new meaning given to fraud, in Som Dutt v. Raj Kumari3, the girl
shown to the husband was a girl of fair complexion but the one he married was a girl with squint whose seven teeth
were missing. It was held that marriage could be annulled. This case could also come under mistaken identity also.
In Rameshwar v. Neelam4, allegation was that he was to be married to wife’s sister. This fact came to the notice of
petitioner the very next day. He presented the petition after more than one year of the discovery. Hit by limitation.

Ceremony of marriage.—The English courts held that it is sufficient to annul a marriage if the ceremonies of
marriage that a party underwent were thought by him to be an appearance in a police court5, ceremony of betrothal6
or a conversion ceremony7. In Miss Shireen Mall v. John James Taylor8, a case under the Divorce Act, 1869, where
the husband-respondent underwent the ceremony of marriage without any intention to regard it as a real marriage,
the marriage was annulled on the petition of the wife. Under Indian law, the other party should be deceived into the
ceremony. Wherever a person undergoes a ceremony in a state of such drunkenness as not to understand the
nature of the ceremony of marriage9 the marriage may be annulled. The same is the position of a marriage in jest10.

However, a mistake as to the effects of the relationship resulting on marriage is not sufficient for avoiding the
marriage. In Kassim v. Kassim1, an English case, a Muslim underwent a ceremony of marriage in civil form,
mistaking it to ceremony of a polygamous marriage entitling him to take another wife. It was held that it was
insufficient for avoiding the marriage. Similarly, in Way v. Way2, H entered into a marriage with W, a Soviet woman,
in the Soviet Union, under the mistaken belief that after marriage he would be allowed to leave the Soviet Union
alongwith his wife. This was again held to be insufficient for avoiding the marriage. The same reasoning would
apply for not allowing annulment of marriage where a sham marriage was entered into with a view of acquiring
nationality or immigration status. Wherever an intention to marry is clearly discernible, it is not sufficient to get a
decree of annulment of marriage on the ground that it was entered into for a limited purpose3. It can be impeached
if fraud or duress was exercised in obtaining the consent4. In Shaji v. Gopi Nath,5[253]the husband got the
“marriage” registered without performing any ceremony of marriage by representing to the woman that he would
take her with him to the states. The Registration was held void.

Concealment of disease.—In cases coming before the amendment of 1976, the courts have not stated the law in
clear words. In the case of some diseases, in some cases they took the view that their concealment was no cause
for annulment, while in others they held their concealment is a sufficient ground for avoiding the marriage. It would
appear that where the disease is of a serious nature, such as, cancer or tuberculosis, the marriage can be avoided,
but not in the cases of minor maladies. It seems that concealment of pre-marriage mental derangement of
temporary derailment is not such a concealment as to entitle the other party to annulment of marriage. In Anath
Nath v. Lajjabati Devi,6 it was held that the concealment that the bride was suffering from consumption was not a
ground for avoiding a marriage. Similarly, concealment that the respondent was suffering from syphilis is not fraud7.
 Page 29 of 44
Chapter IV NULLITY OF MARRIAGE

Psoriasis is not contagious, hence, suppression of the same does not amount to fraud.8 Where husband knowingly
married the wife that she has epilepsy, it would not be fraud.9 But it seems concealment or misrepresentation of
diseases of serious nature, such as, incurable venereal diseases, may be enough for annulment of marriage.
Concealment of pre-marriage incurable schizophrenia10, or epilepsy11 amounts to fraud.

Balbir Kaur v. Maghar Singh1, a post-amendment case, indicates the new approach. In this case, wife was having
deformity in her limbs which was concealed at the time of marriage. It was held that the deformity was something
material concerning the respondent and its concealment amounted to fraud. It is submitted that what type of
deformity of limbs would constitute material fact or circumstance in regard to the respondent will depend upon the
facts and circumstances of each case. Obviously, the deformity must be such which interferes with proper
cohabitation.

However, in Vinod Jaswal v. Anuradha Jaswal2, the husband alleged that his consent was obtained by fraud as he
was kept in dark to the fact that the wife was suffering from lack of movement of hip joint due to which she could
neither sit nor stand nor walk properly. It was held that nature of disability was such that there could not have been
active concealment and therefore, fraud not proved.

Concealment of caste or religion.—In Aykut v. Aykut3, a case under the Divorce Act, 1869, where a Christian
woman entered into marriage with the respondent who was Muslim on the latter’s assurance at the time of
celebration of marriage, that he was a Christian, the court granted annulment of marriage4. Similarly, in Bimla v.
Shanker Lal5, a misrepresentation as to caste was held sufficient to entitle the petitioner to get marriage annulled. It
is submitted that when the policy and the letter of law permit inter-caste marriages, concealment of one’s caste
should not be considered as a material fact or circumstance about the respondent. Concealment that the
respondent, a widower, was once married to another woman does not amount to fraud6.

Concealment of unchastity.—Under English law concealment of pre-marriage unchastity have been held not to
amount to be sufficient basis of annulment. In India, as a general rule pre-nuptial unchastity of the wife though
unknown to the husband at the time of marriage is not a ground for nullity7. In Harbhajan Singh v. Brij Balab Kaur8,
assurance of respondent’s father at the time of solemnization of marriage that the girl was virgin, though
subsequently it was found that she had given birth to a child before marriage, was held not to amount to fraud. Even
before 1955 it was held that virginity of the bride was not essential for the validity of marriage1. In Surjeet v.
Rajkumari2, Kapoor, J., observed that an express misrepresentation by a woman as to her chastity does not, itself,
amounts to fraud. However, the learned judge added, if a husband attaches too much importance to the past
unchastity of his would-be-wife, he should make specific enquiries of his own or from the girl’s relations at the time
of the negotiations of marriage. It is only then he should be able to show that though the relations of the girl were
aware of her past unchastity, they misled him. A general observation by the relations that the girl is good does not
amount to obtaining consent of the husband by fraud. It is submitted that this is a good exposition of law. But, under
the amended clause, whether a representation of chastity of the girl amount to a material fact about the respondent.
Looked at purely from the orthodox Hindu outlook, an affirmative answer could probably be given. But in the
modern society where the outlook as to virginity has totally changed, this, it is submitted, should not be treated as a
material fact about the respondent.

Concealment of illegitimacy.—In Bimla v. Shankar Lal3, the court observed that when a person speaks of another
as his son, he means to say that he is his legitimate son. If a person calls his illegitimate son as a son so as to
induce the father of the bride not to make further enquiries as to the fact of illegitimacy of the boy, which, if
discovered, might have affected his judgment, his consent cannot be said to be anything but fraudulent. It is
submitted that the modern outlook as to illegitimacy being so radically different from the old, this case has been
wrongly decided. Further, the element of deceit was totally lacking. Rukmani Ammal v. T.R.S. Chari4, a pre-Act
case, stands in a different footing. In this case the court refused to grant restitution of conjugal rights to a husband
as he had at the time of marriage, made a fraudulent representation that he was a bachelor, while in fact he was a
married person. It is submitted that this case was rightly decided, and under the modern law the wife would be
entitled to a decree of nullity of marriage on this ground.

Concealment of age.—In Som Dutt v. Raj Kumari5, at the time of marriage there was a misrepresentation as to the
age of the bride. It was stated that she was one year junior in age to her husband. It was found out that she was
senior in age to her husband by seven years. The court held that it was concealment of a material fact relating to
the respondent. However nullity of marriage sought on the ground that husband was underage was held not
permissible as this ground does not fall within the purview of sections 11, 12, 13 and 5(iii) of the Hindu Marriage
Act.6[273]
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Chapter IV NULLITY OF MARRIAGE

Concealment of financial status and nature of employment.—In Anurag Anand v. Sunita Anand,1 monthly
income and property status of the husband was held to be material fact and circumstance and in the event of their
being proved to be false, it would amount to fraud. In Anil Kumar v. Mumta,2 husband was purported to be doctor
whereas he had not studied beyond intermediate. It was held to be fraud.

Concealment of deformity.—Balbir Kaur v. Maghar Singh,3 a post amendment case, further indicates the new
approach. In this case wife had deformity in her limbs which was concealed at the time of marriage. It was held that
the deformity was something material concerning the respondent and its concealment amounted to fraud. In our
submission what deformity of limbs would constitute material fact or circumstance in regard to the respondent will
depend upon facts and circumstances of each case.

Obviously, the deformity must be such which interferes with proper cohabitation.

Concealment of pre-marriage status.—If one of the parties conceals his or her pre-martial status, it amounts to
fraud. In Rajinder Singh v. Pomila,4 the husband did not reveal that he was already married. This was held to
amount to fraud in respect of a material fact about the respondent. If a woman represented that she was a graduate
and legally divorced but both were found to be untrue, it was held to amount to fraud.5 If a woman conceals that
prior to the present marriage she was married and had a child by caesarian section, it would amount to fraud.6[279]

Misrepresentation as to income.—A misrepresentation as to income is a material fact7.

Wife devoid of female organs.—Concealment of fact that wife was devoid of female organs would amount to
fraud.8 But in Ruby Roy v. Sudershan Roy,9 since father of the bridegroom has negotiated the marriage and was
told of the fact, it was held that there was no concealment. In Benjamin Doming Cardoza v. Gladys Benjamin
Cardoza,10 a case under *Divorce Act, concealment of the fact that the wife was unable to bear children was held to
be obtaining consent by fraud.

Fraud of third person.—Ordinarily, it is the fraud of the respondent which is a material circumstance for annulment
of marriage, but in some circumstances fraud of a third person may also vitiate the consent. Thus in Babui Panmato
Kuer v. Ram Agya Singh1, the petitioner’s case was that before her marriage was to be solemnized she overheard
her father telling her mother that he had fixed-up a husband for her who was between 20 and 30 years of age, and
she was satisfied with that. After marriage when she went to her husband’s house she found him over sixty years of
age. The question was whether this amounted to fraud, since there was no misrepresentation made to petitioner
directly inasmuch as the particulars of bridegroom were merely overheard by her. It was held that the father, by
actively concealing a material fact which was within his knowledge, had indirectly deceived the petitioner.

Whether time of representation is material.—In Anath Nath De v. Lajjabati Devi2, it was held that the question of
consent of the parties to the marriage arises at two stages: at the time when parties consent to solemnize the
marriage and at the time when marriage itself is solemnized. It was further held that Hindu marriage being not a
contract, the consent at the first stage though brought about by fraud cannot affect the validity of marriage but if
consent is brought about by fraud at the time of solemnization of marriage then it affects the validity of marriage.
This view was followed by the Punjab High Court in Harbhajan Singh v. Brij Balab Kaur3. But Kapoor, J. in Surjit
Kumar Harichand v. Raj Kumari4, has, rightly, dissented from this view: if fraud on consent has been practised even
at earlier stage and marriage takes place in pursuance of that consent, it will vitiate the marriage5. However if fraud
ceased on the date of marriage, this plea cannot be taken later on.6[290]

Among Hindus where even now a large number of marriages are arranged marriages, question of fraud as to the
material fact or circumstance concerning the respondent is very real, since the scope of fraud in arranged
marriages is very large. This seems to the rational behind the amendment in the Hindu Marriage Act, 1955. This
also seems to be the reason why similar amendment has not been made in thespecial Marriage Act, 1954.

Muslim law
Minor’s Marriage: repudiation of Marriage and option of Puberty.—It has been stated earlier that under Muslim
law a minor can be married by his or her guardian in marriage, and such a marriage is valid unless set aside.
However, Muslim law permits a minor to cancel his marriage on attaining puberty under certain circumstances. In
 Page 31 of 44
Chapter IV NULLITY OF MARRIAGE

this regard, a distinction is made between the guardianship of the father and grandfather and the guardianship of
others.

The former is technically called right of repudiation of marriage and the latter is known as “option of puberty”. This is
nearest to the concept of annulment of marriage, otherwise the concept of annulment of marriage is not known to
Islamic law. It may be emphasised that the right of cancellation of marriage on attaining puberty is available only
when a Muslim is married below the age of puberty.

The Dissolution of Muslim Marriage Act, 1939, has not modified this provision as regards the girls who are married
below the age of puberty. This has been now made a ground of divorce. In other words, on this basis a Muslim
married woman can file a suit for dissolution of marriage. Clause (vii) of section 2 of the Act runs:

That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years,
repudiated the marriage before attaining the age of eighteen years: provided that the marriage has not been consummated.

The result of this modification is that the old Muslim law would continue to apply to males, but would apply to female
as modified by the aforesaid clause.

In Muslim law there is nothing like declaratory suits in a case where marriage is void. There exists a term known as
faskh which has been translated by some as “annulment of marriage” but in fact it is nothing like “annulment of
marriage” as it is known under English law and the Indian matrimonial statutes, since Muslim Law has never
recognized anything like voidable marriages. When a marriage is repudiated for a cause imputable to the wife then
the term faskh has been employed. However, a suit for declaration that a marriage is null and void can be filed
under section 34 of the Specific Relief Act, 1963.

Matter is being further discussed under the following titles:—

(a) Repudiation of marriage,
(b) Option of puberty,
(c) Dissolution of marriage of a girl who was married before she attained puberty, and
(d) Declaratory suits.

Repudiation of marriage.—The right of repudiation of marriage of a Muslim who is married by his father or
grandfather is available only under certain circumstances. The Muslim jurists have not been unanimous whether a
child who is married by his father or grandfather can repudiate the marriage on attaining puberty1. The consensus
of opinion seems to be that the child can do so only in certain circumstances. According to the Radd-ul-Muktar, “If
the marriage is in all aspects suitable, the bride and bridegroom are equally matched in rank, position and age, and
there is no deformity or evil habits on one side or the other, the dower is not unreasonably low, in such a case the
minor, on attaining puberty, has no option; for it is presumed that all these circumstances combining the love which
a father or grandfather bears to his children or grand-children, must have actuated him in making his choice, which
ought not to be set aside at the mere caprice of the young people after they attain the age of puberty”1. It seems
that this prohibition has been absolute in the case of female children, and thus a girl who was given in marriage by
her father or grandfather could not repudiate the marriage in any circumstances2. It appears to be the established
position that if the father or the father’s father has acted carelessly, wickedly, fraudulently or negligently, or where
the minor is married to a lunatic, impotent person, or to a person of unsound mind, or to an idiot, or eunuch, or to a
person who is not equal in rank, or the marriage is to the manifest disadvantage of the child, the child, male or
female, has the right of repudiating the marriage. Amir Ali takes the view that in these cases the marriage is subject
to the ratification of the minor, which may be express or implied3. Others hold the view that such a marriage is
avoidable at the option of the minor. If the minor on attaining majority does not repudiate it, the marriage will be a
perfectly valid marriage4. The better view seems to be that the right of repudiation may be exercised on attaining
majority, unless it has been lost by express or implied ratification5.

The courts in India have allowed the right of repudiation of girls even when they have been married by the father or
grandfather. In Aziz Bano v. Muhammad, the Allahabad High Court said that a Shia girl given in marriage by her
father to a Sunni male has an option of repudiation of marriage, unless she has ratified it by consummation or
otherwise. To hold otherwise, the court added, would be contrary to all rules of equity and justice6.

As regard Muslim wives, the occasion for cases like Aziz Bano v. Muhammad, will not arise now—after the coming
into force of the Dissolution of Muslim Marriage Act, 1939. As regards Muslim males married by their fathers or
 Page 32 of 44
Chapter IV NULLITY OF MARRIAGE

grandfathers before they attained the age of puberty, a marriage can be repudiated only when marriage is
manifestedly to the disadvantage of the minor. It may be interesting to note that most of the cases that have come
before the courts relate to repudiation of marriage by females who were married before they attained puberty. But, it
is submitted, on the same basis the marriage of male can also be repudiated7.

Option of puberty.—The peculiar aspect of the law of option of puberty is that a marriage can be repudiated by a
minor on attaining majority without showing any cause. Again, most of the cases that have come before the courts
relate to Muslim wives.

In the exercise of the right of option of puberty, a minor, who is given in marriage by a person other than her father
or grandfather, has a right to repudiate the marriage on attaining majority without showing any cause. This absolute
right of the minor of repudiating marriage on attaining puberty is technically called “option of puberty”. The Shias go
a step further and hold the view that in such a case marriage is wholly ineffective unless ratified by the minor on
attaining puberty1. The option of puberty is subject to the following limitations:—

(a) The option should be exercised immediately on attaining puberty.

(b) The marriage should not have been consummated.

The courts have taken the view that the minor wife does not lose her right of repudiation of marriage if she does not
know that she has the right, and, therefore, she can exercise the right after she has come to know of it. Further, she
can exercise the right within a reasonable time after she become aware of it2. This view is in consonance with Imam
Muhammad, though it is contrary to the views propounded by Abu Hanifa and Abu Yusuf. Amir Ali also favours this
view3. The courts have gone to the extent that delay in the exercise of the option may be condoned even on
account of non-acquiescence4.

The same liberal interpretation has been given to the second limitation. The courts have held that the
consummation must have taken place with the consent of the wife5.

Minor’s marriage by guardians: its consequences.—It should be noted that when a minor is married by any
guardian (father, grandfather or any other guardian in marriage), the marriage would remain valid unless it has been
repudiated by the minor on attaining puberty. It is submitted that the view expressed by some that the marriage will
remain in suspense till it is ratified by the minor on attaining puberty is not correct. It is an established view that if
one of the parties dies before exercising the option, the other party will have the right to inherit the property of the
deceased spouse. In short, reciprocal rights of the spouses remain till the marriage is repudiated by the minor on
attaining puberty6.

The Shia law is different. The Shias do not confer guardianship in marriage on any person other than the father and
grandfather. In view of this no other person can give the child in marriage. If any other person gives the child in
marriage, the marriage is not valid unless ratified by the guardian or by the minor himself on attaining majority. This
would mean that if either of the spouses dies before the marriage is ratified, the marriage would not result in any
spousal reciprocal rights. Obviously, there would be no right of inheritance1.

Whether a decree of court necessary to confirm the repudiation or exercise of option.—There is conflict of
opinion among Muslim jurists as to whether a repudiation of marriage or exercise of option of puberty needs
confirmation by the kazi (court). The Hedaya2 and the Durr-ul-Muhtar take the view that a judicial confirmation is
necessary. Amir Ali holds the view that no such confirmation is required. The result of the former view is that
marriage subsists till judicial confirmation is made and mutual rights and obligations also continue to be available3.
If one of the parties dies, the other has the right to inherit the property4. This conflict among Muslim law-givers is
reflected in the decisions of the courts. In an early case, it was held that a woman who solemnized a second
marriage after exercising the option was not guilty of bigamy even though the option was not confirmed by a decree
of the court5. Again, in a case, decided before the Dissolution of Muslim Marriage Act, 1939, the court held that an
assertion by the wife that she had exercised the option of puberty amounted to repudiation of marriage by her6. In a
case decided after the Dissolution of Muslim Marriage Act, 1939, the Madhya Pradesh High Court held that
repudiation of Marriage in exercise of the option of puberty must be confirmed in the court7. B.R. Verma8 says that
option of puberty would be deemed to be exercised in the following cases:—
(1) if she marries another person on attaining puberty;
(2) if she sets up the option of puberty as a defence in a suit for restitution of conjugal rights in her pleadings;
 Page 33 of 44
Chapter IV NULLITY OF MARRIAGE

(3) if she institutes a suit for a declaration that her marriage was fictitious;
(4) if she denies the marriage and unequivocally says that she is not prepared to accept the man as her
husband;
(5) if she expresses a disapproval of the marriage and the intention to repudiate it before consummation
without a formal order of the court.

Thus, where a woman made an affirmation to the Deputy Commissioner that she was not prepared to accept the
marriage and that she wanted to enter into a marriage with a husband of her choice, it was held that she was not
guilty under section 494 of the Indian Penal Code, 1860 the repudiation need not be something akin to an oral
repudiation before witnesses.

In an English case, in the matter of divorce, it was held by the court of Appeal that the rule was that a person could
not rely on a period of a unlawful residence in order to establish habitual residence in the jurisdiction and so obtain
a benefit or advantage. It was a rule of public policy and not a rule of construction, that a rule of public policy which
terminated proceedings so far advanced as, would be perverse and incompatible with the wife’s right to a fair trial
under article 6 of Schedule 1 to the Human Rights Act, 1998 (English) or that a person who sought to invoke the
jurisdiction of the court was not seeking a benefit or a advantage within that rule of public policy, or that the benefit
or advantage sought by a person seeking to invoke the jurisdiction of the court under section 5(2) of the 1973 Act
was not of such a nature as to make it offensive for that person to be allowed to obtain it by unlawful means, that
therefore, there was no rule of public policy that precluded a person from establishing habitual residence under
section 5(2) by relying on a period of unlawful residence, although the illegality of person’s residence was relevant
to the factual question of whether habitual residence had been established, that in the circumstances the judge
should have found that the wife had been habitually resident in England for the one year period required by section
5(2) and that accordingly, the wife had thereby established jurisdiction.1[313]

Dissolution of marriage on the exercise of option of puberty by a female.— The law relating to the exercise of
option of puberty or repudiation of marriage, as regards Muslim wives has been changed by the Dissolution of
Muslim Marriages Act, 1939. Under the Act the following conditions have been laid down for filing a suit for
dissolution of marriage:—
(a) that the female was married before she attained the age of fifteen years,
(b) that she repudiated the marriage before she attained the age of eighteen years, and
(c) that she repudiated the marriage before the marriage was consummated.

In her case, it makes no difference whether she was given in marriage by the father, grandfather or any other
guardian in marriage. The law is uniform for all sects and schools.

On the question whether substantive suit is necessary by the wife under the Dissolution of Muslim Marriages Act,
there is a conflict of judicial opinion. The Calcutta High Court has taken the view that such a suit is necessary2,
while the Madhya Pradesh High Court has taken the view that the wife can exercise the right even in a suit for
restitution of conjugal rights by the husband3. It is submitted that now there being a statutory law in existence, the
old Muslim law no longer exists, and therefore a suit for dissolution of marriage on the basis of exercise of option of
puberty is necessary.

The courts have tried to interpret the provision liberally. Thus, in Ghulam Sakina v. Falak Sher Allah Baksh4, the
marriage of a girl was solemnized before she attained the age of puberty. It was also consummated before she
attained puberty. On her suit for dissolution of marriage on the ground of the exercise of option of puberty, the court
rejecting the plea of the husband that the suit was not maintainable as marriage had already consummated, held
that that did not amount to consummation of marriage.

Declaratory Suit.—Just as declaratory suit can be filed by any person in respect of any matter relating to right and
status, a Muslim can also file such suits. In the absence of the matrimonial cause of nullity of marriage, it would
appear that when a Muslim wants a declaration that his marriage is null and void or any other declaration regarding
marriage, the only course open to him is to file a suit for declaration under section 34 of the Specific Relief Act,
1963. A Muslim may file a declaratory suit in respect of the following matters:—

(i) that the marriage of the plaintiff with the defendant is null and void;
 Page 34 of 44
Chapter IV NULLITY OF MARRIAGE

(It has been seen in Chapter II of this work that the concept of void marriage is recognized under Muslim law. Just
as when a marriage of a Hindu, Christian or Parsi is void, no legal action, either a petition under the matrimonial law
of declaratory suit under the Specific Relief Act, 1963 is necessary, and any party can take a stand on the invalidity
of the marriage, similarly no legal action need be taken regarding a void Muslim marriage. But if any of the parties
to the marriage, or an interested third person, desires a judicial declaration of the fact of nullity of marriage, he or
she may file a declaratory suit.)
(ii) that the defendant who is claiming himself or herself to be the husband or wife of the plaintiff, is, in fact, not
his or her husband or wife1; (this is known as jactitation);
(iii) that the plaintiff is a lawfully wedded husband or wife of the defendant2;
(iv) that the plaintiff in exercise of his right of repudiation of marriage, or in the exercise of the option of puberty,
has repudiated the marriage with the defendant3;
(v) that the plaintiff has terminated his other irregular marriage with the defendant; or
(vi) that the plaintiff’s marriage with the defendant has been validly dissolved.

Claim for Nullity of Marriage under the Divorce Act, 1869

In a case before the Supreme Court, the respondent-husband had filed a petition before the District Court for a
declaration that his marriage with the appellant was a nullity on ground inter alia under section 19(4) of the Act that
on the date of their marriage appellant’s marriage with another person was subsisting. The application was
contested by the appellant by stating that her former marriage was annulled by the order of the Ecclesiastical
Tribunal (Church Court). The District Judge declared the marriage between the appellant and the respondent a
nullity merely on the basis of the pleadings of the parties. According to him, as the appellant had admitted the
earlier marriage and as there was no decree of any civil court in accordance with the provisions of the Divorce Act,
the former marriage continued in spite of annulment order passed by the Ecclesiastical Tribunal, and the marriage
had to be declared a nullity because of section 19(4) of the Divorce Act. As required by section 20 read with section
17 of the Act, the order of the District Judge was placed before a Bench of three Judges of the High Court which
held: “Canon Law (or personal law of Christians) can have theological or ecclesiastical implications to the parties.
But after the Divorce Act came into force a dissolution or annulment granted under such personal law cannot have
any legal impact as statute has provided a different procedure and a different Code for divorce or annulment.”

The Court held that Divorce Act purports to amend the law relating to divorce of persons professing the Christian
religion and to confer upon courts, which shall include District Court and the High Court, jurisdiction in matrimonial
matters. In this background, unless the Divorce Act recognises the jurisdiction, authority or power of Ecclesiastical
Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclesiastical Tribunal cannot be
binding on the courts which have been recognised under the provisions of the Divorce Act to exercise power in
respect of granting divorce and adjudicating in respect of matrimonial matters. It is well-settled that when
Legislature enacts a law even in respect of the personal law of a group of persons following a particular religion,
then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before
coming into force of such Act. From the provisions of the Divorce Act, it is clear and apparent that they purport to
prescribe not only the grounds on which a marriage can be dissolved or declared to be nullity, but also provided the
forum which can dissolve or declare the marriage to be nullity. Such power has been vested either in the District
Court or the High Court. In this background, there is no scope for any other authority including Ecclesiastical
Tribunal (Church Court) to exercise power in connection with matrimonial matters which are covered by the
provisions of the Divorce Act. Even in cases where Ecclesiastical Court purports to grant annulment or divorce the
Church authorities would still continue to be under disability to perform or solemnize a second marriage for any of
the parties until the marriage is dissolved or annulled in accordance with the statutory law in force. Such
Ecclesiastical Tribunal cannot exercise a power parallel to the power of the District Court or the High Court which
have been vested in the District Court and the High Court by the provisions of the Divorce Act1.

1 Section 11(a)(ii) of the Matrimonial Causes Act, 1973. This should be distinguished from the provision which requires
that if either party is below 18, parental consent does not affect the validity of the marriage. (This was the position under
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Chapter IV NULLITY OF MARRIAGE

the Hindu Marriage Act, 1955 when a girl of below 18 needed the consent of the guardian). This should also be
distinguished from another rule of English law under which it is a criminal offence for a man to have sexual intercourse
with a girl under sixteen. Under section 375 of the Indian Penal Code, 1860, it amounts to rape. But if she is his wife
and not under 15, it is not a rape.
2 Section 5(iii) of the Hindu Marriage Act, 1955 (before the amendment) permitted the marriage of a girl who had attained
the age of 15, but violation of this condition did not affect the validity of marriage. Under the amended law, the ages are
21 and 18 for bridegroom and bride respectively, but marriages below these ages are still valid.
3 Section 24(1)(i).
4 Under the Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936, this is the position.
5 Section 3.
6 Section 12(c) of the Matrimonial Causes Act, 1973. Earlier marriage on this basis was considered to be void. But see
Ross Smith v. Ross Smith, (1961), p. 39.
1 The Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954, render a marriage voidable if consent is obtained by
force or fraud.
2 Section 19(3). Under the Special Marriage Act, 1954 insanity renders marriage void. Under Hindu Law it is voidable.
Under the Parsi Marriage and Divorce Act, 1936, pre-marriage insanity is a ground of divorce.
3 See section 12 of the Matrimonial Causes Act, 1973, section 12 of the Hindu Marriage Act, 1955, section 25 of
thespecial Marriage Act, 1954. These are not conditions of marriages, as capacity to marry is called under these
statutes.
4 This was mainly to prevent bastardization of children of voidable marriages.
1 This ground has been enacted as a consequence of decision in Corbett v. Corbett, (1970) 2 All ER 33 : (1970) 2 WLR
1306, wherein the question of validity of the marriage of a person who was born a male but before marriage had
undergone a sex change surgery and thereby became a female, came into question. The court, by majority, held such
a marriage void. But some doubts were cast. In India no such case has arisen and there need not to any doubt that
there cannot be a valid marriage between two persons belonging to the same sex.
1 Rabindra Prasad v. Sita Devi, (1985) 2 HLR 69: (1986) 2 DMC 31 : AIR 1986 Pat 128 .
2 The Prohibition of Child Marriage Act, 2006 has added some new grounds for void and voidable marriages. Section 12
makes such child marriages null and void where the child is enticed or taken away from the custody of his/her lawful
guardian or is by force compelled or by deceitful means induced to go from any place or is sold for the purposes of
marriage and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked
or used for immoral purposes. Section 3 of the said Act makes a marriage voidable where either or both the parties to
the marriage are child according to the Act at the behest of the party who is a child. (It may be pertinent to mention here
that according to the Act in case of males a child is a person who has not completed the age of 21 years and in case of
females a person who has not completed the age of 18 years). It is secular Act, therefore, applicable on all
communities.
1 De Renville v. De Renville, (1949), p. 100, per Lord Greene.
2 Sona Ralsel v. Kiran Mayee Nayak, AIR 2009 Chh 55 : 2009 (3) MPHT 43.
3 AIR 1973 P&H 442 : 75 Pun LR 346. In Maharani Kusum Kumari v. Kusum Kumari, JT (1991) 1 SC 278, the Supreme
Court confirmed this view in relation to cases coming before the 1976 Amendment.
4 Birendra Bikram Singh v. Kamla Devi, AIR 1995 All 243 [LNIND 1994 ALL 61].
5 AIR 1997 SC 109 : (1996) 6 SCC 337; also see Jocob Mathew v. Maya Philip, AIR 1999 Ker 192 [LNIND 1998 KER
351]: 1999 (2) Marri LJ 574: 1999 Mat LR 409.
6 S.C. Santhi v. P. Venktesh, AIR 1996 Mad 150 [LNIND 1995 MAD 589]: 1996 (1) CTC 658 [LNIND 1995 MAD 589].
1 Margaret Palai v. Savitri, AIR 2010 Ori 45 [LNIND 2009 ORI 116].
2 Laxshamma v. Thayamma, AIR 1974 AP 255 [LNIND 1973 AP 163]; Kusum Kumari v. Kusam, JT (1991) 11 SC 278 .
3 Dilip v. Ravi, AIR 2014 Raj 89 [LNIND 2014 RAJ 75]: 2014 (3) WLC 38.
1 M.M. Malhotr v. Union of India, AIR 2006 SC 80 [LNIND 2005 SC 777]: JT 2005 (9) SC 506 [LNIND 2005 SC 777]:
(2005) 8 SCC 351: 2005 (10) SRJ 130: (2005) 8 SCALE 202 [LNIND 2005 SC 777]: 2005 (7) Supreme 111.
2 Manish Singh v. State (Government of NCT), AIR 2006 Del 37 [LNIND 2005 DEL 758]: 2006 AIHC 64 (NOC): 2006
(126) DLT 28 [LNIND 2005 DEL 758]: 2006 (86) DRJ 241 [LNIND 2005 DEL 758].
1 Mahila Mathura Bai v. Ramwati, (1990) 1 HLR 80: AIR 1990 MP 276 [LNIND 1989 MP 245] (a case under Hindu Law).
 Page 36 of 44
Chapter IV NULLITY OF MARRIAGE

2 Bhogadi Kannababu v. Vuggina Pydamma, AIR 2006 SC 2403 [LNIND 2006 SC 388]: (2006) 5 SCC 532 [LNIND 2006
SC 388].
3 Parayankandiyil Eravath Kanapravan Kalliani Amma v. K. Devi, AIR 1989 Ker 279 [LNIND 1989 KER 208]: (1989) 2
Ker LJ 66: (1989) 2 Ker LT 80 : 1990 (1) Hindu LR 98.
1 Sivagnana Vadivu Nachiar v. Krishna Kanthan, (1976) 89 Mad LW 706 : ILR (1977) 1 Mad 216 ; Shantaram Tukaram
Patil v. Dagubai Tukaram Patil, AIR 1987 Bom 182 [LNIND 1987 BOM 10]: (1987) 89 Bom LR 51: (1987) 1 Bom CR
714 : 1987 Mah LJ 179.
2 Shahji Kisan Asme v. Sitaram Kondi, AIR 2010 Bom 24 [LNIND 2009 BOM 878].
3 Goverdhana Singh v. Hiraman, (1980) 2 Andh LT 210; Jagarlamudi Sujata v. Jagarlamudi Jagadish Krishna Prasad,
AIR 1992 AP 291 [LNIND 1991 AP 283]: 1992 (1) ALT 503: 1992 (1) APLJ 355 [LNIND 1991 AP 283]: 1992 (1) Andh
WR 202.
4 Margabandhu v. Kothandarama Mandhiri, AIR 1984 Mad 270 [LNIND 1983 MAD 182]: (1983) 96 Mad LW 448 [LNIND
1983 MAD 182]: (1983) 2 Mad LJ 445: 1984 Hindu LR 63; Perumal Giounder v. Panchayappan, AIR 1990 Mad 110
[LNIND 1989 MAD 252]: (1990) 2 DMC 338.
1 Margabandhu v. Kothandarama, AIR 1984 Mad 270 [LNIND 1983 MAD 182]: (1983) 2 MLJ 445 [LNIND 1983 MAD
182]: (1984) 1 DMC 148.
2 AIR 2000 SC 735 [LNIND 2000 SC 171]: (2000) 1 DMC 164: (2000) 2 SCC 431 [LNIND 2000 SC 171].
3 Sudershan Karir v. State, AIR 1988 Del 368 [LNIND 1987 DEL 378]: (1988) 24 Reports 89: (1988) 1 Cur CC 313: 1988
Marri LJ 150.
1 AIR 2000 MP 288 [LNIND 2000 MP 192]: 2001 (2) Civ LJ 202: 2001 (1) ICC 773: 2000 (3) MPLJ 361.
2 AIR 2010 SC 2685 [LNIND 2010 SC 515]: 2010 AIR SCW 3503: 2010 (2) Marri LJ 137.
3 See section 11 of the Hindu Marriage Act, 1955, under which the first three are laid down as grounds of void marriage.
4 Nilesh Narin Rajesh Lal v. Kashmira Bhupendrabhai Banker, AIR 2010 Guj 3 [LNIND 2009 GUJ 349]: 2010 (1) HLR
439: 2010 (1) Marri LJ 346.
1 Gullipilli Sowria Raj v. Bandaru Pavani alias Gullipilli Pavani, AIR 2009 SC 1085 [LNIND 2008 SC 2369]: 2009 AIR
SCW 244: (2009) 1 SCC 714 [LNIND 2008 SC 2369]: (2008) 16 SCALE 109 [LNIND 2008 SC 2369].
2 Section 19.
3 In Aykut v. Aykut, AIR 1940 Cal 75 : (1940) 2 Cal 60, at the time of marriage husband represented that he was a
Christian, though in fact he was a Muslim. The marriage was declared null and void.
4 Prior to coming into force of Act 51 of 2001 the jurisdiction to pass a decree on this ground vested in the High Court.
5 Section 57, see Baltic v. Brown, ILR (1913) 38 Mad 452 : 30 Ind Cas 413.
6 Section 3(c).
7 Section 30.
8 Section 24.
1 Section 24(2).
2 Daljit Kaur alias Tony v. Amarjit Kaur, AIR 2009 P&H 118.
3 Prakash Chander v. Parmeshwari, AIR 1987 P&H 37 : (1986) 90 Punj LR 581; Sukhbir Kaur v. Harpreet Singh, AIR
2015 P&H 127.
4 Section 17.
5 Sections 43 and 44.
6 Section 495 of the Indian Penal Code, 1860.
1 S. Nagalingam v. Sivagami, (2001) 7 SCC 487 [LNIND 2001 SC 1898]: AIR 2001 SC 3576 [LNIND 2001 SC 1898].
2 AIR 1988 SC 644 [LNIND 1988 SC 64]: (1988) 1 SCC 530 [LNIND 1988 SC 64]: 1988 Cr LJ 793 : (1988) 1 KLT 416
[LNIND 1988 KER 50].
3 Asha Rani v. Gulshan Kumar, AIR 1995 P&H 287 : 1995 (3) Cur CC 23: 1995 (21) Marri LJ 417: 1995 (2) Punj LR 21;
Sona Rakshel v. Vinod Kumar Nayak, AIR 2012 Chh 100 .
4 Pritpal Kaur v. Jagrup Singh, AIR 1999 P&H 16 : 1999 (1) Marri LJ 450: 1999 Mat LR 164: 1998 (4) Rec Civ R 269.
5 Nimbamma v. Rathnamma, AIR 1999 Kant 226 [LNIND 1998 KANT 384]: 1999 (4) Cur CC 399: 1999 (5) Kant LJ 19 :
2000 (1) Marri LJ 135.
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1 Surjeet Singh v. Mohindra Pal Singh, AIR 1988 P&H 156 : 1988 Mahr LJ 206; Birendra Bikram Singh v. Kamala Devi,
AIR 1995 All 243 [LNIND 1994 ALL 61].
2 AIR 2005 SC 422 [LNIND 2004 SC 1237]: 2004 AIR SCW 6990: JT 2004 (10) SC 366 [LNIND 2004 SC 1237]: (2005)
2 SCC 33: 2005 (1) SCJ 376 : (2004) 10 SCALE 391 [LNIND 2004 SC 1237].
3 Daljit Kaur@ Tony v. Amarjit Kaur, AIR 2009 P&H 118.
4 Mohan Lal Sharma v. Parveen, AIR 2010 P&H 65.
5 Harkanwalpreet Singh v. Harshpreet Kaur, AIR 2014 P&H 60.
6 Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 [LNIND 1979 SC 73]: (1979) 2 SCC 170 [LNIND 1979 SC 73].
1 Sarla Mudgal v. Union of India, (1995) 3 SCC 635 [LNIND 1995 SC 661]: AIR 1995 SC 1531 [LNIND 1995 SC 661]:
1995 AIR SCW 2326.
2 AIR 1967 Pat 220 ; see also Trilokchand Modi v. Om Prakash Jaiswal, AIR 1974 Pat 335 : 1974 BLJR 272.
3 AIR 1964 Mys 247 .
4 See also Sitabai v. Ramchandra, 59 Bom LR 885: (1958) Bom 190: AIR 1958 Bom 116 (FB); Bhonrilal v. Kaushaliya,
AIR 1970 Raj 83 [LNIND 1969 RAJ 96]: 1969 Raj LW 427.
5 Birendra Bikram Singh v. Kamla Devi, AIR 1995 All 243 [LNIND 1994 ALL 61].
6 Section 18(6).
1 Sexual Offences Act, 1956, sections 10 and 11.
2 Section 18(a).
3 Section 19(1).
4 Section 24(1)(i).
5 Section 12(1)(a).
6 Section 12.
1 Gajjala Shankar v. Anuradha, AIR 2006 AP 65 [LNIND 2005 AP 975]: 2006 AIHC 1262: 2005 (6) Andh LD 430: 2005
(6) Andh LT 565 [LNIND 2005 AP 975].
2 Section 24.
1 Under the Hindu Marriage Act, 1955, the marriage of an impotent person is voidable,see section 12(1)(a).
2 Rattan Moni Devi v. Nagendra Narain Singh, AIR 1949 Cal 404 : (1948) CWN 689; Rakeya Bibi v. Anil Kumar Mukherji,
(1949) 2 Cal 119; A. v. B., AIR 1952 Bom 486 [LNIND 1952 BOM 21]: 54 Bom LR 725.
3 Kancupati Malla Reddi v. K. Subbama, AIR 1956 AP 237 [LNIND 1956 AP 24]: 1956 Andh WR 590; Kanital Motichand
v. Vimla, AIR 1952 Sau 44 ; Ram Devi v. Raja Ram, AIR 1963 All 564 [LNIND 1962 ALL 199]: 1963 All LJ 658.
4 (1959), p. 92; see also Scoot v. Scoot, (1959), p. 103.
1 Section 24(i)(ii).
2 Section 2(5).
4 Section 12(1)(a).
5 Manjit Kaur v. Surinder Singh, AIR 1994 P&H 5 : 1994 Marri LJ 105: 1994 (1) Punj LR 241 : 1994 (1) LJR 459.
6 Section 30.
7 AIR 1970 J&K 130 (DB).
1 Section 12.
2 Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, AIR 1970 SC 137 [LNIND 1969 SC 207]: (1969) 2 SCA 90 [LNIND
1969 SC 207]: 1970 (1) SCJ 261 [LNIND 1969 SC 207]: (1970) 1 SCR 559 [LNIND 1969 SC 207]; Ushman v. Inderjit,
AIR 1977 P&H 97 : 78 Punj LR 972: 1977 Mat LR 105: 1978 Marri LJ 260; Samar v. Snighda, (1977) 1 Cal 44 : 1977
HLR 59: AIR 1977 Cal 213 [LNIND 1976 CAL 243]; George Philip v. Saly Elias T., AIR 1995 Ker 289 [LNIND 1994
KER 289]: ILR (1995) 1 Ker 410 : 1994 (2) Ker LJ 956: 1994 (2) Ker LT 947.
3 Rajendar Pershad Bhardwaj v. Shanti Devi, AIR 1978 P&H 181 : 79 Punj LR 514: 1978 Marri LJ 159: 1978 Hindu LR
766.
4 Suvarnabahen v. Chinbhai, AIR 1970 Guj 43 [LNIND 1968 GUJ 78]: 10 Guj LR 661; Chaman Lal Bhat v. Rupa Devi,
AIR 1966 J&K 68 : 1966 Kash LJ 196; Shantabai alias Gourabai W/o Tarachand v. Tarachand, AIR 1966 MP 8 [LNIND
 Page 38 of 44
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1965 MP 263]: 1965 MPLJ 615: 1965 Jab LJ 770 . (Both the parties were impotent). (Shiv Dayal, J., has given a
brilliant summary of law of impotency.) Laxmi Devi v. Babu Lal, AIR 1973 Raj 89 : 1972 WLN 463: 1972 Raj LW 598 :
ILR (1972) 22 Raj 738 . (Wife had no vagina and after surgical operation an artificial vagina of 2½” was constructed. It
was held that the wife continued to be impotent.)
5 Jagannath Muduli v. Nirupama Behera, AIR 2009 Ori 59 [LNIND 2008 ORI 171]: 2009 AIHC 434 (NOC): 2009 (2) CCC
784 : 2008 (2) Ori LR 387.
6 Vinay Kumar v. Jaya, AIR 2010 HP 112 .
7 R. v. R., (1952) I All ER 1194; W. v. W., (1967) 1 WLR 1559 ; G. v. G., (1924) AG 349.
8 Clarke v. Carke, (1943) P. 1.
9 Rajendar Pershad Bhardwaj v. Shanti Devi, AIR 1978 P&H 181 : 79 Punj LR 514: 1978 Marri LJ 159: 1978 Hindu LR
766.
1 Rajinder v. Manmohan, AIR 1972 P&H 412.
2 Sakuntala v. Om Prakash, AIR 1981 Del 53 : (1980) 2 Del 1609.
3 D.E. v. A.G., (1845) 1 Rob Ecc 279; see also Laxmi v. Babu Lal, AIR 1973 Raj 89 : 1972 WLN 463: 1972 Raj LW 598 :
ILR (1972) 22 Raj 738 .
4 W. v. W., (1967) 3 All ER 178.
5 Boxter v. Boxter, (1948) AG 274; see also Laxmi v. Babu Lal, AIR 1973 Raj 89 : 1972 WLN 463: 1972 Raj LW 598 : ILR
(1972) 22 Raj 738 .
6 Kanthy Balavendram v. S. Harry, AIR 1954 Mad 316 [LNIND 1953 MAD 133]: ILR (1954) Mad 15 [LNIND 1953 MAD
133] (FB) (under the Indian Divorce Act).
7 A. v. B., (1953) Bom LR 458 (under Indian Divorce Act); Rangaswami v. Arvindamal, AIR 1957 Mad 243 [LNIND 1956
MAD 133] (English and American cases have been reviewed); Gudivada Venkateswararao v. Gudivada Nagamani, AIR
1962 AP 151 : 1961 Andh LT 682: ILR (1962) AP 70.
8 1963 Ker LT 315.
9 (1967) Guj LR 966.
10 AIR 1973 Raj 89 : 1972 WLN 463: 1972 Raj LW 598 : ILR (1972) 22 Raj 738 .
11 AIR 1978 P&H 181 : 79 Punj LR 514: 1978 Marri LJ 159: 1978 Hindu LR 766.
1 L.B. v. A.B., AIR 1991 Bom 8 [LNIND 1990 BOM 283]: (1990) 3 Bom CR 65 [LNIND 1990 BOM 283]: 1990 (2) Civ LJ
601 : 1990 Mat LR 394(case is under Divorce Act).
2 AIR 1963 Punj 114 : 64 Punj LR 1106.
3 See also Kishore Sahu v. Snehprabha, AIR 1943 Nag 185 : (1943) Nag 474; Arun Kumar Patra v. Sudhansu Bala
Patra, AIR 1962 Ori 65 ; Gudivada Venkateswararao v. Gudivada Nagamani, AIR 1962 AP 151 : 1961 Andh LT 682:
ILR (1962) AP 70; Laxmi Devi v. Babu Lal, AIR 1973 Raj 89 : 1972 WLN 463: 1972 Raj LW 598 : ILR (1972) 22 Raj 738
.
4 (1963) KLT 315.
5 See also Brij v. Sumitra, AIR 1975 Raj 125 [LNIND 1975 RAJ 1]: 1975 HLR 521 (Raj); S. John Dhanadurai v. J. Marry
Suganthi, AIR 1994 Mad 81 [LNIND 1993 MAD 388]: 1994 (1) Hindu LR 544: 1994 Marri LJ 279.
6 Suvarna v. G.M. Achary, AIR 1979 AP 169 [LNIND 1978 AP 47]: 1978 LS (AP) 148: (1978) 2 Andh WR 522: 1979
Hindu LR 274; Vincent Adolf v. Juma Beatrice, AIR 1985 Bom 103 [LNIND 1984 BOM 292]: 1984 Mahr LJ 926: 1985
Mah LR 182; Suprabha Joel Capt. v. Dr. Joel Solomon, AIR 1997 Bom 171 [LNIND 1996 BOM 914]: (1997) 1 DMC
306 (DB); Renuka v. Rajendra Hada, AIR 2007 Raj 112 [LNINDU 2007 RAJ 2041]: 2007 AIHC 361 (NOC): 2007 (3)
Raj LW 1839 : 2007 (1) WLC 677.
7 Urmila Devi v. Narinder Singh, AIR 2007 HP 19 [LNIND 2006 HP 52]: 2007 AIHC 198 (NOC): 2007 (50) All Ind Cas
684: 2007 Mat LR 245.
8 (1962) All ER 33.
1 Raghavachariar Hindu Law, (6th Edn.), 1037.
2 Samir Adhikary v. Krishna Adhikary, AIR 2009 Cal 278 [LNIND 2009 CAL 380]: 2009 (84) All Ind Cas 856: 2009 (3) Cal
LT 596.
3 Derrett Critique of Modern Hindu Law (1st Edn.), 311.
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4 Gudivada Venkateswararao v. Gudivada Nagamani, AIR 1962 AP 151 : 1961 Andh LT 682: ILR (1962) AP 70;
Rangaswami v. Arvindamal, AIR 1957 Mad 243 [LNIND 1956 MAD 133].
5 (1967) 8 Guj LR 966: ILR (1967) Guj 681.
6 AIR 1971 MP 168 [LNIND 1970 MP 14]: 1971 MPLJ 411.
7 AIR 1971 MP 168 [LNIND 1970 MP 14] (169): 1971 MPLJ 411 . See also Laxmi Devi v. Babu Lal, AIR 1973 Raj 89 :
1972 WLN 463: 1972 Raj LW 598 : ILR (1972) 22 Raj 738 .
8 AIR 1997 Bom 175 [LNIND 1997 BOM 2]: (1997) II DMC 460(DB).
1 A. v. B., (1952) 50 Bom LR 458.
2 (1970) 2 All ER 33.
3 (1970) 2 All ER 33 (49).
4 Paramasami Pillai v. Sornathammal, AIR 1969 Mad 124 [LNIND 1967 MAD 119]: 81 Mad LW 460: (1969) 1 Mad LJ
197: ILR (1969) 1 Mad 758 .
1 Manu Smriti, IX, 263; Kane, History of Dharmasastra, II, i, 431.
2 Tindell v. Tindell, (1953), p. 63.
3 W. v. W., (1952), p. 150.
4 But see R. v. R., (1949), p. 211; Slater v. Slater, 372 Pa 519 (1953), p. 235.
5 Derrett Critique of Modern Hindu Law 314.
6 G. v. M., (1885) 10 AC 171 : 52 LT 398, per Scbborne, LJ.
7 AIR 1968 Del 79 .
1 See also A. v. B., AIR 1967 Punj 152 .
2 Harthan v. Harthan, (1948) 2 All ER 639 : (1949) P. 115.
3 Pettit v. Pettit, (1963) p. 177. Now this is section 13(1)(b) Matrimonial Causes Act, 1973.
4 Section 30, the words are: “at the instance of either party”.
5 Suvarnabahen v. Chinubhai, AIR 1970 Guj 43 [LNIND 1968 GUJ 78]: 10 Guj LR 661; T. Rangaswami v. T.
Arvindammal, AIR 1957 Mad 243 [LNIND 1956 MAD 133].
1 Rama Natarajan v. Alexander Xavier Nathan, AIR 1999 Mad 236 [LNIND 1999 MAD 170]: (2000) 1 DMC 120 (Mad).
2 See Ranganathan Chettiar v. Lakshmi Achi, AIR 1955 Mad 546 [LNIND 1954 MAD 260]: 68 MLW 156: (1955) 1 Mad
260.
3 Bipin Chandra v. Madhuriben, AIR 1963 Guj 250 [LNIND 1963 GUJ 74]: (1963) 4 Guj LR 890.
4 Ravamma v. Shanthappa, AIR 1972 Mys 157 : (1972) 1 Mys LJ 136.
5 Birendra Kumar v. Hemlata Biswas, AIR 1921 Cal 459 : 24 CWN 914 (a case under the Indian Divorce Act). See also
G.S. Joseph v. S. Edward, (1954) MLW 676.
6 Amol Chavhan v. Jyoti Chavhan, AIR 2012 MP 61 [LNIND 2011 MP 223]: 2012 (2) Civ LJ 543: 2012 (2) DMC 163.
7 AIR 2015 Mad 78 .
1 G. Venkatanarayana v. Kurupati Laxmi Devi, AIR 1985 AP 1 [LNIND 1984 AP 79] (3): (1984) 1 APLJ (HC) 155: (1985)
1 Andh WR 28: 1985 Mat LR 43.
2 Mangho Shiv Dasani v. Mohani, AIR 1988 Raj 180 : 1986 Raj LR 1024.
3 Shamla Devi v. Surjit Singh, AIR 1998 HP 32 [LNIND 1996 HP 63]; Moumita Roychoudhury v. Abhijit Chatterjee, AIR
2014 Ori 5 : 2014 (2) CLR 323: 2014 (1) DMC 161.
4 AIR 1998 AP 371 [LNIND 1998 AP 291]: (2000) 1 DMC 404 (DB).
5 Section 12(1)(b).
6 Section 12(1)(d).
7 Section 25(ii).
8 Section 12(6) of the Matrimonial Causes Act, 1973.
1 AIR 1998 Ker 86 [LNIND 1997 KER 263]: 1998 (2) Civ LJ 144: 1998 (3) Cur CC 137: 1997 (2) Ker LT 653.
 Page 40 of 44
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2 Section 12(6).
3 Manu Smriti, XI, 73.
4 Maya Ram v. Kamla Devi, AIR 2008 HP 43 [LNIND 2007 HP 88]: 2008 AIHC 320 (NOC): 2008 (3) AIR Bom R
403(NOC): 2008 (1) Shim LC 154.
1 C.S. Rangabhattar v. C. Choodamani, AIR 1992 AP 103 [LNIND 1991 AP 237]: 1991 (3) ALT 278: 1992 (2) Civ LJ 417
: 1991 (3) Cur CC 543(DB).
2 First proviso of section 25.
3 Perminder Charan Singh v. Harjit Kaur, AIR 2003 SC 2310 [LNIND 2003 SC 433]: (2003) 1 SCC 161 [LNIND 2002 SC
747].
4 R. Lakshmi Narayan v. Santhi, AIR 2001 SC 2110 [LNIND 2001 SC 1123]: (2001) 4 SCC 688 [LNIND 2001 SC 1123].
5 Surjit Kumar Harichand v. Raj Kumari, AIR 1967 P&H 172 : ILR (1966) 2 P&H 370.
1 In a number of cases coming under Hindu law this view has been held: Vellinayagi v. Subramanian, (1969) 1 MLJ 334
[LNIND 1968 MAD 82]: AIR 1969 Mad 479 [LNIND 1968 MAD 82]; Savalaram v. Yeshodharabai, AIR 1962 Bom 190
[LNIND 1961 BOM 48]: (1962) Bom 326; Rangaswami v. Naramma, (1972) 2 Mys LJ 256; Nanikaram Gellaram v.
Drupadiben, AIR 1974 Guj 111 [LNIND 1972 GUJ 48]: 14 Guj LR 620; Nandkishore v. Munnibai, AIR 1979 MP 45
[LNIND 1978 MP 27]: 1979 MPLJ 105: 1979 Mat LR 143.
2 Nishit Kumar Biswas v. Anjali Biswas, AIR 1968 Cal 105 [LNIND 1967 CAL 60]: 71 CWN 831; Siraguru v. Saroja, AIR
1960 Mad 216 [LNIND 1959 MAD 118]: 73 Mad LW 224: (1960) 1 MLJ 118; Mahendra v. Sushila, AIR 1965 SC 364
[LNIND 1964 SC 87]: (1964) 7 SCR 264: 66 Bom LR 681; Baldev Raj Miglani v. Urmila Kumari, AIR 1979 SC 879 :
1979 UJ (SC) 188: (1979) 3 SCC 782 : 1979 SCC (Cri) 875; Nandkishore v. Munnibai, AIR 1979 MP 45 [LNIND 1978
MP 27]: 1979 MPLJ 105: 1979 Mat LR 143.
3 Mahendra v. Sushila, AIR 1965 SC 364 [LNIND 1964 SC 87]: (1964) 7 SCR 264: 66 Bom LR 681.
4 Sushil Kumar v. Minto Kumari, AIR 2012 Raj 1 [LNIND 2011 RAJ 61]: 2012 (3) Cur CC 514: 2012 (1) WLC 496.
5 Sohan Singh v. Manjit Singh, (1978) Hindu LR 301; Devendra Sharma v. Sandhya, AIR 2007 MP 103 [LNIND 2006
MP 443]: 2007 AIHC 338 (NOC): 2007 (1) MPHT 355: 2007 Mat LR 305
1 Section 32(a) of the Parsi Marriage and Divorce Act, 1936.
2 Section 7(1)(a) of the Matrimonial Causes Act, 1937.
3 Section 12(b) of the Matrimonial Causes Act, 1973.
4 Section 25(i).
5 Law Commission, 33rd Report, Para 27(b).
1 See The Church and the Law of Nullity, (1955), 34.
2 (1975) 5 Fam Law 161.
1 Baxter v. Baxter, (1947) 2 All ER 886 : 64 TLR 8: (1948) AC 274 (House of Lords). This overrules Cowen v. Cowen,
(1943) 2 All ER 197.
2 Cackett v. Cackett, (1950), p. 253; White v. White, (1948), p. 330; Grimes v. Grimes, (1948), p. 323.
3 Brodie v. Brodie, (1917), p. 271.
4 (1960) 1 WLR 236.
5 (1972) 1 WLR 105.
1 Manu Smriti, IX: 59, 167; Gautama, XVIII: 4-15; Baudhayana, II: 2, 3; Apastamba, II: 6, 13, 4-5; Vasistha, XVII: 14;
Vishnu, XV: 2.
2 Jolly in his Tagore Law Lectures on Hindu Law and Custom, 153, (1928) observed:
Recent researches have proved it to be a widely spread custom, occurring amongst many nations which have never
practised polyandry. Distinct traces of its (Ksetraja son) former existence have been discovered in the old laws of my
country, Germany.
3 Although researches in artificial insemination were successfully made towards end of the 19th century (John Hunter, an
English doctor, successfully practised AIH in the late eighteenth century. Another doctor Robert L. Dickinson was
successful in AID in 1980), but the recourse to it has been made only in the 20th century. There is another type of AI
known as CAI in which seed of the husband and that of a third party are co-mingled. See John W. Hanger Artificial
Insemination: Some Practical Considerations for Effective Counselling, 29 North Carolina Law Review, 217 (1960-61).
 Page 41 of 44
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1 See the Canadian case, Oxford v. Oxford, (1921) 49 OLR 15 : 19 OWN 398: 58 DLR 251 (1921), wherein the husband
was living in Canada and wife in England. On the husband’s suit for divorce on the ground of wife’s adultery, the wife
asserted that the child that was born to her was the result of AID. The court did not believe her story.
2 For instance, Muslim law insists that for some purpose actual consummation is necessary, while for other ‘valid
retirement’ is equivalent to consummation. See Paras Diwan, Muslim Law in Modern India, 49-50, (1993); Faizee,
Outlines of Muhammedan Law, 108 (1974).
3 (1953), p. 235.
4 (1949), p. 211.
5 (1949), p. 219.
1 Section 16. Originally, the provision was enacted in the Matrimonial Causes Act, 1950, but the language used was
different. Under the two Indian statutes—the Hindu Marriage Act, 1955, section 16 and Special Marriage Act, 1954,
section 26—the provision was to the same effect with this modification that children of annulled voidable and void
marriages cannot inherit the property of any other relation except their parents. The original provision in these statutes
was almost the verbatim copy of section 16, Matrimonial Causes Act, 1950.
2 Kusum, Artificial Insemination and the Law, 19 JILI 283 (1977).
3 See Paras Diwan and Faizee, supra.
1 Section 2(vii).
1 S.M. Cretney, Principle of Family Law, (1975), 57.
2 Parojcic v. Parojcic, (1959) 1 All ER 1, per Davies, J., who said that he was “inclined to think that the effect of duress
upon a marriage is the same as it is upon a contract, viz. to render it not void but voidable”.
3 Law Commission, 33rd Report, Para 12.
1 Subs. by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 15.
2 Atkia Begam v. Muhammad Ibrahim Rashid Nawah, AIR 1916 PC 250 : 36 Ind Cas 20; Sibt Ahmad v. Amina Khatoon,
AIR 1929 All 18 : ILR 50 All 733; Hafizan v. Saidno, AIR 1925 Sind 22 ; Ahmad-unnissa v. Ali Akbar, AIR 1942 Pesh 19
.
3 Hedaya 34; Rahim Bi v. Mahmed Saleh, 29 IC 866.
4 Sayad Mohiuddin v. Kataty Bai, AIR 1939 Bom 489 : 41 Bom LR 1020: 185 IC 390.
1 Sobrat v. Jangli, 2 CWN 245.
2 Sibt Ahmad v. Amina, ILR 50 All 733: AIR 1929 All 18 ; Atkia Begam v. Muhammad Ibrahim Rashid Nawah, AIR 1916
PC 250 : 36 Ind Cas 20.
3 Bindu v. Rugli, 2 IC 814.
4 Jaiman v. Rulia, 25 IC 43; Rahima v. Md. Saheb, 29 IC 43. See also Abdur Rehman, Muslim Jurisprudence, Art. 55.
5 Baillie, Digest of Moohummudan Law, II, 9; Hedaya 35; see also Jaiman v. Rulia, 25 IC 43.
1 Hedaya, 35; Durr-ul-Mukhtar, 36.
2 Baillie, Digest of Moohummudan Law, I, 57; Hedaya 35.
3 See Amir Ali, Mohammedan Law, II, 307.
4 Baillie, Digest of Moohummudan Law, I, 55.
1 Hafizan v. Saidno, AIR 1925 Sind 22 .
2 Durr-ul-Muktar, 7.
3 Baillie, Digest of Moohummudan Law, II, 1.
4 Baillie, Digest of Moohummudan Law, I, 72.
5 Amir Ali, Mohammedan Law, II, 360.
6 ILR 30 All 343.
* The word “Indian” omitted by Act 51 of 2001 (w.e.f. 3-10-2001).
7 Bishop, Marriage and Divorce, (1981), 286.
1 (1928) 3 SW (2nd Edn.) 72.
2 (1971), p. 226.
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3 Deepak Kumar Singh v. Gauri Devi, AIR 2014 Pat 51 [LNIND 2014 PAT 22]: 2014 (3) Cur CC 411: 2014 (2) DMC 618.
4 (1954), p. 256.
5 See Buckland v. Buckland, (1968), p. 296 (Prosecution for defilement); see also Silver v. Silver, (1955) 2 All ER 614.
6 Szechter v. Szechter, (1971), p. 286; Singh v. Singh, (1971), p. 226.
1 (1968), p. 296.
2 See also H. v. H., (1954), p. 285; Szechter v. Szechter, (1971), p. 286.
3 Principles of Family Law, 59.
4 Per Haugh, J., in Griffith v. Griffith, (1944) IR 35.
5 Principles of Family Law, 60.
6 Purabi Banerjee v. Basudeb Mukherjee, AIR 1969 Cal 293 [LNIND 1968 CAL 157]: 72 CWN 905.
1 ILR (1936) 66 Bom 455 .
2 Tapan Ranjan Das v. Smt. Jolly Das, AIR 1990 Cal 353 [LNIND 1990 CAL 75]: (1990) 1 Cal LJ 361 [LNIND 1990 CAL
75]: 1991 (1) Civ LJ 576 : 1991 (1) DMC 60.
3 See English decisions, Scott v. Sebright, (1886) 12 PD 21; Rice v. Rice, 72 LT 122.
4 Anju Sharma v. Suresh Kumar, AIR 1998 Del 47 [LNIND 1997 DEL 297]: 1998 (1) Civ LJ 918: 1997 (3) Cur CC 52:
1997 (67) DLT 127 [LNIND 1997 DEL 297].
5 Shitij Khurana v. Shreha Khurana, AIR 2014 Del 27 [LNIND 2013 DEL 1623]: 2014 (2) ADR 6: 2014 (207) DLT 10 CN.
1 Kartik Chand v. Manju Rani, AIR 1973 Cal 545 [LNIND 1973 CAL 179]: 78 CWN 36.
2 AIR 1969 Cal 293 [LNIND 1968 CAL 157]: 72 CWN 905.
3 Brijinder Bir Singh v. Vinod alias Parminder, AIR 1995 P&H 42 : 1994 (2) Cur CC 675: 1994 (2) LJR 537: 1994 (3) Punj
LR 40.
1 (1942) NZLR 356.
2 (1869) 6 WW & AB 45.
3 AIR 1986 P&H 191.
4 AIR 2012 Raj 90 [LNIND 2012 RAJ 3]: 2012 (4) Civil Court C 31: 2012 (2) DMC 879.
5 Food v. Strok, (1896), p. 1.
6 Food v. Strok, (1896), p. 1. See also Parojcic v. Parojcic, (1958) I WLR 1280.
7 Mehta v. Mehta, (1945) 2 All ER 690.
8 AIR 1952 Punj 277 : (1952) 54 Punj LR 125.
9 Sulliram v. Sulliram,(1812) 2 Hag Con 238.
10 Crouch v.Wartenberg,(1922) 112 SE 234.
1 (1962), p. 224.
2 (1950), p. 71.
3 Silver v. Silver,(1958) I WLR 259.
4 H. v. H., (1954), p. 285; Messina v. Smith, (1971), p. 322.
5 AIR 1995 Mad 161 [LNIND 1995 MAD 107]: 1995 (2) DMC 486: 1995 (2) Mad LW 95.
6 AIR 1959 Cal 779 .
7 Madhusudan v. Chandrika, AIR 1975 MP 174 [LNIND 1975 MP 78]: 1975 Jab LJ 486: 1975 MPLJ 381.
8 S. Mahender v. Shalini, AIR 2014 AP 43 [LNIND 2014 AP 927]: 2014 (2) Andh LD 741: 2014 (2) Cur CC 421.
9 Jalagam Kantha Rao v. Jalagam Uma Maheswari, AIR 2014 AP 53 [LNIND 2014 AP 215]: 2014 (2) Andh LD 568:
2014 (2) DMC 503
10 Asha Srivastava v. R.K. Srivastava, AIR 1981 Del 252 : 1981 Hindu LR 653: 1981 Marri LJ 455.
11 Praveen Kumari v. Man Mohan Kumar, AIR 1984 Del 139 [LNIND 1983 DEL 182]: (1983) 2 DMC 294: 1984 HLR 201.
1 AIR 1984 P&H 417 : (1984) 86 Punj LR 615.
 Page 43 of 44
Chapter IV NULLITY OF MARRIAGE

2 AIR 2013 HP 77 [LNIND 2012 HP 137]: 2013 (129) All Ind Cas 497: 2013 (2) Sim LC 719.
3 AIR 1940 Cal 75 : 186 IC 593: (1939) 2 Cal 60.
4 See also Jude v. Jude, ILR (1945) 2 Cal 462 : AIR 1949 Cal 563 .
5 AIR 1959 MP 8 : 1958 MPLJ 356: 1958 Jab LJ 472
6 Rajaram v. Deepabai, 1973 MPLJ 626 [LNIND 1973 MP 22]: 1973 Jab LJ 662 : AIR 1974 MP 52 [LNIND 1973 MP 22];
Rukmani v. Chari, AIR 1928 Mad 616 .
7 Surjit Kumar Harichand v. Raj Kumari, AIR 1967 P&H 172 : ILR (1966) 2 P&H 370; Raghunath Gopal Daftardar v. Sau.
Vijaya Raghunath Daftardar, 73 Bom LR 840: AIR 1972 Bom 132 [LNIND 1971 BOM 30]: ILR 1972 Bom 511 [LNIND
1971 BOM 30]; Nand Kishore v. Munnibai, AIR 1979 MP 45 [LNIND 1978 MP 27]: 1979 MPLJ 105: 1979 Mat LR 143
over ruling an earlier decision in Bimla v. Sankarlal, AIR 1959 MP 8 : 1958 MPLJ 356: 1958 Jab LJ 472 and relying in
Madhusudan v. Chandrika, AIR 1975 MP 174 [LNIND 1975 MP 78]: 1975 Jab LJ 486: 1975 MPLJ 381 and Raghunath
Gopal Daftardar v. Sau. Vijaya Raghunath Daftardar, AIR 1972 Bom 132 [LNIND 1971 BOM 30]: 73 Bom LR 840:
1972 Mah LJ 110 [LNIND 1971 BOM 30]: ILR (1972) Bom 511 [LNIND 1971 BOM 30].
8 AIR 1964 Punj 359 : 66 Punj LR 204.
1 See Mayne, Hindu Law, 114.
2 AIR 1967 P&H 172 : ILR (1966) 2 P&H 370.
3 AIR 1959 MP 8 : 1958 MPLJ 356: 1958 Jab LJ 472.
4 AIR 1935 Mad 616 [LNIND 1935 MAD 128]: 69 MLJ 210: 157 Ind Cas 968.
5 AIR 1986 P&H 191.
6 Mallikarjunaiah v. H.C. Gowramma, AIR 1997 Kant 77 [LNIND 1996 KANT 360]: 1997 (2) Civ LJ 901: ILR 1997 Kant
964 : 1997 (1) Kant LJ 570; Gajara Naran Bhura v. Kanbi Kunverbai Parbat, AIR 1997 Guj 185 [LNIND 1997 GUJ 245]:
1998 (1) Cur CC 560: 1998 (1) Marri LJ 198: 1998 Mat LR 306.
1 AIR 1997 Del 94 [LNIND 1996 DEL 842]: 1996 (2) DMC 389: 1997 Marri LJ 265; also see Bindu Sharma v. Ram
Prakash Sharma, AIR 1997 All 429 [LNIND 1997 ALL 222]: 1997 All LJ 2309: 1997 (31) All LR 20 : 1997 (2) All WC
1203.
2 AIR 2014 Raj 155 : 2014 (141) All Ind Cas 822.
3 AIR 1984 P&H 417 : (1984) 86 Punj LR 615.
4 (1978) Hindu LR 521; see also Brijinder Bir Singh v. Vinod alias Parminder, AIR 1995 P&H 42 : 1994 (2) Cur CC 675:
1994 (2) LJR 537: 1994 (3) Punj LR 40.
5 Brijinder Bir Singh v. Vinod alias Parminder, AIR 1995 P&H 42 : 1994 (2) Cur CC 675: 1994 (2) LJR 537: 1994 (3) Punj
LR 40.
6 Rama Kanta v. Mohinder Laxmidas Bhandula, AIR 1996 P&H 98 : (1995) 2 HLR 315: 1996 Marri LJ 482.
7 See also Mallikarjunaiah v. H.C. Gowramma, AIR 1997 Kant 77 [LNIND 1996 KANT 360]: 1997 (2) Civ LJ 901: ILR
1997 Kant 964 : 1997 (1) Kant LJ 570.
8 Surjit Kumar Harichand v. Raj Kumari, AIR 1967 P&H 172 : ILR (1966) 2 P&H 370.
9 AIR 1988 Cal 210 [LNIND 1987 CAL 268]: (1989) 1 DMC 100: (1988) 2 HLR 546.
10 AIR 1997 Bom 175 [LNIND 1997 BOM 2]: (1997) II DMC 460: 1997 Marri LJ 444(DB).
1 AIR 1968 Pat 190 .
2 AIR 1959 Cal 778 [LNIND 1959 CAL 98].
3 AIR 1964 Punj 359 : 66 Punj LR 204.
4 AIR 1967 P&H 172 : ILR (1966) 2 P&H 370.
5 See Babui Panmato v. Ram Agya Singh, AIR 1968 Pat 190, where this view has been supported.
6 A. Premchand v. V. Padmapriya, AIR 1997 Mad 135 [LNIND 1996 MAD 934]: 1996 (2) CTC 620 [LNIND 1996 MAD
934]: 1997 (1) Mad LW 83 [LNIND 1996 MAD 934]: 1997 Mat LR 210.
1 See Amir Ali, Mohammedan Law, II, 246.
1 The Radd-ul-Muktar, II, 501.
2 See Baillie, Digest of Moohummudan Law and the Sharaya-ul-Islam, 265.
3 Amir Ali, Mohammedan Law, II, 371.
 Page 44 of 44
Chapter IV NULLITY OF MARRIAGE

4 Mulla, Principles of Mohamedan Law, (5th Edn.), 235; Wilson, para 18; Tyabji (3rd Edn.), 144.
5 Aziz Bano v. Muhammed Ibrahim, (1925) 47 All 823.
6 See also Zubeda Begum v. Vazir Mohammed, AIR 1940 Sind 145 : 190 IC 45.
7 Zubeda Begum v. Vazir Mohammed, AIR 1940 Sind 145 : 190 IC 45 (wherein before marriage the husband was
convicted of an offence of theft and was undergoing trial for enticing away another woman). Mst. Fatima v. Mian
Eusoof, AIR 1937 Rang 361 (wherein bridegroom suffered from mental and physical deformity); Shahul v. Allah
Bachayo, 34 IC 504 (wherein a girl of 10 years was married to an infant of 12 months), Sardar Begum v. Ghulam
Mohammed, 131 IC 4 (wherein the girl was married in family of prostitutes), Nawab Bibi v. Allahditta, AIR 1924 Lah 183
(girl was given in marriage to an unsuitable person with the avowed objective of getting the hand of husband’s sister in
marriage).
1 Mulka v. Mahmmed, (1873) 26 WR 26.
2 Bismilla v. Nur Mohammed, (1921) 44 All 61; Aysha v. Md. Yunus, AIR 1938 Pat 604 .
3 Amir Ali, Mohammedan Law, II, 339.
4 Khanoo v. Bhag, AIR 1935 Lah 66 ; Husani v. Jivani, AIR 1924 Lah 385 .
5 Abdul Karim v. Aminabai, ILR (1935) 59 Bom 426 : AIR 1935 Bom 308 .
6 Ghulam Mohammed v. E., AIR 1933 Lah 83 ; Muhammad Sharif v. Khuda Bakhsh, AIR 1936 Lah 683 : 164 Ind Cas
713; Abdul Karim v. Aminabai, AIR 1935 Bom 308 : ILR 59 Bom 426; Jogun Nessa Bibi v. Md. Ali, AIR 1938 Cal 71 : 42
CWN 69: (1938) 1 Cal 139; Ahmad Hussain v. Asmir Bano, AIR 1940 All 63 : (1940) All 79: 185 Ind Cas 837.
1 See Amir Ali, Mohammedan Law, II, 122.
2 Hedaya, 37.
3 Amir Ali, Mohammedan Law, II, 123.
4 Durr-ul-Muktar, 40-41.
5 Badal v. E., 19 Cal 79.
6 Hafizuddin v. Rahima Bibi, (1933) 37 CWN 104.
7 Pirmohammed v. State of Madhya Pradesh, AIR 1960 MP 24 [LNIND 1959 MP 33]: 1959 Jab LJ 570: 1960 Cr LJ 83.
8 B.R. Verma, Muslim Marriage and Dissolution, (1971), 280.
1 Mark v. Mark, (2005) Fam (A) 267: (2004) EWCA Civ 168.
2 Sahib Ali v. Jimath, (1960) 64 CWN 756.
3 Nizammuddin v. Huseni, AIR 1960 MP 212 [LNIND 1960 MP 109]: 1960 Jab LJ 520.
4 AIR 1950 Lah 45 : Pak Cas 1949 Lah 104.
1 Air Azmat v. Malmul-ulnisa, ILR (1897) 20 All 96 .
2 Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 [LNIND 1958 SC 83]: 1959 SCR 1111 [LNIND 1958 SC
83]: 1958 SCJ 1214 [LNIND 1958 SC 83].
3 Abdul v. Amina, 37 Bom LR 398: AIR 1935 Bom 308 : ILR (1935) 59 Bom 426.
1 Molly Joseph alias Nish v. George Sebastian alias Joy, (1996) 6 SCC 337 : AIR 1997 SC 109 : 1996 AIR SCW 4267:
JT 1996 (9) SC 120 : 1996 (3) SCJ 532.

End of Document
 Chapter V RESTITUTION OF CONJUGAL RIGHTS
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter V RESTITUTION OF CONJUGAL RIGHTS

While in most areas there is a diversity, it is a remarkable feature of Indian Personal laws that there is almost a
uniform provision regarding restitution of conjugal rights in all personal laws. The reason seems to be this that
Hindus and Muslims never had anything even akin to restitution of conjugal rights in their laws. It was during the Raj
that it was made available to us all—Hindus, Muslims, Christians, Parsis and others. Under the Modern Law, the
provision is identical in the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954a1. The provision is in a
slightly different language in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner
that it has been given the same meaning as under the Hindu Marriage Act, 1955 andspecial Marriage Act, 1954.
However, the provision is different under the Divorce Act, 1869, (as it was based on the then English notion of
restitution of conjugal rights) but efforts are being made to give it such an interpretation as to bring it in consonance
with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though
under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court is to be filed and not a
petition as under other laws.
PART I HISTORICAL

The remedy of restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law
made any provision for it. It came with the Raj. It is remarkable that this was the only matrimonial remedy which was
made available by the British rulers of India to all India communities under the general law. In England it came from
the Jewish law. The ecclesiastical courts enforced this remedy by excommunicating the guilty spouse. The statute
of George III substituted excommunication with imprisonment.

Like any other anachronistic remedies, the restitution of conjugal rights dates back to feudal England, where
marriage was primarily a property deal, and the wife and the children were part of man’s possessions as other
chatters. Thus, the wife was treated like a cow, who if ran away from the master’s shed could be brought back. At
that time a decree could be executed by arresting the wife. It is remarkable that many other anachronistic common
law actions were gradually abolished but they survived in matrimonial law and from English matrimonial law they
were exported to the colonies. For instance, the common law action for damages for the tort of criminal conversion
was abolished in 1857, but it survived in divorce jurisdiction in the shape of damages for adultery per se against the
co-respondent in husband’s petition for divorce on the ground of wife’s adultery. Similarly, the torts of enticement,
seduction and harbouring which were virtually primitive remedies survived for much longer time. Actions for breach
of marriage was a very fertile field for gold diggers and blackmailers. Some of these actions still survive in India and
other countries which have the ‘benefit’ of British rule. These have been abolished in England by the Law Reform
(Miscellaneous Provisions) Act, 1970.

The remedy of restitution of conjugal rights was retained in the capitalist England, though some of its stings contrary
to the concept of equality of sexes were picked out. The decree could not be executed by the arrest of the
respondent but it could be by the attachment of property. Later on this mode of execution of decree was also
abolished. The non-compliance with the decree amounted to constructing desertion on the basis of which divorce
could be obtained. The only advantage this remedy gave to the wife was that on filing the petition she could
immediately claim maintenance.

The court otherwise cannot grant specific performance of marriage, but by a decree of restitution of conjugal rights
it attempted to do so. To retain this remedy, which is rightly called worse than tyranny and worse than slavery1, in
the modern world for this little advantage is repelling. The modern English law has fortified wife’s position by making
adequate financial provisions for her and has abolished the matrimonial cause of restitution of conjugal rights2.

The remedy of restitution of conjugal rights is still retained by Indian matrimonial laws. When the provision in the
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Chapter V RESTITUTION OF CONJUGAL RIGHTS

Special Marriage Bill and the Hindu Marriage and Divorce Bill was debated in Parliament many members voiced
their opposition to it. J.B. Kriplani said: “This provision was physically undesirable, morally unwanted and
aesthetically disgusting.....“3. In Shakila Banu v. Gulam Mustafa4, a case under Muslim law, Vaid, J., very pertinently
observed:

(Restitution of conjugal right) is a relic of ancient times when slavery and quasi-slavery were regarded as natural. This is
particularly so after the Constitution of India came into force, which guarantees personal liberty and equality of status and
opportunity to men and women alike.

It may also be mentioned that under the Indian law a decree for restitution of conjugal rights can still be executed by
attachment of the respondent’s property5.

It is submitted that remedy of restitution of conjugal rights should be abolished altogether from the Indian laws and a
provision on the line of section 27 of the Matrimonial Causes Act, 1973 should be enacted in the matrimonial
statutes of all communities. Section 27 of the Matrimonial Causes Act, 1973 provides that a spouse can claim
maintenance on the ground of wilful refusal to maintain him on the part of the other spouse, without filing a petition
in any matrimonial cause.

The non-compliance of the decree of the restitution of conjugal rights for a period of one year under the Hindu
Marriage Act, 19551and under the Special Marriage Act, 19542entitles either party to obtain a decree of divorce.
Under the Parsi Marriage and Divorce Act, 1936 defendant’s non-compliance with the decree of restitution of
conjugal rights for one year entitles the plaintiff to sue for divorce. It is submitted that this provision should be
substituted by laying down that if parties are living separate from each other either under a decree of judicial
separation or under a separation agreement or otherwise for a period of one year, then either party should be
allowed to seek divorce.

Constitutional Validity of the Provision for Restitution of Conjugal Rights

The constitutional validity of the restitution of conjugal rights was challenged before the Andhra Pradesh High Court
in T. Sareetha v. T. Venkatasubbaiah3. The Court took the view that section 9 is violative of the right of privacy and
human dignity guaranteed by Article 21 of the Constitution and is, therefore, ultra vires of the Constitution.
Choudhary, J., observed “A decree of restitution of conjugal rights constitutes the grossest form of violation of an
individual’s rights to privacy. It denies woman her choice whether, when and how, her body is to become the vehicle
for the procreation of another human being... A State coercion of this nature can neither prolong nor preserve the
voluntary union of husband and wife in matrimonial home... Neither the State coercion can soften ruffled feelings
nor clear the misunderstanding between the parties.” The judge further added that section 9 did not promote any
legitimate public purpose based on any concept of social good, and thus being arbitrary, was violative of Article 14
of the Constitution. It is obvious that the judge has considered the entire question of restitution of conjugal rights
from the point of view of the woman. It seems that he has overlooked that restitution of conjugal rights can also be
claimed by the wife. This judgment has been strongly dissented to by Avadh Behari Rohatgi, J., of the Delhi High
Court in Harvinder Kaur v. Harmander Singh4, and has been overruled by the Supreme Court in Saroj Rani v.
Sudarshan Kumar Chadha5. Sabyasachi Mukherji, J., has given almost the same reasoning which was given by
Rohatgi, J. The judge takes the argument to the other extreme. According to him, “The object of the restitution
decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial
home in amity.” One wishes that a decree of restitution of conjugal rights could do that. He adds, “The remedy of
restitution aims cohabitation and consortium and not merely sexual intercourse.” One wonders how many people,
young and not very young, will accept cohabitation minus sexual intercourse. For that one will have to be a Brahma
Kumari. Rohatgi, J., thought that introduction of constitutional law in the matrimonial home was like the introduction
of a bull in a China shop which would not desist from violating it. One wonders how, as the judge thinks, in a
sensitive sphere, which is at once most intimate and delicate, the introduction of cold principles of constitutional law
will have the effect of weakening the marriage bond. Then, should we go back to the Roman concept where under
the writ of the State could not run beyond the threshold of the Roman patriarch, and within the four walls of his
home with impunity he could butcher a calf, a cow, a slave, son, daughter or wife.

It is submitted that the approach of both the judges misses one fundamental aspect of family, i.e., when home is
broken beyond all possibilities of repair, when it has become an arena of bouts between the spouses, neither the
restitution of conjugal rights nor the constitutional law can help. Such a union should be broken with maximum
fairness and minimum bitterness, distress and humiliation. The only merit, as Rohatgi, J., also notes, of the decree
 Page 3 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

of restitution of conjugal rights, is that one year’s non-compliance of the decree can lead to divorce under section
13(1A)(ii) of the Hindu Marriage Act, 1955. This is hardly a merit of the decree of restitution of conjugal rights. Then,
one should not forget that under rule 33, Order XXI of the Code of Civil Procedure, 1908, financial coercion can still
be exercised for the enforcement of the decree of restitution of conjugal rights. It is a very devious way of
introducing breakdown theory in family law. It is submitted that irretrievable breakdown of marriage should be
introduced as a basis of divorce in a straight manner and the remedy of restitution of conjugal rights should be
abolished from law.

Conjugal Rights
The High Court held that it was not denuded of its powers of granting maintenance in a proceeding for restitution of
conjugal rights, provided it is satisfied that wife was not in a position to maintain herself and contest proceedings so
brought against her by husband.1

Dissolution of Marriage
In the instant case, the wife was minor at the time of contract of marriage. Hence, after attaining age of puberty, she
repudiated the said marriage and remarried with another person. The factum of revocation or exercise of option of
puberty was proved. Therefore, the wife need not to obtain decree of dissolution of marriage and her second
marriage would be valid. The first husband is, therefore, not entitled to a decree or restitution of conjugal rights.2
PART II PROVISIONS UNDER THE INDIAN PERSONAL LAWS

Hindu Law
Section 9 of the Hindu Marriage Act, 1955 runs:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied
of the truth of the statements made in such petition and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.
Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the
burden of proving reasonable excuses shall be on the person who has withdrawn from the society.

Special Marriage Act

Section 22 of the Special Marriage Act, 1954 runs:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied
of the truth of the statements made in such petition, and that there is no legal ground why application should not be
granted, may decree restitution of conjugal rights accordingly.
Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the
burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Parsi Law
Section 36 of the Parsi Marriage and Divorce Act, 1936, runs:
 Page 4 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

Where a husband shall have deserted or without lawful cause ceased to cohabit with his wife, or where a wife shall have
deserted or without lawful cause ceased to cohabit with her husband, the party so deserted or with whom cohabitation shall
have so ceased may sue for restitution of his or her conjugal rights and the court, if satisfied of thother, either wife or
husbande truth of the allegations contained in the plaint, and that there is no just ground why relief should not be granted,
may proceed to decree such restitution of conjugal rights accordingly.

Christian Law
Sections 32 and 33 of the Divorce Act, 1869 runs:

32. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either
wife or husband may apply, by petition to the District Court 1[***], for restitution of conjugal rights, and the Court, on being
satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should
not be granted, may decree restitution of conjugal rights accordingly.
33. Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for
judicial separation or for a decree of nullity of marriage.

Muslim Law
The following is the formulation of the provision under Muslim law made by Tayabji:

Where either the husband or wife has, without lawful ground withdrawn from the society of the other, or neglected to
perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights,
may put either party on terms securing to the other the enjoyment of his or her legal rights.

In this formulation if the words “without reasonable cause” are substituted for the words “without lawful ground” the
provision comes almost at par with that of other personal laws.

When the remedy of restitution of conjugal rights was made available to Muslims, in the early period of Raj, it was
equated with specific performance of the contract. In Abdul Kadir v. Salima1, a Full Bench of the Allahabad High
Court opined that such suits are to be decided on the principles of Muslim law and not on equity, justice and good
conscience. But, the jurisdiction, whether it is equated with specified performance or not, basically relates to equity.

Under Muslim law and Parsi law a suit for restitution of conjugal rights is to be filed in a civil court.

Under all the personal laws, the requirements of the provision of restitution of conjugal rights are the following:—
(a) withdrawal by the respondent from the society of the petitioner;
(b) withdrawal is without any reasonable cause or excuse or lawful ground;
(c) there should be no other legal ground for refusal of the relief;
(d) court should be satisfied about the truth of statement made in the petition.

Withdrawal from the Society

Lawful wedlock among two persons imposes an obligation on both the spouses to cohabit with each other and to
live with each other. The expression “withdrawal from the society” means cessation of cohabitation, to bring to end
consortium. The cessation of cohabitation or bringing to an end consortium should be the voluntary act of the
respondent. The word “society” here means the same thing as cohabitation. In withdrawal from the society of the
other spouse, it is withdrawal from the totality of conjugal relationship, such as refusal to live together, refusal to
 Page 5 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

have marital intercourse, and refusal to give company and comfort. In other words, it is a total repudiation of marital
togetherness marital two-in-oneship. Desertion by one spouse of the other would amount to withdrawal from the
society. But it need not be legal desertion. In other words, for establishing withdrawal from the society, it is not
necessary to establish all elements of desertion. What is needed to be established in a petition for restitution of
conjugal rights is a total repudiation of cohabitation. When the spouses are living together mere refusal to have
marital intercourse will not amount to withdrawal from the society2.

In a petition for restitution of conjugal rights it is not required to show that the parties were cohabiting earlier. Where
spouses have not cohabited at any time after the marriage, a petition for restitution of conjugal rights would lie if the
intention not to cohabit is established1. Similarly, when a spouse refuses to cohabit with the other that is enough, it
is not necessary to show that consummation of marriage has taken place. Even where the parties are living under
the same roof, it would amount to withdrawal from the society, if the other spouse refuses to cohabit2. But rejection
by one of the marital relationship coupled with difficulties of normal affection does not amount to withdrawal from
the society3.

In our submission the withdrawal from the society of the petitioner by respondent must amount to cessation of
cohabitation in its totality. It is no defence to a petition for restitution of conjugal rights that the respondent does not
like the petitioner or does not want to live with him or that he or she is a poor person who cannot afford his spouse
or that he or she is not a proper person to be life companion4. It is also no ground for refusing husband’s petition
that he had been outcasted from the community and under the caste custom wife was not allowed to live with an
outcaste5. In Sushila Bai v. Prem Narayan6, husband virtually dumped his wife in her father’s house and thereafter
was totally unresponsive, cold and indifferent towards her. These acts and conducts were sufficient to show that the
husband had withdrawn from the society of the wife, and therefore the wife’s petition for restitution of conjugal rights
was allowed. Where wife had no reason to stay away from husband, he was entitled to restitution and maintenance
in this case was refused as the same would encourage the wife to live away from the husband.7

‘Weekend’ Marriages: Wife’s Refusal to give up the Job: Withdrawal from

the Society
A question that has come before our High Courts8 may be formulated thus: whether the wife’s refusal to give up her
job at the instance of the husband amounts to withdrawal from his society.

This question first came up before the Punjab High Court in Tirath Kaur v. Kirpal Singh9, which was a husband’s
petition for restitution of conjugal rights on the averments that his wife had left the matrimonial home to a distant
place and taken up a job there and, despite his repeated requests to resign her job and rejoin him in the
matrimonial home, she had not cared to do so. The parties were married in 1953 and the muklawa ceremony took
place in 1954. The wife’s case (which was substantially established by evidence) was that in 1958 her husband
being in a bad financial position requested her to take up some training so as to enable her to take up a job. Since
her husband was neither willing nor in a position to bear the cost of her training, she left for her father’s house
where she took training in tailoring and succeeded in obtaining a diploma in 1959. Thereafter she got a job at a
place which was at some distance from her husband’s house. To this situation, she averred, both parties agreed,
her husband used to visit her and stay at her place frequently and she also used to go to his house during holidays
and vacations, whenever she got an opportunity to do so. She further averred that she used to send some portion
of her salary regularly to her husband and her father-in-law. During all this period, and till a short while ago before
the filing of the petition, cohabitation continued between the parties. The wife alleged that her husband’s demand
for money continuously increased, which she was not in a position to meet and, therefore, the husband quarrelled
with her and demanded that she should resign her job, which she refused to do. It was established that conjugal
intercourse continued till a short while ago before the presentation of the petition and that the wife used to send
money to the husband and the father-in-law. The wife in her letters to the husband, in her pleadings, and in her oral
deposition maintained:

I want the marriage to continue, that the petitioner may come to me occasionally and I may visit him occasionally. But I am
not prepared to give up my job at any cost.

Although the wife used the word “occasionally”, it was clear from her oral deposition and tenor of the evidence that
what she meant was that whenever it would be possible (during holidays or on leave) she would go to live with her
husband and her husband, too, could do the same.
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Chapter V RESTITUTION OF CONJUGAL RIGHTS

Tirath Kaur took up the job after six years of married life, and much was made of the financial stringency of the
husband.

It was the same story in the Madhya Pradesh case, Gaya Prasad v. Bhagwati1, wherein the wife averred that on
account of adverse financial circumstances of the husband she had to take up the job of a gram sevika with his
permission to “carve out a decent living”. And, once again the husband demanded that she should give up her job
and join him. This was, more or less, the story of Surinder Kaur v. Gurdeep Singh2. The slight variation is that here
the wife, who took up the employment after the marriage, was employed at the place where the parties have set up
the matrimonial home, but later on resigned it and took up another job at a different place, about one hundred miles
away from the matrimonial home. Further, the wife in her deposition categorically said that she was not willing to
join her husband under any circumstances and under any conditions since she apprehended danger to her life from
him. It seems that in this case relationship between the parties was strained beyond redemption—a clear case of
irretrievable breakdown of marriage. It is the same story in Pravinaben v. Sureshbhai Tribhovan Arya,1 wherein the
wife took the job after the marriage and with the full consent of the husband; the parties were posted at different
places; cohabitation took place between the parties the same way; the husband went sometimes to the wife’s place,
and vice versa. Ultimately the husband changed his mind, wanted his wife to resign the job and join him, and on her
refusal to do so, filed the petition for restitution of conjugal rights. It is clear from the facts of the case that the wife
took up the job at a place away from the husband’s place of residence with the consent of the husband.

In N.R. Radhakrishnan v. N. Dhanalakshmi2, both the husband and the wife were gainfully employed before
marriage; the husband as a driver in the State Transport Undertaking at Madras and wife as a school Mistress at
Madras in a school conducted by the Madras Corporation. Some time after the marriage, the husband got himself
transferred to Pondicherry and then to Krishnagiri. It seems that after the marriage some trivial misunderstanding
developed between the parties. While at Krishnagiri the husband wanted the wife to resign her job and join him
there but she refused to do so. She averred that her husband treated her with cruelty soon after the marriage, and
that he got himself transferred to tease and spite on her. As in other cases, here too, the income of the husband
was meagre; he earned an income of Rs. 200 per month. It seems that the sensible course for the parties to follow
was, as Maharajan, J., put it: “each may visit to other in his or her place at weekends, and come away after a day’s
stay at the place of his or her avocation”3.

In Mirchumal v. Devi Bai,4 both the parties were in employment and posted at different places at the time of the
marriage. During holidays and vacations the wife used to visit and live with her husband. This way, their life
continued for about four years when the wife resigned her job and joined her husband. After about a year the wife
again took up a job at a place away from her husband’s home. For about six months the wife did not join her
husband and, consequently, he filed a petition for restitution of conjugal rights. In her pleadings and in her oral
deposition before the court, the wife made the same statement which Tirath Kaur made, viz., she was prepared to
go and reside with her husband during vacations, and holidays and the husband, too, was free to do the same.

In Kailash Wati v. Ayodhia Parkash5, both the parties were in employment at the time of the marriage, as village
level teachers; the wife at village Bilga and the husband at village Kot Ise Khan. Soon after the marriage, the wife
was also transferred to Kot Ise Khan and, thus, the parties lived together there for about nine months. Then the wife
was transferred back to Bilga (the husband alleged that she manoeuvred the transfer). After about seven years of
married life thus lived, the husband asked the wife to resign her job, and on her refusal to do so, he filed the petition
for restitution of conjugal rights. The wife, categorically, said that she was prepared to honour her matrimonial
obligations, but was not prepared to resign her job. She made the same suggestion which Tirath Kaur made.

One of the common feature of these cases is that the parties belonged to lower middle class and the husband’s
earning was not enough to carve out a decent living. Maharajan, J., in N.R. Radhakrishnan v. N. Dhanalakshmi1,
noted this fact

It is not as if the husband is a well-to-do man who can afford to maintain his wife and daughter out of the meagre sum of
Rs. 200 which he earns as a driver.

It is submitted that irrespective of the fact whether the husband belongs to an affluent or poor class the issue should
be looked at in a wider perspective, as to whether the husband has the right to dictate to the wife that she should
resign her job whenever he wants her to do so. In the aforesaid cases, the question came up in circumstances
where the husband and wife were posted at different places. It is submitted that the question can come up even
when the parties are posted at the same place. The husband may complain that the wife’s job interferes in the
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performance of her duties of maintaining the matrimonial home. This may be much more so, when the working
hours of the parties are different.

The question arising in these cases may arise in three different situations. To use the language of Sandhawalia, J.,
the first one is where the husband marries a woman already in a public or private job2. The second situation is
where a husband either encourages or allows, the wife to take up employment after marriage3. The third situation is
where the wife accepts a job away from the matrimonial home against the wishes of the husband4. There may yet
be a fourth situation, viz., parties may, by mutual arrangement, agree to take jobs and live at different places. In the
words of Sandhawalia, J.:

Indeed in the peculiar circumstances of the work-a-day life of modern times such a situation arises quite often and perhaps
is likely to arise with greater frequency in the future. So long as it is consensual such an arrangement may indeed be to the
mutual benefit of both the spouses... To emphasise the point as long as the matter is consensual the spouses may not only
live separately but may even live in separate countries without in any way either jeopardising their marriage or infringing
their legal duties to each other5.

It is submitted that it is a well-established position in matrimonial law that parties by mutual arrangement or
agreement may agree to anything; the most common illustration of this is the separation agreement. So long as the
matter remains with the parties, no one can do anything, not even a court of law, but, as is well known, once the
parties begin disagreeing, even the separation agreement may not be enforceable; the court has ample power to go
beyond the separation agreement, and refuse to enforce it into to, or some of its terms.

The three situations stated above do arise when both the spouses are employed, but should the answer be different
in these situations? Sandhawalia, J., thinks that answers would be different. It is submitted that looked at on a wider
canvas, the answer to the questions should not materially vary in all these three situations. These situations are
being examined here.

The cases, which hold that the wife’s refusal to resign her job at the instance of the husband amounts to withdrawal
from his society, entitling the husband to a decree of restitution of conjugal rights, base their arguments on two
counts:
(a) The Hindu wife has the duty to submit herself obediently to her husband and to remain under his roof and
protection. This is advanced as a special argument based on the special duty of the Hindu wife as a
dharmapatni under the special concept of Hindu Marriage. (On this logic, this argument will not be valid in
the case of a non-Hindu wife.)
(b) The husband has the right to choose and establish the matrimonial home and it is the marital obligation of
the wife to accept such determination and live in the matrimonial home wherever it may be established.
This is surprisingly, advanced as a modernistic argument, as a universal argument, applicable to all wives,
all over the civilized world.

In Tirath Kaur v. Kirpal Singh1, Grover, J., after quoting from Mulla, “A wife’s first duty to her husband is submit
herself obediently to his authority, and to remain under his roof and protection...“2 observed:

I have not been shown any rule or principle of law which would justify the court in holding that the wife be allowed to
virtually withdraw herself from the society of the husband in this manner.

In Gaya Prasad v. Bhagwati3, Bhargava, J., of the Madhya Pradesh High Court has put this argument more neatly
thus:

According to the ordinary notions of Hindu society, the wife is expected to perform the marital obligations at her husband’s
residence. She can accept service at a different place but not so as to clash with the husband’s marital rights which she is
duty-bound to render. It is, therefore, plain that there could only be an arrangement for her staying separately for continuing
her service by mutual consent and concurrence of both the parties, but she could not impose her unilateral decision on the
husband by merely stating that she had no objection to allow the husband to live with her at the place where she has
accepted the service.

The learned judge further said that it cannot be held to be sufficient reason to deny the wife’s society to the
husband merely on the ground that he has small income and she, if allowed to serve at a place away from the
marital home, can substantially augment the family income. “Nothing in Hindu law warrants the adoption of such a
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course”1. In fact, Bhragava, J., was of the opinion that such a conduct on the part of the wife amounted to desertion:
animus deserdendi was found in the wife’s assertion that she would not resign her job and return to the husband’s
home as desired by him.

In Surinder Kaur v. Gurdeep Singh2, Verma, J., of the Punjab and Haryana High Court takes this argument to its
logical end. He builds it up on the assumption that according to Hindu law marriage is a holy union and the
relationship between husband and wife imposes upon each other certain marital duties and gives each of them
certain marital rights. Further, the marriage imposes a duty on the husband to protect his wife, to give her a home,
to provide her with comforts and necessities of life within his means and treat her nicely; correspondingly, it enjoins
on the wife the duty of attendance, obedience to, and veneration for, the husband and to live with him wherever he
chooses to reside. This means that the wife, by entering into marriage, places herself under the obligation to reside
with her husband wherever he may provide her with a matrimonial home. If a wife takes up a job at a place different
from the matrimonial home, then, the learned judge holds, she places herself in a situation which renders her
unable to discharge her marital duties imposed upon her by marriage towards her husband. Thus, a wife who
accepts a job without the consent of her husband at a place different from the matrimonial home provided by him, or
a wife who refuses to resign her job at the instance of her husband, is the wife who has withdrawn from his society
without any reasonable excuse.

Sandhawalia, J., further advances this thought and examines in detail all aspects of the matter. He builds up his
argument on the premise that the Hindu husband has the obligation to maintain his wife. In fact, every husband,
Hindu as well as non-Hindu has this obligation. This is not special to Hindu husbands. The learned judge first
quotes the provisions of section 125 of the Code of Criminal Procedure, 1973 (section 488 of the Code of Criminal
Procedure, 1898) which lays down that if any person having sufficient means neglects or refuses to maintain his
wife, who is unable to maintain herself (emphasis authors’), a Magistrate of the first class may order such person to
make a monthly allowance for her maintenance at such monthly rate not exceeding five hundred rupees in the
whole. The amount so fixed is recoverable by issuing a warrant for levying fines and the husband is further liable to
imprisonment for a term which may extend to one month for each month’s allowance or part thereof which remains
unpaid until he complies with the order3. (But this provision is available to all wives, Hindu and non-Hindus.) On this
provision the learned judge comments:

It is clear from the provisions of section 125 of the Code that apart from the rules of Hindu law, a husband is obliged to
maintain his wife and family on pain of stringent processes at par with those applicable in the field of criminal law1.

It is submitted that this provision in the Code of 1898 was enacted with a view to preventing vagrancy and,
therefore, it has limited application. Further, the provisions will apply only in the case of a wife unable to maintain
herself and the amount of maintenance is limited to Rs. 500 per month, howsoever affluent the husband may be. In
a case where a wife is employed (and here the concern is with such a wife), this provision has hardly any
relevance.

Sandhawalia, J., then quotes the provisions of sections 18, 19, 20 and 22 of the Hindu Adoptions and Maintenance
Act, 1956. Section 18 imposes a personal obligation (and an absolute obligation) on a person to maintain his wife
during her life provided she lives with him [this is the natural implication from subsection (2) of section 18 which
specifies certain cases in which the wife will not lose her right of maintenance even if she lives separate from him].
Section 20 imposes a similar obligation in respect of one’s (it should be noticed, which appears to have been
missed by the learned judge, that this obligation is of the father as well as of the mother) minor children, legitimate
as well as illegitimate, and aged and infirm parents. Again not merely sons have their obligation, the daughters too
have their obligation. Section 19 imposes an obligation on the father-in-law to maintain his widowed daughter-in-
law. But this is a very limited obligation. Section 22 imposes an obligation on an heir to maintain the dependents of
a person from whom he or she has inherited the property. This is also a very limited obligation2. From these
provisions the learned judge draws the following inference:—

It is under statutory provisions that Hindu Law imposes clear and sometime burden some obligation (looked at broadly, all
obligations are burdensome, otherwise it is a very pleasant duty to maintain one’s own ones) on a Hindu male. He is bound
to maintain his wife during her lifetime. Equally, he must maintain his minor children and his obligation is irrespective of the
fact whether he possesses any property or not. This 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 being unable to maintain themselves...As against this, the thing is that the Hindu
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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 family1.

It is submitted that this statement is misleading for more than one reason. First, the obligation to maintain one’s
children and aged or infirm parents is both that of a Hindu male as well as of a Hindu female. If a female is in a
better “financial circumstance” it is she who will be required to maintain them. Secondly, Hindu male is required to
maintain his wife who lives separately from him (on a justifiable cause) only if she is unable to maintain herself. It is
true that the wife has no obligation to maintain her husband normally, but if a petition in a matrimonial cause is filed
by either party, the husband can as much claim maintenance from his wife as the wife can claim it from him2.
Further, like the wife, the husband can also claim permanent alimony and maintenance after a decree in a
matrimonial cause is passed3. But this is so only under the Hindu Marriage Act, 1955 and the Parsi Marriage and
Divorce Act, 1936. No other husband under any Indian personal law has this right.

It is very interesting to note that right from the Tirath Kaur v. Kirpal Singh4 to the Kailash Wati v. Ayodhia Prakash5,
the High Courts, which hold the wife’s refusal to resign her job amounts to withdrawal from the husband’s society,
project this as a typical Hindu theme and make much of special obligation of the Hindu wife to live under the roof
and protection of the husband. The learned judges in these cases have found Mulla’s formulation a very convenient
whip to beat the wife. Paragraph 442 quoted from Mulla runs as under:

The wife is bound to live with her husband and to submit herself to his authority... (emphasis authors’).

Paragraph 555 runs thus:

A wife’s first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and
protection....6 (emphasis authors’)

It is evident that the aforesaid propositions were formulated before the codification of the law of maintenance, and
have been allowed to remain in the book in successive editions. The question whether these rules are inconsistent
with the Hindu Marriage Act, 1955 or thehindu Adoptions and Maintenance Act, 1956 was raised feebly before the
Full Bench of the Punjab and Haryana High Court in the Kailash Wati v. Ayodhia Prakash7. The Full Bench felt that
these were not. Obviously, they are outmoded, and a thing which is outmoded need not be given effect to if one
were to give a progressive interpretation to law (as distinguished from mechanical). Probably, not very sure of his
ground, Sandhawalia, J., clinched the issue by saying “in any case within this jurisdiction the matter is concluded by
the Full Bench judgment”1 in Ram Prakash v. Savitri Devi2 and he has extensively quoted from this decision. The
most relevant passage quoted by him is:

According to Hindu Law, marriage is a holy union for the performance of religious duties. The relationship between husband
and wife imposes upon each of them certain martial duties and gives each of them certain legal marital rights. The marital
rights and duties are absolutely fixed by law...3 (Emphasis added)

The other passage runs, “...it is the duty of the wife to live with her husband wherever he may choose to reside and
to fulfil her duties in her husband’s home...”3

This was a judgment rendered in 1957, just two years after the passing of the Hindu Marriage Act, 1955 and
reported in 1958. Before the passing of the aforesaid enactment it was fashionable for judges and scholars alike to
vouchsafe by the “holy union” that Hindu marriage was regarded to be, and to talk of the wife’s sacred duty to live
under the roof and protection of the husband. But what intrigues one is that these clinches are still repeated. With
the full recognition of the principle of dissolubility, one wonders, how much holy or sacramental Hindu marriage has
really remained. Sometimes one is led to talk in superlatives to emphasise a point, but it is submitted that these
propositions have never been so holy or hallowed, nor were the rules so absolute as have been made out at any
time in Hindu law, and they are much less in our modern times when we not only talk of equality of sexes, but
enshrine that principle in our constitutional document.

In all societies which have patriarchal system, this obligation of the wife to live under the roof of the husband has
always existed, and there is nothing particular about Hindus. It is always possible to quote some texts which over-
emphasise this obligation. Manu4, Yajnavalkya5 and Vishnu6 enjoined that the wife should obey her lord (but this
has been laid down in all systems) so long as he lives, and to remain faithful to his memory after his death. The
Hindu sages have also exhorted her that she should worship her husband as a God even though he happens to be
a man of bad character, devoid of all good qualities7Manu, whose faith was orthodoxy, ordained that a wife should
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Chapter V RESTITUTION OF CONJUGAL RIGHTS

always subject herself to his authority4 and should never do anything that might displease him8. It is narrated in the
great epic Mahabharata that on Lord Krishna’s wife, Satyabhama, asking Draupadi, “How was she able to rule the
sons of Pandu?”, she replied, “by obedience and devotion”1. Notions of obedience and devotion to the husband are
not novel to the Hindus. All ancient systems laid it down, and most modern systems carry them over. But in over
emphasising these texts, it is often forgotten or ignored that the Hindu sages also recognized that in certain
circumstances the wife could give up her husband, and take another. According to Katyayana, “a lunatic, one guilty
of grave sin, a leper, an impotent, a sagotra, one bereft of eye-sight and hearing or epileptic” are the persons to be
avoided for marriage, and if gift of the daughter is made to such persons, the gift would be null and void2. Vasistha3,
Narada4, and Kautilya5also expressed similar views. It was on the basis of these texts that initially the law of the
married women’s right to separate residence and maintenance was developed. It was codified in 1946 by the Hindu
Married Women’s Right to Separate Residence and Maintenance Act. The provisions of this statute are re-enacted
in section 18(2) of the Hindu Adoptions and Maintenance Act, 1956. Thus, the obligation of the Hindu wife to live
“under the roof and protection” of her husband has never been that absolute as had been made out in these cases.

Paragraph 555 in Mulla’s Hindu Law quoted by these judges occurs in the chapter on maintenance and specifies
the limits of the husband’s obligation to provide maintenance to the wife. It is submitted that the paragraph is so
much out of the context that by no stretch of imagination could it be marshalled for the proposition that if the wife
lives, on account of the requirement of her employment, at a place different from the husband’s house and does not
give up her job whenever her husband wants her to do so, it would amount to withdrawal from his society within the
meaning of section 9 of the Hindu Marriage Act, 1955, entitling the husband to a decree of restitution of conjugal
rights. Bhargava, J., of the Madhya Pradesh High Court seems to have been aware of this weakness in the
reasoning when he supplied the following argument in favour of wife: the best that could be urged for her is that the
proposition that a husband alone has a right to say where the marital home should be, is not a correct proposition of
law though ordinarily the fact that the husband is the wage-earner may give him the right to choose the home. He
further advanced the argument thus: there were differences between the couple on the choosing of the marital
home and, therefore, the matter should have been decided by them by their mutual agreement, by give and take,
and not by the imposition of the will of one over the other and that, as the attitude of the husband in the
circumstances of the case was unreasonable and that this fact alone led to separation, the husband who was
responsible for producing the separation by reason of his unreasonable behaviour should be denied the decree of
restitution of conjugal rights and should actually be held guilty of desertion6.

The argument of the husband’s right to choose and establish the matrimonial home and the wife’s obligation to live
in it has been advanced in more details and more forcefully by Sandhawalia, J., who observed:

To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilized
societies. It is indeed around it that generally the marriage revolves. The home epitomizes the finer nuances of the marital
status. The bundle of indefinable rights and duties which bind husband and the wife can perhaps be best understood only in
the context of their living together in the marital home. The significance of the conjugal home in the marriage tie is indeed
so patent that it would perhaps be wasteful to elaborate the same at any length. Indeed the marital status and the conjugal
home has been almost used as interchangeable terms1.

After equating “marital status” with “conjugal home”2, the learned judge proceeds to say that from the concept of
matrimonial home arises the concept of consortium. It is well known that consortium is a feudal, archaic concept
arising out of the notion that wife is like a chattel of her husband. Then he observed:

The origin of the husband’s right of action seems to have that he was regarded as having a quasi-proprietary right, and I
think that it included a right to his wife’s society as well as to her services. I can see no sign of any difference in quality
between his right to her assistance and his right to her society, and indeed it would be difficult to say where in fact
assistance ends and society begins, either today or in the middle ages. No doubt her services and assistance had an
additional value because her comfort and society, went with them. I do not think that consortium was an abstraction. It
seems to me rather to be a name for what the husband enjoys by virtue of a bundle of rights some hardly capable of
precise definition3.

(Emphasis added)

Conscious of the archaic character of consortium, the learned judge added:

However, it is worth highlighting that originally consortium was used to determine a right which the law recognized in the
husband growing out of the marital union to have access to the companionship and society of his wife. But with the
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passage of time, the concept of consortium has definitely assumed a distinct and firm footing of mutuality. It is no longer
merely husband’s right to the companionship or the society of the wife but equally the wife’s right to the companionship and
society of the husband4.

From these premises, the learned judge posed the question: who has the right to determine the matrimonial home?
He answered the question in almost unequivocal terms that it was the husband who had the right to determine the
matrimonial home. That once this was the position in absolute terms one might concede. But that this is not so in
modern law has been accepted in many jurisdictions, including the English. In 1940, Colins, J., said that the rights
of a husband, as they used to be, have been considerably circumscribed in favour of the wife without very much, if
any, curtailment of his obligations, yet that point has not been reached where the matrimonial home is to be, and, if
the husband says that he wants to live in such and place, then, assuming always that he is not doing that to spite
his wife, and that the accommodation is of a kind which one would expect a man in his position to occupy, the wife
is under the painful necessity of sharing that home with him1. In this case, on account of the wife’s mismanagement
of the house-hold and her refusal to cook for her husband, the husband sold the furniture and moved to a boarding
house. After shifting there, the husband made repeated offers to his wife to induce her to live with him at the
boarding house, but she refused to do so on the ground that she did not like the locality and the landlady. The
husband filed a petition for divorce on the ground of his wife’s desertion, and she in her answer denied desertion
and alleged that on shifting from the matrimonial home to the boarding house, he had deserted her. The court held
that assuming the husband to have been guilty of desertion, he had put an end to it by his subsequent offer of
alternative accommodation which he made in good faith, and the wife, under those circumstances was bound to
accept the accommodation offered, and had, by her refusal, been guilty of desertion. On this case the editorial note
runs:

The right of the husband to choose the place where the matrimonial home shall be is affirmed. In making such a choice, the
husband must not act unreasonably, but, subject to this, the refusal of the wife to live with him in the home chosen by him
will be desertion on her part2.

It is submitted that there is nothing in the case for the formulation of this proposition.

In Dunn v. Dunn3, a husband who was a seaman petitioned for divorce on the ground of his wife’s desertion without
cause on the averment that when he had returned from long service overseas he had requested her to leave her
present inland matrimonial home and stay with him for an unspecified period at a port, where he was stationed, and
where he had taken accommodation for his wife and family, and that she has refused and persisted in her refusal to
his request. The wife in reply averred that she suffered from deafness of a degree, that she was very hard of
hearing and that she had throughout lived at Morpeth (with the exception of one occasion), where her husband had
bought a house and established the matrimonial home. The husband had been out overseas on several occasions
and sometimes for a fairly long duration. On returning in 1941 from his China trip there was some quarrel about a
sum of 80 dollars which the wife was able to save out of his allotment. The parties cohabited at Morpeth till
December, 1941. The husband who was posted at Barrow-in-Furness, requested his wife to join him there.
However, she refused to go there for several reasons one of which was that on account of severe deafness there
was great difficulty for her sharing premises with another tenant or landlord. In this case, inter alia, the husband
argued:

The husband has the right to decide where the spouses should live; and if the wife refused to live at that place she was
guilty of desertion, unless she could prove that she has just cause for her refusal1.

Lord Denning, L.J., said that the decisive matter in the case was that, throughout, the matrimonial home had been
at Morpeth, and the wife had always been ready and willing to receive her husband there whenever he could go
there, and that was the place where the family were. Referring to the observations of Henn-Collins, J., in Mansey v.
Mansey2, the learned Judge said he did not intend to lay down the proposition that the husband had the right to
decide as to where the matrimonial home should be; at best it is a proposition of ordinary good sense arising from
the fact that he is usually the wage earner and has to live near his work. It is not a proposition which applies to all
cases. He then observed:

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 the one over that of the other. Each is
entitled to an equal voice in the ordering of the affairs which are their common 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. If such an
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arrangement is frustrated by the unreasonableness of one or the other and this leads to a separation between them, then
the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion.

Sandhawalia, J., has discussed both the above cases, and, on the observations of Denning, L.J., he says:

With great deference and diffidence, I find it necessary to take a contrary view, as the view expressed by Denning, L.J.,
seems to give a clear go by to a legal proposition which appears to be well-settled.

After quoting extensively from the Corpus Juris Secondum1 he said that, “American Reports are replete with
decisions on the point that the ultimate choice of the matrimonial home lies with the husband who normally is the
bread-winner of the family and in law is burdened with the right [obligation?] to maintain his wife and children,”
though he added that “with the limitations of research into the American case law in India, it appears to me that
there is virtual unanimity in American law about the right of the husband to determine the locus of the matrimonial
home, provided he acts in good faith”.

Sandhawalia, J., then quotes Lord Merriman’s criticism of Lord Denning, L.J’s view in Simpson v. Simpson2.
However, that criticism is in a different context. It may also be added that in Dunn v. Dunn3, Pilcher, J., agreeing
with Denning, L.J., opined that in the case of difference of opinion between the spouses as to the place of the
matrimonial home, someone must have the casting vote. Sandhawalia, J., agreeing with this view, holds that the
husband has the casting vote.

It is interesting to note that the passage that Sandhawalia, J., has quoted from the Corpus Juris Secondum relates
to domicile4. That passage runs:

It is the husband’s right to choose and establish the matrimonial domicile, and in general it is the duty of the wife to submit
to the determination of the husband and to follow him to the domicile of his choice. On a change of domicile by the
husband, it is the duty of the wife to follow him to the new domicile5.

The next sentence is, “Nevertheless the right of the husband to fix the matrimonial domicile is not absolute”5. The
Corpus Juris Secundum was published in 1940. In most American States it is an established proposition now that
the wife can have her own separate domicile, independently of the husband. Lord Denning called this rule of unity,
“the last barbarous relic of a wife’s servitude”6 and Simon, P. called it a “completely outmoded legal concept”7. The
English statute, the Domicile and Matrimonial Proceedings Act, 1973, categorically lays down that the wife may
have her own independent domicile8. It is submitted that in respect of desertion as giving cause of divorce or in
respect of “withdrawal from the society” as giving cause for restitution of conjugal rights, the matrimonial domicile
has hardly any relevance. For instance, let us assume that the domicile of a husband at the time of marriage is New
York and assume further that the wife acquired the domicile of her husband on marriage. The parties, soon after
marriage leave New York for London and set up their matrimonial home there, the husband retaining his domicile of
origin. The parties thus live in London for ten years, then the wife leaves London and comes back to New York with
the intention of permanently forsaking her husband. She has come back to her matrimonial domicile. Will she not be
guilty of desertion? It is submitted that she will be. At one time in English private international law there was a
tendency to link domicile with permanent home1 but that is no longer so2. It may be added that the concept of
matrimonial domicile has been propounded by Cheshire3 and in some judicial decisions4 as a determination of the
material validity of marriage in conflict of laws cases5. It is submitted that the matrimonial domicile is not at all
relevant for purposes of determining desertion or withdrawal from the society.

It is submitted that the matrimonial home has its own importance in the conjugal relationship but much more
important is cohabitation. After all, matrimonial home is a place where parties live (in case they have established a
living place), but cohabitation is the sum total of conjugal relationship, sum total of husband-wife togetherness, sum
total of two-in-one relationship, which the marriage is. In view of this, desertion or withdrawal from the society (both
expressions are put together not merely because all the cases that Sandhawalia, J., had quoted in support of his
thesis relate to desertion, but also because, in the present context, both expressions have the same connotation)
means consensual or voluntary withdrawal from cohabitation by the respondent. What is submitted is that
cohabitation is to be understood not merely in the context of matrimonial home, but in the context of total
relationship of husband and wife. It is possible that a couple may not have a matrimonial home (either because they
have not yet established it or because they have no means to establish one), yet they may cohabit, and continue to
cohabit for several years, for their entire lifetime. In the case of parties who have no matrimonial home and are yet
cohabiting, if one of them withdraws from the society of the other will it not amount to withdrawal just because the
parties have no matrimonial home?
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This takes us to the meaning of cohabitation. “Cohabitation includes the mutual rights to each other’s society,
companionship, and affection6. Cohabitation means living together as husband and wife7. Lord Goddard, L.J.,
observed:

Cohabitation implies a state of affairs very different from that of mere residence. It must mean that the wife is acting as wife
and has kept her status and position as wife. I am not using the word “status” in a very technical sense. What is meant by
cohabitation is that the wife has kept her position as wife; is rendering wifely services to him and is acknowledged by the
husband to be his wife. Of course the parties can cohabit, without there being sexual intercourse between them; although
as a rule there is such intercourse if the parties are competent or of an age when sexual intercourse is likely to take place,
but there may be cohabitation without sexual intercourse. Husband and wife cohabit by living together as husband and wife,
the husband behaving as a husband and the wife behaving as a wife, doing housewifely duties1.

In almost all the cases reviewed above the cohabitation has taken place till a few days before the petition was filed.
For instance in the Tirath Kaur v. Kripal Singh,2 it was conclusively established that sexual intercourse did take
place between the parties a few days before the filing of the petition—in August 1960; the same was true in Gaya
Prasad v. Bhagwati3 and Praveenaben v. Sureshbhai.4 That parties need not cohabit under the same roof or in the
matrimonial home has been laid down in a series of English cases. There is no proposition if law which lays down
that cohabitation between husband and wife can take place only in the matrimonial home. Two illustrative English
cases are reviewed here.

In Bradshaw v. Bradshaw,5 a married female domestic servant who never lived with her husband under the same
roof, was visited from time to time by him at the house of her mistress (i.e., where the wife was employed), and a
child was born of the marriage. Subsequently, the husband refused to receive the wife in the house where he
lodged and also refused to give her any help towards her maintenance. The wife applied for maintenance under the
Summary Jurisdiction (Married Women) Act, 1895. Under the Act, inter alia, it is essential that there should have
been cohabitation between the parties which is broken by the act of the husband. In this case the question,
therefore, was: did the parties cohabit? Holding that while the husband was visiting the wife at her mistress’s house
the parties were cohabiting, F.H. Jeune, P., observed:

It is true that there cannot be desertion of a wife by a husband unless the cohabitation is broken by some act of desertion.
But cohabitation does not necessarily imply that a husband and wife are living together physically under the same roof; if
that were so, there would be large classes of persons to whom the term could have no application: married domestic
servants, for example, who cannot live day and night under the same roof, but yet may cohabit together in the wider sense
of the term6.

In Ambercomble v. Ambercomble1, the parties were living under a separation order till 1943 when the husband, with
a view to ending the separation, wrote a letter to his wife, and the wife responded positively. The husband, who was
a doctor, was engaged in various appointments as a locum tenens. Pursuant to the correspondence that the parties
exchanged, the first meeting between them took place at Preston, the second meeting was at Manchester and from
there she went to Swinton and looked after the house in which the husband lived at that time. On all these
occasions sexual intercourse took place, but the parties did not spend the night together. On two subsequent
occasions the parties stayed overnight at one Mrs. R’s house, and over one weekend later stayed together at a
hotel in London. Thereafter, they went to Eastleigh to see about a possible appointment for the husband as a locum
tenens, and on this occasion also the wife inspected the house where they proposed to stay. Later on differences
arose between the parties, and the wife claimed maintenance under the original order. Under the Summary
Jurisdiction (Separation and Maintenance) Act, 1925 the order of maintenance and separation terminates if the wife
resumes cohabitation. Thus, in the present case the question before the court was: did the parties resumes
cohabitation? It was argued on the side of the wife that she was willing for the cohabitation to take place “provided
she was satisfied that the husband would conduct himself towards her in a normal manner and that there would be
no further acts of cruelty by him.” Lord Merriman, P., said these words mean “that she was willing for a resumption
of cohabitation to take place with the condition subsequent that, if the husband should not conduct himself properly
and should be guilty of acts of cruelty, she would be at liberty and would be justified in parting from him2. Then, he
posed the question:

I find some difficulty in seeing how it can properly be said that, if there is resumption of cohabitation, the nature of what is
done by way of resumption of cohabitation can be altered by a conditions subsequent?1

The learned Judge observed:

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Whether one talks about resumption of cohabitation or condonation, any wife who has suffered an injury effects a
reconciliation with the implied condition that there shall be no recurrence of the bad behaviour; but that does not change the
nature of the reconciliation. It does not change the nature of a resumption of cohabitation, whichever aspect of the matter
one chooses to look at; and, if one could attach a condition subsequent in such a way as to change the nature of the thing
done, one would get, as I say, this absurd position, that, where there is a complete reconciliation subject only to the
condition subsequent, the parties might live together for 5 years, have 3 more children, and then, because some act of
cruelty or adultery, or whatever it is, occurs which can be complained of by the wife, she is then entitled to say there never
has been a resumption of cohabitation because the condition subsequent was operating the whole time. That seems to me
to reduce the whole thing to an absurdity. Either they did or they did not resume cohabitation2.

The learned Judge was categorical that resumption of cohabitation can take place without establishing a
matrimonial home. In this case the husband was a doctor who ex concessis has no settled abode. He was at all
material time earning his living by taking local and temporary employment as a locum tenens wherever his services
might be required; and even in the short time with which we are concerned here, a span of less than three months,
we know he was employed at Preston and Swinton, and apparently was in negotiation for yet another employment
in the south of England. At the same time, in the entire relationship of this period no one can doubt that the wife was
as serious in the resumption of cohabitation as any wife could be. On these facts, Lord Merriman, P., said:

It seems to me to be impossible no to hold that, at the very latest when this couple went up to London for what I have
called, and what nobody can doubt was intended to be, their second honeymoon, complete resumption of cohabitation is
the only possible inference to be drawn from the facts. I should be prepared, if necessary, to hold that it occurred much
earlier, but then, at any rate, it seems to me to be impossible not to hold that they have resumed cohabitation1.

It is submitted that if that will not be the meaning of cohabitation, then there would be large classes of persons—
husbands and wives—who could not be said to have cohabited at all, despite the fact that they had lived happily for
years together, despite the fact that they had begotten children. For instance, it has been seen that in the Bradshaw
v. Bradshaw2 and Ambercomble v. Ambercomble3, such were the circumstances of the parties that they could not
establish a matrimonial home, yet, without a shade of doubt, they cohabited together. There are a number of other
classes of persons who cannot establish a matrimonial home, yet they cohabit. Thus take the case of travelling
agents, railway guards, conductors, drivers, merchants and traders who trade in places far away from their wives,
or many of our Class IV employees who serve in city offices and keep their wives and children at their parental
home4. In these compelling cases, there are two homes, one where the wife lives and the other where the husband
lives. If we insist on using the term “matrimonial home,” then in these cases it is the place where wife lives is the
matrimonial home, as it is here that the husband from time to time joins her and cohabits with her. As such, will a
court of law permit their wives to say that since their husbands do not live in the matrimonial home, they had
withdrawn from their society and a decree of restitution should be granted in their favour?

Thus, it is submitted, “withdrawal from the society” to amount to a ground for restitution of conjugal rights under
section 9 of the Hindu Marriage Act, 1955 is not a withdrawal from a place, but from a state of things. This comes
into clear relief if we look at the concept of constructive desertion5.

It is submitted that it is in this light that the question of “withdrawal from the society” should be looked at in those
cases where the husband and wife are both gainfully employed. It may be recalled that Sandhawalia, J., had
adverted three situations in which this question is likely to arise. These situations are:
(i) when the husband either encourages or allows the wife to take up a job after the marriage, but
subsequently asks her to give it up;
(ii) when the husband married a woman who was already in the job, and asks her to resign it subsequently;
and
(iii) where the wife takes up a job after the marriage against the wishes of the husband, and the husband asks
her to relinquish it.

Most of the cases that have come up in the court fall under the former two categories.

Case of Tirath Kaur, Gaya Prasad, Praveenaben and Surinder Kaur fall under the first category, while the cases of
Radhakrishnan and Kailash Wati fall under the second category. The Mirchumal case falls under the third category.
On the former situation the learned judge posed the question thus: “Does he by doing so abandon his legal right of
having his wife live within the matrimonial home?” He answers:
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I would, however, firmly opine that no such necessary inference arises from the mere fact of a husband at one or the other
stage having consented to his wife’s taking employment that thereafter he would not be entitled to claim her society and
companionship within the matrimonial home1.

On the second situation the learned Judge posed the question thus: Does he by marrying an employed woman give
up his right to claim a common matrimonial home with his wife? He answered the question by saying that far from
there being any implicit waiver of the husband’s right to claim the society of his wife in the home set up by him,
there was, on the other hand, on the part of the employed wife, a clear acceptance of the marital obligation to live
with the husband when knowingly she entered into the bond of matrimony. The learned Judge was of the view that
the third situation did not present any difficulty as where a wife, against the wishes of her husband, accepts
employment away from the matrimonial home, it would be an obvious case of unilateral and unreasonable
withdrawal from the society of the husband2. With great respect and deference, Sandhawalia, J., from the beginning
seems to be obsessed by a feeling (verging on sentimentalism) whether the hallowed concept of the matrimonial
home can be withered down to a weekend or an occasional nocturnal meeting, at the unilateral desire of the wife to
live separately3. It is this metaphysical notion of a sacramental marriage and hallowed concept of matrimonial home
that had led the learned judge to take the view that he has taken.

It should be clear that many of the anachronistic remedies and concepts travelled to India with the British imperial
rule. In capitalist England, these relies of feudalism survived for quite some time. But what has happened in India is
this that with the departure of foreign rule, our love for things foreign has increased, and we cling to some of our so-
called beloved who, we feel, had jilted us.

Happily in some recent cases, a clear trend in the other direction is discernible. The Single Bench judgment in the
Pravinaben v. Sureshbhai Tribhovan Arya1, (where in the wife had taken up the job with the consent of the
husband) upholds the modern outlook where the husband and wife are equally free to take up a job and retain it.
Shah, J., observed (though rather feebly) that here was a case where the working conditions of the wife and the
implied arrangement had been arrived at between the two spouses, consequent to which the wife took up the job.
The husband had access to the wife and lived with her for quite some time at the place where the wife was posted.
Thus, the learned judge held, it was not a case where it could be said that the wife had withdrawn from the society
of the husband, the learned judge emphasised the mutual arrangement aspect: the wife took up the job with the full
consent of the husband. He did not (and counsel, it seems did not argue) say that when the husband asked his wife
to resign and made false allegations (he alleged that the wife had left him as her father wanted to marry her to
another person: a fantastic suggestion to make in the case of a mother of two children), it virtually amounted to
desertion on the part of the husband who withdrew from a state of thing, i.e., cohabitation which continued in this
manner for full three years resulting in the birth of two children.

Again, in N.R. Radhakrishnan v. N. Dhanalakshmi2 (wherein the husband and wife both were gainfully employed at
the time of the marriage), the judge though clearly recognizing that in modern law the pristine concept of the wife’s
obedience to her husband and living under his roof under all circumstances did not apply, failed to grapple with the
problem. He did hold that the wife’s refusal to resign her job did not entitle the husband to a decree of restitution of
conjugal rights, but, it seems, he thought that the wife’s living separate from her husband on account of her job
amounted to a reasonable excuse, which, it is submitted, is entirely a wrong approach. This approach concedes
that the wife’s refusal to resign amounts to withdrawal from the husband’s society, while what is submitted here is
this that it does not, since at no time, had the wife, in this case, or in other similar cases, said that she did not want
the status quo of cohabitation to continue, rather in all of them she said most emphatically that she wanted the
cohabitation to continue.

The most categorical statement in favour of the wife is found in Shanti v. Ramesh3. Katju, J., observed that the
wife’s refusal to resign her job at the instance of the husband is not a sufficient ground for granting a decree of
restitution of conjugal rights in favour of the husband, as the wife’s taking up of a job even contrary to the wishes of
the husband would not amount to withdrawing from his society.

In Swaraj Garg v. K.M. Garg1, a categorical view has been taken that a working wife would not be considered to
have withdrawn from the society of her husband if she declines to resign her job at the instance of the husband.
The facts of this case are more or less the same as those of other cases of this type. Both parties belonged to the
middle class, both were employed at different places, the wife at Suman (Punjab) and the husband at Delhi, and
neither held a lucrative job. The parties did not establish any matrimonial home, though the wife came to Delhi twice
and lived with her husband. And it seems that at her second visit the marriage broke down. It seems that the
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husband was a very moneyminded person: not merely he took a handsome dowry, but he was also always
demanding money from her, holding that whatever was hers belonged to him.

Deshpande, J., has very carefully examined the law and has scanned the Full Bench judgment of the Punjab High
Court in Kailash Wati v. Ayodhia Prakash.2 The learned Judge very pertinently put the proposition thus:

In the absence of 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 Suman and come to live with the husband when the husband did not earn
enough to maintain the family at Delhi where life was costlier.

He also referred to equality of sexes clause of the Constitution. It is submitted that this proposition has been worded
rather too narrowly; the proposition should be shorn of is qualifying clauses. It should be: in the absence of a
premarital agreement between the parties, it cannot be said that the wife (or the husband) who has a job is
expected to resign it and come to live with the husband (or the wife), the learned judge rightly came to the
conclusion: “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. In view of this
observation, there was no question of any finding as to whether the withdrawal was with reasonable excuse. The
Court observed:

Due to the financial difficulties of the husband and comfortable position of the wife and also due to 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.

It is most respectfully submitted that the question of “reasonable excuse” arises only when it established that the
respondent has withdrawn from the society of the petitioner. If the respondent has not done so, that question of
reasonable excuse does not arise.

In conclusion Deshpande, J., has disagreed with the Full Bench judgment in the Kailash Wati v. Ayodhia Prakash3.

There is another aspect of the matter. There seems to be some lack of clarity about the meaning of the expression,
“withdrawal from the society”, as distinguished from desertion. It is because sometimes practically the same
language is used in explaining its meaning which is used to describe desertion. It is submitted that the distinction
between the two is so thin as to escape notice, and, to a great extent, the distinction is not material. Apart from the
requirement that the desertion to constitute a ground for divorce or judicial separation must be of at least two years
duration, while in “withdrawal from the society” the duration of withdrawal is immaterial. In other respects it is indeed
hard to distinguish between the two. Thus, a wife being annoyed at some words or conduct of the husband leaves
for her father’s house, telling him that she would come back only when he would apologize to her and personally
fetched her. At this point of time, she is not in desertion, though she had left the matrimonial home. Now suppose,
the husband writes to her expressing his regrets for any misunderstanding and requests her to come back. If she
comes back or expresses a desire to do so she is neither in desertion nor has she withdrawn from his society. But
suppose, she writes to her husband that she would not join him. At this point of time desertion begins, so does the
withdrawal. The husband is free to file a petition for restitution of conjugal rights immediately, but if he wants to go in
for divorce he has to wait for two years. Now suppose, the husband does neither. One year elapses, and the wife
writes to her husband that she is joining him. It may happen, at this time, that the husband writes to her that she
need not join him, he does not want her. At this point of time, it is the husband who becomes the deserter, it is he
who has withdrawn from the society of the wife. Thus, in withdrawal from the society and desertion the factum of
separation and intention to separate both must co-exist, and it is here that both the concepts, desertion and
withdrawal from the society, meet. However, Sandhawalia, J., holds the view that there is a clear dividing line
between the two: whilst animus deserendi would have to be established for desertion, there was no such
requirement for establishing in withdrawal from the society, and as an illustration, the learned judge said that one
spouse might withdraw on a mere whim, but, nonetheless, the other party would be entitled to restitution. It is
submitted that whether the withdrawal or separation is on a mere whim or some firm grounds is immaterial. What is
required is: whether one has withdrawn from cohabitation, and as has been seen, earlier, one may withdraw from
cohabitation and yet may continue to live in the same matrimonial home.

In conclusion, it is submitted that the fundamental error that has been committed in these cases which hold that the
wife’s refusal to resign from her job amounts to withdrawal from the society lies in the fact that much has been
made out of the matrimonial home and the husband’s right to establish it and the wife’s obligation to live in it. If the
expression ‘matrimonial home’ has to be used (which, it is submitted, should not be used) then, there is no escape
but to accept Lord Denning’s formulation of matrimonial home: it has to be established by the mutual consent of the
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parties, and the spouse who takes an unreasonable attitude will be considered to be the one who has deserted. Not
merely this, it is also possible that there may be two matrimonial homes. In fact, this is precisely what parties did in
most of these cases, and this arrangement continued till the husband took the unreasonable attitude of asking the
wife to give up her job and wind-up the other matrimonial home. What has been submitted here is this: in cases
under section 9 of the Hindu Marriage Act, 1955 as well as under desertion, the question that arises is: are the
parties cohabiting? Who has withdrawn from cohabitation? The party who withdraws from cohabitation is the party
who has withdrawn from the society, and it is the other party who is entitled to restitution. Looked at from this angle,
it is found that in each of the above cases (where the husband asked the wife to resign her job and on her declining
to do so, withdrew from her society and cohabitation), it is the husband who is guilty of desertion. It is also
submitted that the matter should not be looked at, at all, from the point of view of the husband’s indigent
circumstances. Has the rich man’s wife no right to take up a job? It can happen that two persons who are in the
I.A.S., or one of them in the I.A.S. and the other in the I.F.S., marry each other. They may be posted at two different
places, but nothing, would prevent them from cohabiting with each other; during vacations, on leave, on holidays,
they can join each other, and live as husband and wife. It is also submitted that it should not make any difference as
to whether both the parties were in employment when they got married, or one of them, or both of them, got
employment after the marriage.

Then, it should not be forgotten that cases of husband and wife both being in employment are also a modern
phenomenon—a phenomenon from which there cannot be any escape. In the modern society the number of
working couples are on the increase, and it is not permitted to look at the marriage as a husband’s right to have the
wife to consort with him in the matrimonial home established by him. The parties would cohabit the way the
exigencies of heir employment will permit and neither the husband nor the wife (a wife who has a better job may as
well ask her husband, to give up his job) has any right to ask the other to resign. If one of them behaving
unreasonably, withdraws from the cohabitation, then it will be he or she who will be guilty of desertion or of
withdrawing from the society of the other spouse.

All said and done, the problem of working couples in modern society is one of those problems which require that the
State should discharge its public responsibility towards them. The individual liberty to take up a job should be
protected by the State’s responsibility of posting the couples at one place so far as it is possible consistently with
affairs of the State.

Restitution of Conjugal Right: Petition by husband

The husband filed the petition for restitution of conjugal rights. The respondent wife was revered by general public
as being pious lady and was known as “Sandhoori Mata”. She used to perform puja/rituals in temple. The husband
started resenting her popularity and forcibly took away offerings which were made to deity. He also burnt wooden
bridge connecting road to temple where wife used to perform puja, etc. The husband used to insist on appropriating
offerings of temple and for same subjected wife to mental and physical cruelty. Their son was also testified that his
mother was always abused and treated with cruelty. Hence, it was held by the court that it was not possible for wife
to live with husband and the husband was not entitled to restitution of conjugal rights.1 Similarly where husband was
an alcoholic and drug addict. The wife was not rendered any cooperation from him and his family. The child was
also neglected. Wife worked in Delhi. The conduct of husband was such that she stopped the weekly visits also. In
these circumstances he was refused restitution.1

Suit for Declaring Marriage Nulland Void

The respondent had filed suit for declaration of marriage null and void under section 34 of the Specific Relief Act,
1963 read with sections 11 and 12 of the Hindu Marriage Act, 1955. It was held that the declaration of such
character was not maintainable under sections 11 and 12 of the 1955 Act, but the claim of parties could not be
denied only on the ground of misnomer, quoting wrong provisions, and the courts are required to see the pleadings
and relief claimed by the parties.2

Defence to Restitution Petition: excuse of Reasonable Cause

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If the respondent has withdrawn from the society of the petitioner for a valid reason, it is a complete defence to the
restitution-petition. On the one hand, section 33 of the *Divorce Act, 1869 lays down that only that may be pleaded
as a defence to a petition for restitution which is ground for judicial separation or nullity, and on the other, the
defences under thehindu Marriage Act, 1955 and thespecial Marriage Act, 1954 are much wider. The statutes lay
down that if the withdrawal of the respondent from the society of the petitioner is with a “reasonable cause”, it is in
defence to restitution petition. Serving as a teacher at a place away from the husband’s home is a reasonable
cause. In this case the husband had also indulged in marpeet with wife so she was held to have reasonable cause.3
Further the husband cannot take defence that wife left the matrimonial home and his company when wife files the
petition for restitution.4 Husband is also not entitled to restitution where he had treated the wife cruelly1while under
the Parsi Marriage and Divorce Act, 1936 the words are “without a lawful cause.” Under Muslim law, Tyabji has
used the following words “without lawful ground.” It is submitted that the expression “without reasonable excuse”,
“without lawful cause”, “without reasonable excuse” and “without lawful ground” should have the same meaning.

A ground for any matrimonial cause is obviously a reasonable excuse5. But “a reasonable excuse” need not be
equivalent to a ground for a matrimonial cause. “Reasonable excuse” may mean much less than a ground of a
matrimonial cause. Any matrimonial misconduct which is grave and weighty will amount to reasonable excuse. In
sum, the following will amount to reasonable excuse:—
(a) a ground for relief in any matrimonial cause,
(b) a matrimonial misconduct not amounting to a ground of a matrimonial cause, if sufficient weighty and
grave, or
(c) such an act, omission or conduct which makes it impossible for the respondent to live with petitioner.

Any ground in a matrimonial cause.—Anything which amounts to a ground for judicial separation or nullity of
marriage is a complete defence to a petition for restitution of conjugal rights under the Divorce Act, 1869. On the
other hand, under thehindu Marriage Act, 1955,Special Marriage Act, 1954 and Parsi Marriage and Divorce Act,
1936 anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence
against a petition for restitution of conjugal rights. Under Muslim law grounds of batil (void) and fasid (irregular)
marriages and the grounds under the Dissolution of Muslim Marriage Act, 1939, would be good defences for a
petition for restitution of conjugal rights1. Parkash Chander v. Parmeshwari2 provides a very good illustration. This
was a wife’s petition for restitution of conjugal rights with the averments that she had married the respondent in
Kerwa form of marriage when the whereabouts of her former husband (who was a brother of the respondent) were
not known to her and that the respondent had withdrawn from her society without any reasonable excuse. The wife
alleged that after her marriage with the respondent, a male child was born to her from respondent, but thereafter
her husband who was an Inspector in agricultural department started teasing her that she was an illiterate woman
and he would get a second wife. Finally, she was turned out of the house. On evidence, it was established that the
whereabouts of the husband were very well known to everyone concerned and that he was alive. In view of this,
petitioner’s marriage with the respondent was void, being a bigamous marriage. This was held to be a valid defence
against wife’s petition and hence her petition was dismissed. Similarly, in Sridhar Dey v. Kelpna Dey3, the main
defence against wife’s petition for restitution of conjugal rights was that since no valid ceremony of marriage was
performed between the parties, the petitioner not being his lawfully wedded wife, the question of restitution being
granted did not arise. However, the husband failed to establish that no valid ceremonies of marriage were
performed1. In Ranjana Vinodkumar Kejriwal v. Vinod Kumar Kejriwal2, the husband had concealed his earlier
subsisting marriage. In this light the marriage to the petitioner was illegal, hence the husband’s petition for
Restitution was held not maintainable.

Matrimonial misconduct.—When a ground for dissolution of marriage is made out, it is also a matrimonial
misconduct. But her matrimonial misconduct amounting to a reasonable cause or excuse need not amount to a
ground of matrimonial relief. It may be less than that. But it should be grave and weighty. The Punjab and Haryana
High Court pertinently observed that reasonable excuse is something less than a justification and something more
than a mere whim, a fad or a brain wave3. But in every case the act, omission or conduct to amount to reasonable
excuse must be something which is grave and weighty, or grave and convincing4.

The following have been held to amount to reasonable cause and excuse:—

Husband’s insistence that wife must live with his parents5, wife’s reasonable apprehension that it would be unsafe to live
with the petitioner6, husband’s forcing an educated Brahmin wife to eat meat and take liquor7, husband having another
wife8, persistent nagging of wife by husband’s parents9, addiction to drink or drugs accompanied by violent temper10, acts of
 Page 19 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

physical violence short of cruelty11, overbearing, domineering and dictatorial conduct12, false accusation of adultery or
immorality1 persistent undue familiarity with a member of opposite sex2, and extravagance in living3.

Whenever a spouse accuses the other falsely of adultery, unchastity or immorality4, or call his wife a whore, a
prostitute, a fallen woman, or disowns the paternity of the child5. It amounts to reasonable excuse. In fact, these are
also cases of cruelty and as such would fall under our first head of reasonable excuse. (The case of this nature
have been discussed in the next chapter of this work under the title “Cruelty”.). Habitual drunkenness resulting in
dangerous and violent conduct towards the other spouse and children6, amounts to reasonable excuse. Husband’s
insistence on proof of physical assault on the wife is not proper. Mental pain caused to the wife by husband cannot
be lightly brushed aside.7

Husband’s refusal to migrate to wife’s place8, a strongly worded letter by the husband to the wife9, or residence of
aged parents in the matrimonial home10, does not amount to reasonable excuse. Mere invitation to the wife to
participate in the unnatural act of sodomy to which wife did not concede and which husband did not force on her,
does not amount to reasonable excuse11. Just because a spouse does not like the other is not a reasonable excuse
to withdraw from the company12, so is the unemployment of the petitioner13.

Husband’s withdrawal from wife’s society on the ground that she did not bring sufficient dowry14, wife’s assertion
that husband raped her (she denied the marriage but solemnization of the marriage and its consummation was
established)15, wife’s father’s refusal to send the wife to husband’s home16, and wife’s allegation that restitution
petition was with a ulterior motive of getting divorce17 have been held not to amount to reasonable excuse.

Restitution and irretrievable breakdown of marriage.—In Sneh Prabha v. Ravinder Kumar1, was a petition for
restitution of conjugal right. When the case reached Supreme Court, a very serious and strenuous effort at
reconciliation was made but without any success the Supreme Court felt that the marriage had broken down
irretrievably and therefore passed a divorce of divorce.

However, a petition of restitution cannot be converted into an application for divorce by way of amendment. This is
for the simple reason that prayer in both are diametrically opposite.2

Matrimonial misconduct under Muslim law.—Most text-book writers on Muslim law appear to take the view that
under Muslim law only husband can seek the remedy of restitution of conjugal rights. A predominant number of
cases that have come before the courts are the suits for restitution of conjugal rights by the husband. The reason
seems to be this: a Muslim husband can defeat wife’s petition for restitution at any time by pronouncing talak on
her.

In cases coming under Muslim law, the following defences have been held valid:—
(i) Cruelty of the defendant: It seems that not merely physical cruelty but legal cruelty in its wider connotation,
including all the instances of cruelty stated in clause (viii) of section 2 of the Dissolution of Muslim Marriage
Act, 1939, are included under the definition of cruelty. Thus, in a husband’s petition for restitution of
conjugal rights, it was held that cruelty of a character that renders it unsafe for the wife to live with the
husband is a valid defence. It was further held that it may be that gross failure by the husband of the
performance of the obligation, which the marriage contract imposes on him for the benefit of the wife might,
if properly proved, afford good ground for refusing to him the assistance of the court3. Actual violence,
resulting in an injury to life, limb or health or causing a reasonable apprehension thereof is obviously
cruelty4. Any matrimonial misconduct of the husband though not amounting to a ground for a matrimonial
relief, may also constitute a valid defence5. If the husband keeps a concubine in the same house in which
his wife lives, resulting in quarrels between the two, it amounts to cruelty6. In Itwari v. Asghari7, one A took
a second wife, as a consequence of which his first wife refused to live with him. On A’s petition for
restitution of conjugal rights, it was held that the very act of taking a second wife constitutes cruelty, since
Muslim law enforced in India considers “polygamy as an institution to be tolerated but not encouraged”. It
was further held that today the onus is on the husband to prove that his taking of second wife has not
caused an insult or cruelty to his first wife, and in the absence of cogent explanation “the court will
presume, under the modern conditions that the action of the husband in taking a second wife involved
cruelty to the first1. If the husband accuses his wife of unchastity, adultery or immorality, it amounts to
cruelty2.
(ii) When the marriage is void, irregular, or has been avoided in the exercise of option of puberty, or when the
marriage has been validly repudiated, the suit for restitution of conjugal rights will fail3. Similarly, where
 Page 20 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

sexual intercourse becomes improper, such as, after lian or zihar restitution of conjugal rights will be
refused.
(iii) If the plaintiff is guilty of apostasy, the suit for restitution will not succeed4.
(iv) Where the wife is living separate from the husband on account of nonpayment of prompt dower, restitution
of conjugal rights cannot be granted.
(v) A valid separation agreement is a good defence to a suit for restitution of conjugal rights5.
(vi) When the suit for restitution of conjugal rights is not bona fide, and is filed to serve some ulterior motive,
such as, taking possession of wife’s property, the restitution of conjugal rights cannot be decreed6.
(vii) The court may also refuse to pass a decree for restitution of conjugal right if it feels that it would not be just
and reasonable to do or that it would be inequitable to pass a decree7. Recently, Venkataramiah, J., very
pertinently, and, it is submitted, rightly observed: “It has to be borne in mind that the decision in a suit for
restitution of conjugal rights does not entirely depend upon the right of the husband. The court should also
consider whether it would make it equitable to compel the wife to live with her husband. Our notion of law is
that regard have to be altered in such a way as to bring them inconformity with the modern social
conditions”8.

Conduct which makes it impossible for one spouse to live with the other.—In some cases coming under
Hindu law, courts have expressed the view that any act or conduct of the petitioner which makes it impossible for
the respondent to live with him or her amounts to reasonable cause1. If from the facts and circumstances of the
case and acts and conduct of the petitioner it becomes evident that the couple cannot live in harmony and
happiness it would amount to reasonable excuse2, in other words, if marriage has broken down irretrievably, the
court should not pass a decree for restitution of conjugal rights. It is submitted that anything which goes to show
that the marriage has broken down irretrievably would amount to reasonable excuse.

Agreement to live separately.—It seems to be a considered view that premarriage3 or post-marriage agreement4
among the spouses to live separately are void being against public policy. This aspect of the matter has already
been discussed in Chapter II of this work. Thus a pre-marriage agreement under which the husband agreed to live
in the house of wife’s father was held not be a defence to husband’s petition for restitution of conjugal rights5.
Similarly, where the family house was gutted in a fire, consequent to which the husband persuaded his wife to go to
her parent’s home. When the house was repaired, the husband did not fetch back his wife, but started living with
another woman. On wife’s petition for restitution, the husband’s plea was that she left for her parent’s home under
an agreement was rejected by the Court and a decree was passed in favour of the wife6.

But where parties are living separately under a valid separation agreement, it is a good defence to a petition for
restitution by a spouse7. In A.E. Thirumal Naidu v. Rajmmal8, parties were living separately from each other under a
separation agreement. The Madras High Court held that it was a valid defence to a petition for restitution.

Restitution petition where one spouse had obtained a decree for restitution of conjugal rights.—It is obvious
that where a spouse has obtained a decree for restitution of conjugal rights, the other spouse cannot file a petition
for restitution of conjugal rights9. If he or she wants restitution, he or she should go and live with the spouse who
has obtained the decree. However, if a fresh cause of action arises, then any spouse, including the respondent in
the previous petition, can file a petition for restitution of conjugal rights. Thus, under a decree for restitution of
conjugal rights obtained by the husband, the wife goes to live with him, but after a few days, or within few hours,
she is turned out of the house by the husband, then, wife can file a petition for restitution.

Alternative plea of divorce in restitution petition — Alternative relief of divorce cannot be claimed in a petition asking
for restitution of conjugal rights as both the reliefs contradict each other.1

Burden of Proof and Quantum of Proof

It is a well-established rule of matrimonial law that any ground or basis of any matrimonial relief has to be proved by
the petitioner. The petitioner has not only to establish the ground of relief but also to establish that there is no bar in
granting the relief. Section 23(1) of the Hindu Marriage Act, 1955 and similar provisions in other matrimonial
statutes make it evidently clear. However, some doubts have been cast in this regard by the newly added
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Chapter V RESTITUTION OF CONJUGAL RIGHTS

Explanation to section 9 of the, Hindu Marriage Act, 1955 and to section 22 of thespecial Marriage Act, 19542. That
explanation runs:
Where a question arises whether there has been reasonable excuse for withdrawal from the society the burden
of proving reasonable cause shall be on the person who has withdrawn from the society.

This means that initial burden of proof is still on the petitioner, but in case the petitioner is able to discharge his or
her burden, “the reasonable excuse” is then to be established by the respondent.

In Sahyogita Devi v. Lalit Kumar3, the wife filed a petition for restitution of conjugal rights and the petition was
adjourned on several dates due to her inability to produce evidence. On July 29, 1983, the wife’s counsel submitted
to the court that since he had no instructions from his client, he would have no objection if the petition was
dismissed for non-prosecution. But counsel for the husband objected to the dismissal of petition and requested that
a decree of divorce be passed in favour of his client under section 23A. The case was then adjourned to July 30,
1983, and on that date counsel for the husband submitted that he had no objection if a decree for restitution of
conjugal rights was passed in favour of the wife. On the basis of this statement, the trial court passed a decree for
restitution of conjugal rights in favour of the wife. The wife filed an appeal against the judgment of the trial court and
the husband filed a crossobjection under Order XLI, rule 22 of the Code of Civil Procedure, 1908 paying that a
decree of divorce be passed in his favour. Counsel for the husband, it is submitted rightly, contended that no decree
could be passed merely on the basis of the statement of the counsel, since under section 23(1) it is the duty of the
court to be satisfied whether conditions laid down under that section were fulfilled. Rajendra Nath Mittal, J., after
observing that it was true that provisions of section 23(1) were mandatory and relief under the Act could not be
granted if the conditions laid down therein were not fulfilled, said that counsel had not been able to point out which
conditions were not fulfilled. He added that there was nothing to show that the petitioner was prosecuted in
collusion with respondent, and since provisions of the Code of Civil Procedure were applicable to the matrimonial
proceedings, the court was to pass a decree under Order IX, rule 8. It is submitted that what the court overlooked
was the provision of section 23(1) which lays down that “in any proceedings under this Act whether defended or not,
if the court is satisfied that any of the grounds for granting the relief exist... then and in such a case but not
otherwise, the court shall decree such relief”. It is a well-established rule of matrimonial proceedings that doctrine of
strict proof applies. Ordinarily, no decree could be passed merely on the basis of the consent of the parties. The
ground for relief should be established if not beyond all reasonable doubt but at least by balance of probabilities. In
this case no effect was made on the part of the wife to establish the ground for restitution of conjugal rights, rather
her counsel had pleaded that the petition be dismissed for non-prosecution.

That this is so has been reiterated by M.S. Patil, J., of the Karnataka High Court in Jyothi Pai v. P.N. Pratap Kumar
Pai1, who said that where the husband filed a petition for restitution of conjugal rights on the averment that wife had
withdrawn from his society without any reasonable excuse, the burden of proving those averments lies on him.
Explanation to section 9, the learned judge added, would not make any difference in his position of law. In such a
case, the fact that wife had contended that husband was treating her with cruelty and having driven her out of the
matrimonial home, she was left with no alternative but to take shelter in her parent’s house, is not ground to hold
that the initial burden lies on her to prove those averments2. But where wife could not prove cruelty on the part of
husband, decree of restitution was granted to the husband.3

Execution of Decree of Restitution of Conjugal Rights

Under the modern Indian law, a decree for restitution cannot be executed by the arrest of the judgment-debtor. But
under Order XXI, rule 32 of the Code of Civil Procedure, 1908 financial coercion can be exercised for its
enforcement, that is to say, the decree can be executed by the attachment of the property of the judgment-debtor.
The relevant portion of rule 32 runs thus, “Where the party against whom a decree... for restitution of conjugal
right...has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree
may be enforced in the case of a decree for restitution of conjugal right by the attachment of her property...” Rule 33
further provides for periodic payment of money if a decree for restitution of conjugal right is not complied with. Rule
33 runs as under:
(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a husband for
the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in
the manner provided in this rule.
(2) Where the Court has made an order under sub-rule (1), it may order that, in the event of the decree not
being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the
 Page 22 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

decree-holder such periodical payments as may be just, and if it thinks fit, require that the judgment-debtor
shall, to its satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical
payment of money, either by altering the times of payment or by increasing or diminishing the amount or
may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and
again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree
for the payment of money.

Court can ask the judgment-debtor to make periodical payments to the wife decree-holder. But money so directed
to be paid cannot be more than what husband would retain after making monthly payments.1

Decree of Restitution of Conjugal Rights: judgment-Debtor

The court as was held, had power to pass a direction against judgment-debtor to make periodical payment in the
event the decree is not obeyed within such time as may be fixed in this behalf. Therefore, while passing an order in
terms of sub-rule (2) of rule 33 of Order XXI of Civil Procedure Code of fixing the date from which the periodical
payment is payable, the court will have to consider all the facts and circumstances and conduct of parties. At the
same time, it must be noted that it is not necessary for the wife (decree-holder) to establish that there is willful
disobedience of the decree on the part of husband/Judgment-debtor. The court gets jurisdiction to pass a direction
for periodical payments when the judgment-debtor fails to obey the decree within time-limit provided for.1

Erroneous order of Court in Restitution of Conjugal Rights

The wife was serving as teacher at different place and unable to live with her husband’s parents place. It cannot be
said that she had withdrawn from society of her husband without sufficient reason. The wife further alleged that her
husband committed marpeet with her even after she left her husband’s house. The copy of FIR was filed in support
of her allegations of marpeet. It was held that in such circumstances, the order of trial court in decreeing suit for
restitution for conjugal rights against her was erroneous.2

1 After the Marriage Laws (Amendment) Act, 1976.

1 S.S. More Parliamentary Debates on Special Marriage Bill, 10th December, 1954.
2 Section 20 of the Matrimonial Proceedings and Property Act, 1970. See also Chand Narain Gautam v. Saroj Gautam,
AIR 1975 Raj 88 : ILR (1975) 25 Raj 155 : 1975 HLR 494 (DB), wherein B.P. Beri, C.J., has given historical
development of the remedy in England and India.
3 See Parliamentary Debates on Special Marriage Bill, 10th December, 1954.
4 AIR 1971 Bom 166 [LNIND 1970 BOM 31]: 72 Bom LR 623: ILR 1971 Bom 714 [LNIND 1970 BOM 31].
5 Order XXI, rule 32 of the Civil Procedure Code, 1898.
1 Section 13(1a)(ii).
2 Section 27.
3 AIR 1983 AP 356 [LNIND 1983 AP 176]: (1983) 2 Andh LT 47 [LNIND 1983 AP 176]: (1983) 2 APLJ (HC) 37: (1983) 2
Civ LJ 158.
4 AIR 1984 Del 66 [LNIND 1983 DEL 328]: 1984 Mat LR 1: ILR (1984) 1 Del 546 : 1984 Raj LR 187.
5 AIR 1984 SC 1562 [LNIND 1984 SC 200]: (1984) 4 SCC 90 [LNIND 1984 SC 200]: 1984 Marri LJ 499.
1 Syed Shahnawaz v. Bibi Nasrin Bano, AIR 2009 (NOC) 2155 (Pat).
2 Khatiza Tul Qubra alias Tara Bano v. Iqbal Mohd., AIR 2009 Raj 82 [LNIND 2009 RAJ 222]: 2009 AIHC 609 (NOC):
2009 (1) Raj LW 847 : 2009 (3) WLC 666.
1 The words “or the High Court” omitted by Act 51 of 2001, sec. 18.
 Page 23 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

1 ILR (1886) 8 All 149 (FB).

2 Weatherley v. Weatherley, (1947) 1 All ER 563.
1 Venugopal Naidu v. Laxmi Ammal, AIR 1936 Mad 288 : 59 Mad 392.
2 Smith v. Smith, (1939) 4 All ER 533; Wilkies v. Wilkies, (1943) 1 All ER 433.
3 Mouneer v. Mouneer, (1972) 1 All ER 289.
4 Anna Saheb v. Tarabai, AIR 1970 MP 36 [LNIND 1968 MP 19]: 1969 Jab LJ 188: 1969 MPWR 233 : 1969 MPLJ 361
[LNIND 1968 MP 19].
5 Mohan Lal v. Shanti Devi, AIR 1964 All 21 [LNIND 1962 ALL 69]: 1962 All LJ 704: 1962 All WR (HC) 696.
6 AIR 1986 MP 225 [LNIND 1985 MP 232]: (1986) 1 HLR 530: 1986 MPLJ 225.
7 Manju Kamal Mehra v. Kamal Pushkar Mehra, AIR 2010 Bom 34 [LNIND 2009 BOM 636]: 2009 (2) HLR 466: 2010 (2)
Marri LJ 36(DB).
8 Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28 : 65 Punj LR 315; Gaya Prasad v. Bhagwati, 1965 MPLJ 948 : AIR 1966
MP 212 [LNIND 1965 MP 58]: 1965 Jab LJ 1092; Pravinaben v. Sureshbhai Tribhovan Arya, 15 Guj LR 169: 1975 HLR
235: AIR 1975 Guj 69 [LNIND 1973 GUJ 98]; N.R. Radhakrishnan v. N. Dhanalakshmi, AIR 1975 Mad 331 [LNIND
1974 MAD 313]: 88 Mad LW 373: (1975) 1 Mad LJ 439; Surrinder Kaur v. Gurdeep Singh, AIR 1973 P&H 134 : 75 Punj
LR 63; Swaraj Garg v. K.M. Garg, AIR 1978 Del 296 [LNIND 1978 DEL 35]: 1978 Hindu LR 332: 1978 Raj LR 525 :
(1978) 10 Lawyer 159.
9 AIR 1964 Punj 28 : 65 Punj LR 315.
1 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58]: 1965 Jab LJ 1092.
2 AIR 1973 P&H 134 : 75 Punj LR 63.
1 15 Guj LR 169: 1975 HLR 235: AIR 1975 Guj 69 [LNIND 1973 GUJ 98].
2 AIR 1975 Mad 331 [LNIND 1974 MAD 313]: (1975) 1 MLJ 439 [LNIND 1974 MAD 313]: 88 Mad LW 373.
3 N.R. Radhakrishnan v. N. Dhanalakshmi, AIR 1975 Mad 331 [LNIND 1974 MAD 313] (332): 88 Mad LW 373: (1975) 1
Mad LJ 439; also see Manpreet Kaur v. Devinderpal Singh, AIR 2009 Utr 4 : 2009 AIHC 181 (NOC): 2009 (1) ALJ 140 :
2008 (3) UC 1954.
4 AIR 1977 Raj 113 : 1977 HLR 426: 1976 Raj LW 638.
5 ILR (1977) 1 P&H 642.
1 AIR 1975 Mad 331 [LNIND 1974 MAD 313]: (1975) 1 MLJ 439 [LNIND 1974 MAD 313]: 88 Mad LW 373.
2 This was so in Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642, and N.R. Radhakrishnan v. N. Dhanlakshmi,
AIR 1975 Mad 331 [LNIND 1974 MAD 313]: (1975) 1 MLJ 439 [LNIND 1974 MAD 313]: 88 Mad LW 373.
3 This was so in Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28 : 65 Pun LR 315; Gaya Prasad v. Bhagwati, AIR 1966 MP
212 [LNIND 1965 MP 58]: 1965 Jab LJ 1092: 1965 MPLJ 948; Surrinder Kaur v. Gurdeep Singh, AIR 1973 P&H 134 :
75 Punj LR 63; Pravinaben v. Sureshbhai Tribhovan Arya, 15 Guj LR 169: 1975 HLR 235: AIR 1975 Guj 69 [LNIND
1973 GUJ 98].
4 Something near to this happened in the Surrinder Kaur v. Gurdeep Singh, AIR 1973 P&H 134 : 75 Punj LR 63.
5 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642.
1 AIR 1964 Punj 28 (30): 65 Punj LR 315.
2 Mulla, Principles of Hindu Law, 597 (14th Edn., 1974).
3 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58] (214): 1965 Jab LJ 1092.
1 Gaya Prasad v. Bhagwati, 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58] (214): 1965 Jab LJ 1092.
3 This section imposes a similar obligation on a Hindu to maintain his or her minor or disabled major children and his or
her parents who are unable to maintain themselves.
1 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (661).
2 The learned judge also quotes section 6 of the Hindu Minority and Guardianship Act, 1956 under which the mother is
entitled to the custody of her children below the age of five, and in such a case the father has the obligation to maintain
his children even if the mother and the child are not living with him. He seems to quote it as an exceptional case where
the father has the obligation to maintain his child even though he is not living with him. But there are other cases also
where the father may be required to pay for the maintenance of a minor child (who may be more than five years) when
it is not living with him.
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Chapter V RESTITUTION OF CONJUGAL RIGHTS

1 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (664).

2 Section 24 of the Hindu Marriage Act, 1955.
3 Section 25 of the Hindu Marriage Act, 1955.
4 AIR 1964 Punj 28 : 65 Punj LR 315.
6 Grover, J., in Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28 : 65 Punj LR 315; Bhargava, J., in Gaya Prasad v.
Bhagwati, 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58] (214): 1965 Jab LJ 1092; Verma, J., in Surinder
Kaur v. Gurdeep Singh, AIR 1973 P&H 134 : 75 Punj LR 63, and Sandhawalia J., in Kailash Wati v. Ayodhia Prakash,
ILR (1977) P&H 642.
7 ILR (1977) 1 P&H 642.
1 ILR (1977) 1 P&H 642 (660).
2 AIR 1958 Punj 87 : ILR 1956 Punj 1859: 59 Pun LR 549.
3 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (649).
4 Manu Smriti, V: 51.
5 Yajnayalkyasmriti, I: 75.
6 Vishnusmriti, XXV: 13-14.
7 Katyayanasmriti, 836. Brihaspati ordained that a wife who feels afflicted when her husband is afflicted, and feels happy
when he feels so, is truly the devoted wife.
8 Katyayanasmriti, 150. See also Yajnavalkayasmriti, at 85-86; Sukraniti, V, 425; Vishnusmriti, XXV, 13-14; Baudhayana
Dharmasutra, III, 345; Vaishtaha Dharmasutra, V, 3.
1 Mahabharata, Vanaparva, 232, 4.
2 Katyayana quoted in the S mriti Chandrika, 221.
3 Quoted in Madan Parijata, 153.
4 Narada Smriti, XII: 97.
5 Arthasashtra, XV.
6 Gaya Prasad v. Bhagwati, 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58] (213): 1965 Jab LJ 1092.
1 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (650).
2 For this view support is sought from the following passage in Lane v. Lane, (1954), p. 284, “Remembering always, as
Lord Merrivale, p. said in Pulford v. Pulford,(1923) P. 18: 128 LT 256: 39 TLR 35, that desertion is not a withdrawal
from a place but from a state of things, I will call that state of things, for short, “the home”.
3 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (653).
4 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642 (651). In support of his view the learned judge quoted the
following passage from 41 Corpus Juris Secondum:
The term, however, has developed to include the right of the wife to the society and comfort of the husband and is now used
interchangeably to denote the affection, aid, assistance, companionship, comfort, and society of either spouse; and as
thus employed, the term has been defined, as those duties and obligations, which by marriage both husband and wife
take on themselves towards each other in sickness and health; conjugal affection; conjugal fellowship; conjugal society
and assistance; the conjugal society arising by virtue of the marriage contract; the contract’s affection, assistance and
aid of the spouse. The loss of consortium is the loss of any or all of these rights, (Ibid. at 652-653).
1 Mansey v. Mansey, (1940) 2 All ER 424.
2 Mansey v. Mansey, (1940) 2 All ER 424 (425).
3 (1949), p. 98.
1 (1949), pp. 103-104.
2 (1940) 2 All ER 424.
1 41 Corpus Juirs Secundum, 399.
2 (1951) 1 All ER 955 : (1951) 1 TLR 1019 : 1951 P 320.
4 Section 10, which is entitled, ‘Choice of Domicile’, is in the section on ‘Husband and wife’.
5 Corpus Juris Secundum, 340.
 Page 25 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

6 Gray v. Formoosa, (1963) p. 259 (267).

7 Adams v. Adams, (1971) p. 188 (216).
8 Sub-section (1) of section 1 runs:
Subject to sub-section (2) below, the domicile of a married woman as at anytime after the coming into force of this section
shall, instead of being the same as the husband’s by virtue only of marriage, be ascertained by reference to the same
factors as in the case of any other individual capable of having an independent domicile.
1 Whicker v. Hume,(1850) 10 HL Cases 124; Moorhome v. Lord,(1863) 10 HL Cases 272.
2 See Cheshire Private International Law 148 (7th Edn., 1969); for a review of these cases and summary or various
views see Paras Diwan, Indian and English Private International Laws (1993), 157-58.
3 Cheshire, Private International Law 148 (7th Edn., 1969), at 277-278.
4 Radwan v. Radwan (No. 2), (1972) 3 All ER 1026.
5 For a review of the controversy see Paras Diwan, Indian and English Private International Laws (1997).
6 Paras Diwan, Indian and English Private International Laws (1997), 322.
7 Thomas v. Thomas, (1948) 2 KB 294 : (1948) 2 All ER 98 : 64 TLR 377, per Lord Goddard, C.J.
1 Evans v. Evans, (1947) 1 KB 175 (180).
2 AIR 1964 Punj 28 : 65 Punj LR 315.
3 1965 MPLJ 948 : AIR 1966 MP 212 [LNIND 1965 MP 58]: 1965 Jab LJ 1092.
4 15 Guj LR 169: 1975 HLR 235: AIR 1975 Guj 69 [LNIND 1973 GUJ 98].
5 (1897) P. 24.
6 (1897) P. 24(26-27).
1 (1943) 2 All ER 465.
2 (1943) 2 All ER 465 (468).
1 (1943) 2 All ER 465 (470).
2 (1897), p. 24.
3 (1943) 2 All ER 465.
4 See Paras Diwan, Modern Hindu Law (1987), 160-62.
5 See the next chapter under the title “Desertion”.
1 Kailash Wati v. Ayodhia Prakash, ILR (1977) 1 P&H 642.
2 ILR (1977) 1 P&H 642 (652-653). On this situation Kusum says that when a husband marries a woman he should be
fully aware of the consequences of a transfer, etc.
3 ILR (1977) 1 P&H 642 (649).
1 AIR 1975 Guj 69 [LNIND 1973 GUJ 98] (74): 15 Guj LR 169: 1975 Hindu LR 235.
3 (1961) All LJ 67.
1 AIR 1978 Del 296 [LNIND 1978 DEL 35]: 1978 Hindu LR 332: 1978 Raj LR 525 : (1978) 10 Lawyer 159; see also
Deepa Suyal v. Dinesh Chandra Suyal, AIR 1993 All 244 [LNIND 1993 ALL 177]: 1994 All LJ 276: 1993 (1) All CJ 713:
1993 (2) Civ LJ 680.
2 ILR (1977) 1 P&H 642 (664).
3 ILR (1977) 1 P&H 642.
1 Kuldeep Kumar Dogra v. Monika Sharma, AIR 2010 HP 58 [LNIND 2009 HP 96]: 2010 AIHC 3277: 2010 (4) Civil CC
12.
1 Dr. Anudeep Singh v. Dr. Geetanjali Singh, AIR 2013 P&H 60 : 2013 (2) DMC 330: 2013 (1) Hindu LR 513.
2 Asfaq Quereshi v. Aysha Quereshi (Nivedita Yadav), AIR 2010 Chh 58 : 2010 (3) Civ LJ 736: 2011 (2) CCC 717.
3 Manpreet Kaur v. Devinderpal Singh, AIR 2009 Utr 4 : 2009 AIHC 181 (NOC): 2009 (1) ALJ 140 : 2008 (3) UC 1954.
4 Pilli Venkanna v. Pilli Nookalamma, AIR 2009 AP 69 [LNIND 2008 AP 956]: 2009 AIHC 400 (NOC): 2009 (4) ALJ
(NOC) 653: 2009 (2) Andh LD 300(DB).
 Page 26 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

5 For instance, see Peddigari Annapurnamma v. Peddigari Appa Rao, AIR 1963 AP 312 [LNIND 1962 AP 46]: (1962) 2
Andh LR 434: ILR 1964 AP 1368; Kuppa Ramoki v. Kuppa Kameswari, AIR 1975 AP 3 [LNIND 1974 AP 113]: (1974) 1
Andh LT 245; Rebarani Sen Gupta v. Ashit Sen Gupta, AIR 1965 Cal 162 [LNIND 1964 CAL 119]; Jagdish Lal v.
Shyama Madan, AIR 1966 All 150 : 1965 All WR (HC) 43: 1965 All LJ 453. In some cases an attempt was made to give
wider interpretation to “reasonable excuse”: Mt. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162 : 61 Punj LR 188:
ILR 1959 Punj 509; Madan Mohan v. Sarla, 1966 PLR 177; Santosh v. Mahar, 1966 PLR 73; Shakuntalabai Baburao v.
Baburao Daduji Mandilik, AIR 1963 MP 10 [LNIND 1962 MP 146]: 1963 Jab LJ 105; Ramkali v. Sewa Singh, 1969 Del
LT 519; Shanti Devi v. Balbir Singh, AIR 1971 Del 294 [LNIND 1971 DEL 31]: ILR (1971) 1 Del 213; Bejoy Daw v.
Aloka Daw, AIR 1969 Cal 477 [LNIND 1969 CAL 20]: 74 CWN 624 (DB); P.S. Ramarao v. P.R. Krishnamani Ammal,
AIR 1973 Mad 279 [LNIND 1972 MAD 212]: (1973) 1 Mad LJ 203: 86 Mad LW 215; Pushpa Rani v. Vijay Pal Singh,
AIR 1994 All 216 [LNIND 1993 ALL 160]: 1994 All LJ 765: 1993 (2) All CJ 778: 1994 (1) Civ LJ 404 (cruelty); S.
Jayakumari v. S. Krishnan Nair, AIR 1995 Ker 139 : 1995 (1) DMC 48; Himansu Sekhar Rana v. Tapati Rana, AIR 1995
Cal 110 [LNIND 1994 CAL 51]: (1994) 1 DMC 594: 1994 (2) HLR 134.
1 Asha Bibi v. Kadir Ibrahim, ILR (1910) 33 Mad 22 ; Mt. Sofia Begam v. Zaheer Hasan, AIR 1947 All 16 : 230 Ind Cas
239; Sakila v. Gulam, AIR 1977 Bom 166 ; Bakh Bibi v. Quim Din, AIR 1934 Lah 907 ; Bhawan v. Gaman, AIR 1934
Lah 77 ; Abdul Karim v. Aminabai, AIR 1935 Bom 308 : ILR (1935) 59 Bom 426.
2 AIR 1987 P&H 37 : (1986) 90 Punj LR 581: 1987 Marri LJ 111: (1987) 1 Hindu LR 594.
3 AIR 1987 Cal 213 [LNIND 1986 CAL 341]: (1988) 1 HLR 562: (1987) 2 DMC 442 (Cal).
1 Samraj Nadar v. Abraham Nadachi, AIR 1970 Mad 434 (adultery); Jagdish Lal v. Shyama Madan, AIR 1966 All 150 :
1965 All WR (HC) 43: 1965 All LJ 453(petitioner’s impotency); Balbir Kaur v. Gurmel Singh, 1974 ALR 174 (petitioner’
bigamy); Rabindranath Barik v. Pramila Bala Barik, AIR 1979 Ori 85 [LNIND 1978 ORI 67]: 47 Cut LT 182 (nagging);
Himansu Sekhar Rana v. Tapati Rana, AIR 1995 Cal 110 [LNIND 1994 CAL 51]: (1994) 1 DMC 594: 1994 (2) HLR 134
(cruelty not proved); S. Jayakumari v. S. Krishnan Nair, AIR 1995 Ker 139 : 1995 (1) DMC 48 (mental cruelty).
2 AIR 1997 Bom 380 [LNIND 1997 BOM 871]: 1997 (3) All MR 633: 1998 (1) Bom CR 268 [LNIND 1997 BOM 871]:
1998 (2) Marri LJ 272.
3 Sadhu Singh Balwant Singh v. Jagdish Kaur Sadhu Singh, AIR 1969 Punj 139 : 1968 Cur LJ 598: 70 Pun LR 712.
4 See Shyamlal v. Saraswati Bai, AIR 1967 MP 204 : 1967 MPLJ 154: 1967 Jab LJ 302; Satya Devi v. Ajaib Singh, AIR
1973 Raj 20 : 1972 WLN 392: ILR (1972) 22 Raj 581 .
5 Jogindra Kaur v. Shivcharara Singh, AIR 1965 J&K 95 : 1965 Cr LJ 226: 1965 Kash LJ 226.
6 Shanti Devi v. Balbir Singh, AIR 1971 Del 294 [LNIND 1971 DEL 31]: ILR (1971) 1 Del 213.
7 Chand Narain Gautam v. Saroj Gautam, AIR 1975 Raj 88 : 1975 Hindu LR 494: 1975 Raj LW 537 : ILR (1975) 25 Raj
155 .
8 Bhagwanti v. Sadhu Ram s/o Nathu Dass, AIR 1961 Punj 181 : AIR 1961 Punj 181 : ILR (1960) 1 Punj 579;
Siddegowda v. Paravathamma, AIR 1965 Mys 299 ; Mallappa Gurulingappa Kameri v. Neelawwa Malappa Kameri, AIR
1970 Mys 59 : (1969) 2 Mys LJ 332. But see Rohini Kumari v. Narendra Singh, AIR 1972 SC 459 [LNIND 1971 SC
615]: (1972) 1 SCA 152 [LNIND 1971 SC 615]: 1972 (1) SCJ 487 [LNIND 1971 SC 615]: (1972) 2 SCR 657 [LNIND
1971 SC 615]: (1972) 1 SCC 1 [LNIND 1971 SC 615].
9 Rabindranath Barik v. Pramila Bala Barik, AIR 1979 Ori 85 [LNIND 1978 ORI 67]: 47 Cut LT 182; Rohini Kumari v.
Narendra Singh, AIR 1972 SC 459 [LNIND 1971 SC 615]: (1972) 1 SCA 152 [LNIND 1971 SC 615]: 1972 (1) SCJ 487
[LNIND 1971 SC 615]: (1972) 2 SCR 657 [LNIND 1971 SC 615]: (1972) 1 SCC 1 [LNIND 1971 SC 615].
10 Beer v. Beer, (1906) 94 LT 704 : 54 WR 564: 22 TLR 338 (English decision).
11 Butland v. Butland, (1913) 29 LT 704 (English decision).
12 Timmins v. Timmins, (1953) 2 All ER 187 : (1953) 1 WLR 757.
1 Bai Jamuna v. Dayalji, (1920) 22 Bom LR 241.
2 Russell v. Russell,(1835) Sol Jo 16; Kemp v. Kemp, (1953) 2 All ER 553.
3 G. v. G., (1930), p. 72.
4 Dilip Kumar Dutta v. R.T.A. Hoogly, (1970) 74 CWN 524 : ILR (1969) 1 Cal 172 ; Chandra Kanta v. Dial Chand, ILR
(1969) 1 Punj 251 ; Suman Bai v. Anand Rao, AIR 1976 Bom 212 [LNIND 1975 BOM 212]: 1976 HLR 560.
5 Bejoy Daw v. Aloka Daw, AIR 1969 Cal 477 [LNIND 1969 CAL 20]: 74 CWN 624 (DB).
6 Greena v. Greena, (1916), p. 188. See also Timmins v. Timmins, (1953) 2 All ER 187 : (1953) 1 WLR 757 (husband
was over-bearing, domineering, dictatorial and cruel otherwise).
7 S. Jayakumari v. S. Krishnan Nair, AIR 1995 Ker 139 : 1995 (1) DMC 48 (DB).
8 Manjula v. Zaverilal, AIR 1975 Guj 158 : (1974) 15 Guj LR 758.
 Page 27 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

9 Gurdev v. Sarwan, 1966 PLR 744; Trilok Singh v. Savitri Devi, AIR 1972 All 52 : 1971 All WR (HC) 567.
10 K. Kanthimathi v. Parameswara Iyer, AIR 1974 Ker 124 [LNIND 1973 KER 236]: (1974) 1 Ker LJ 22: 1974 Ker LT 889.
11 K.V. Revanna v. Suseelamma, AIR 1967 Mys 165 : (1966) 5 Law Rep 357: (1966) 1 Mys LJ 44 [LNIND 1965 KANT
66]; Khageswar Karna v. Aduti Karnani, AIR 1967 Ori 80 [LNIND 1966 ORI 49]: 33 Cut LT 260.
12 Anna Saheb v. Tarabai, AIR 1970 MP 36 [LNIND 1968 MP 19]: 1969 MPLJ 361 [LNIND 1968 MP 19]: 1969 Jab LJ
188.
13 Madan Mohan Kohli v. Sarla Kohli, AIR 1967 Punj 397 : (1966) 68 Pun LR (D) 177.
14 Devinder Kaur v. Jit Singh, 1978 HLR 515.
15 Jamna v. Kehar Singh, 1976 HLR 779.
16 Gurmit Kaur v. Gian Chand, 1976 HLR 728: 68 Punj LR 177.
17 Sukhdev Kaur v. Darshan Singh, 1978 HLR 255.
1 AIR 1995 SC 2170 : (1995) Supp 3 SCC 440: 1995 AIR SCW 3375.
2 Reema Bajaj v. Sachin Bajaj, AIR 2012 Raj 8 [LNIND 2011 RAJ 65]: 2012 (1) Hindu LR 469: 2012 (1) DMC 138.
3 Buzul-ul-Raheem v. Shamsoonissa, (1967) 11 MIA 551; see also Mt. Sofia Begam v. Zaheer Hasan, AIR 1947 All 16 :
230 Ind Cas 239; Wali v. Tazbana, AIR 1960 AP 293 .
4 Asha Bibi v. Kadir Ibrahim, ILR (1910) 33 Mad 22 ; Mt. Sofia Begam v. Zaheer Hasan, AIR 1947 All 16 : 230 Ind Cas
239; Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166 [LNIND 1970 BOM 31]: 72 Bom LR 623: 1970 Mah LJ 904 :
ILR (1971) Bom 714 [LNIND 1970 BOM 31].
5 Husani v. Md. Rustom, (1906) 29 All 222.
6 Anis v. Md. Istafa, (1933) 55 All 643.
7 AIR 1960 All 684 [LNIND 1959 ALL 153]: 1960 All LJ 523: 1960 All WR (HC) 397; see also Annis Begum v.
Muhammed Istafa Wali Khan, AIR 1933 All 634 : ILR 55 All 743.
1 See Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200 [LNIND 1976 KANT 48]: (1976) 1 Kant LJ 427: ILR
(1976) Kant 1008 . But see Syed Ahmad Khan v. Imrat Jahan Begum, AIR 1982 All 155 : 1982 UPTC (NOC) 82: (1982)
1 DMC 285.
2 Husani v. Rustam, (1906) 29 All 222; Maqboolan v. Ryamzan, AIR 1972 Oudh 154 . But not if the charge is true:
Zaamiruddin v. Sobera, (1972) 54 Cal 363.
3 Bakh Bibi v. Quim Din, AIR 1934 Lah 907 ; Bhawan v. Gaman, AIR 1934 Lah 77 ; Abdul Karim v. Aminabai, ILR (1936)
59 Bom 426 .
4 Nawroz Ali v. Azizbibi, (1876) PR 235; Amin v. Asman, (1910) 33 All 90; Bai Jina v. Kharva, (1907) 33 Bom 366; (wife
need not stay with out-caste husband. It is submitted that this proposition no longer holds good, particularly after the
coming into force of the Constitution of India).
5 Sakina v. Shamshad, AIR 1936 Pesh 195 . See also cases discussed under the head: “Separation Agreements”.
6 Hamid Hussain v. Kubra Begum, AIR 1918 All 235 : (1918) 40 All 332.
7 Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200 [LNIND 1976 KANT 48]: (1976) 1 Kant LJ 427: ILR
(1976) Kant 1008 : 1976 Hindu LR 651.
8 Raj Mohammad v. Saeeda Amina Begum, AIR 1976 Kant 200 [LNIND 1976 KANT 48] (202): (1976) 1 Kant LJ 427 :
ILR (1976) Kant 1008 : 1976 Hindu LR 651.
1 Gurdev v. Sarwan, 1966 PLR 744; Triwa v. Savitri, AIR 1972 All 152 .
2 Baburao v. Sushila Bai, AIR 1964 MP 73 [LNIND 1962 MP 162]: 1963 MPLJ 426: 1963 Jab LJ 446 : ILR (1963) MP
462.
3 Brodie v. Brodie, (1917), p. 271.
4 Bai Fatima v. Ali Mohammed, (1912) 14 Bom LR 178.
5 Pillalamarri Vara Prasada Sarma v. Pillamarri Seshalakshmi, AIR 1975 AP 239 [LNIND 1975 AP 254]: 1975 Andh LT
31.
6 Chinnaperumal v. Mariyayee Ammal, 1976 HLR 568: 89 Mad LW 51: AIR 1976 Mad 179 [LNIND 1973 MAD 265].
7 Brodie v. Brodie, (1917), p. 271.
8 AIR 1968 Mad 201 [LNIND 1967 MAD 3]: 80 Mad LW 412: (1967) 2 Mad LJ 484: ILR (1968) 3 Mad 275 .
 Page 28 of 28
Chapter V RESTITUTION OF CONJUGAL RIGHTS

9 Pillalamarri Vara Prasada Sarma v. Pillamarri Seshalakshmi, AIR 1975 AP 239 [LNIND 1975 AP 254]: 1975 Andh LT
31.
1 Baldev Raj v. Bimla Sharma, AIR 2006 HP 33 [LNIND 2005 HP 79]: 2006 (2) AIR Jhar R (NOC) 609.
2 This explanation and a similar explanation to section 22 of the Special Marriage Act, 1954 was added by the Marriage
Laws (Amendment) Act, 1976.
3 AIR 1985 P&H 349 : (1985) 1 HLR 702: (1985) 2 Punj 21.
1 AIR 1987 Kant 24 [LNIND 1986 KANT 72]: (1986) 1 Kant LJ 422 [LNIND 1986 KANT 72]: (1986) 2 Hindu LR 216 :
(1986) 2 Civil LJ 460.
2 See also Ratnaprabhabai v. Sheshrao Shankarrao Bhore, AIR 1972 Bom 182 [LNIND 1971 BOM 110]: 74 Bom LR
434: 1972 Mah LJ 159 [LNIND 1971 BOM 110]; Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40
[LNIND 1963 SC 187]: (1965) 1 SCA 310 [LNIND 1963 SC 187]: (1964) 4 SCR 331 [LNIND 1963 SC 187]; Tek Chand
v. Rahsha Wati, 1976 HLR 725.
3 Himansu Sekhar Rana v. Tapati Rana, AIR 1995 Cal 110 [LNIND 1994 CAL 51]: 1994 (1) DMC 595: 1994 (2) Hindu
LR 134; P. Rajeshkumar Bagmar v. Swathi Rajeshkumar Bagmar, AIR 2008 Mad 36 [LNIND 2007 MAD 3377]: 2008
AIHC 223 (NOC): 2008 (1) Mad LJ 575: 2008 (1) Mad LW 153.
1 Vijendra B. Singh v. Uma Vijendra Singh, AIR 2010 Bom 131 [LNIND 2010 BOM 359]: 2010 (2) Hindu LR 62: 2010 (4)
Mah LJ 441 [LNIND 2010 BOM 359].
2 Manpreet Kaur v. Devendra Pal Singh, AIR 2009 Uttr 4 : 2009 AIHC 181 (NOC): 2009 (1) ALJ 140 : 2008 (3) UC 1954.

End of Document
 Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter VI SEPARATION AGREEMENTS AND JUDICIAL

SEPARATION
Sometimes parties do not want to snap the tie of wedlock, but still do not want to cohabit. In such circumstance law
provides them with two remedies:
(i) Separation agreement, and
(ii) Judicial separation.

The reason for bringing cohabitation to an end and yet retaining the marital bond may be several. Sometimes
parties (or one of them, when petition for judicial separation is moved) do not wish to obtain divorce, but want to
formally separate from each other. They may seek separation because one year bar to divorce is not yet over. May
be, they are seeking separation because a ground for divorce is not yet available to them. Sometimes a party seeks
judicial separation (and not divorce even when a ground is available) because he or she does not want the other to
remarry. A decree of judicial separation may also be sought as the petitioner wants to take advantage of the
ancillary proceedings, such as, she may seek maintenance or custody of, and maintenance for, children and yet
does not desire formally to get the marriage dissolved. In a petition for judicial separation, the court’s power of
granting injunction may also be invoked.

It should be noticed that separation under an agreement or a decree of judicial separation is a separation from the
bed and board. The parties may still live in the same home. In Montgomery v. Montgomery1, Ormrod, J., observed
that a decree of judicial separation is an order that the petitioner was no longer bound to cohabit with the
respondent; it is not an order that the respondent should cease to live with the petitioner. This means that the court
will not necessarily exclude a husband against whom decree of judicial separation has been granted from the
matrimonial home. However, it will do so if wife needs protection from molestation or for some other cogent reason.
In India also a decree of judicial separation does not dissolve the marriage bond but merely suspends marital rights
and obligations during the period of subsistence of the decree; parties continue to be husband and wife. Neither
party is free to remarry. In the event of one of the spouses dying during the subsistence of the decree of judicial
separation, the other will succeed to his property. On the other hand, a decree of divorce puts the marriage contract
to an end; all mutual rights and obligations of spouses cease. In other words, after a decree of dissolution of
marriage, marriage tie is broken, parties cease to be husband and wife, and are free to go their own ways. There
remains no bond between them. After a decree of divorce parties are free to remarry. Matters relating to alimony
and maintenance of children may be agitated both after a decree of divorce as well as judicial separation.

A valid separation agreement pre-supposes a valid marriage. If marriage is void, so is the separation agreement.
The same is true of the decree of judicial separation. No court will pass a decree of judicial separation if no valid
marriage subsists between the parties1.

In both judicial separation and separation under an agreement, marriage subsists. If either remarries he or she will
be guilty of bigamy. During the subsistence of the decree of judicial separation or separation agreement, if one of
the parties dies the other will succeed to the property2.

Separation Agreements
Separation agreements are an important aspect of matrimonial law. In essence it is an agreement for consensual
separation from bed and board; each party releases the other after the marital obligation of cohabitation. Separation
 Page 2 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

agreements are not part of matrimonial statutes. They are regulated by the general law of contract. After a
considerable conflict of opinion at common law, it came to be settled in the 19th century that separation agreements
are not void as conflicting with public policy, provided separation has actually occurred or is inevitable. Even today
an agreement between the spouses where under they make arrangements in the event of a future separation is
altogether void. In England certain aspects of separation agreements are now regulated statutorily3. But this is not
so in India.

Indian precedent on the subject are few. Here some English precedents are being cited which may be useful in the
context.

Sometimes spouses want to separate from each other yet they do not want judicial separation or divorce, even
when a ground is available to them. When they want to separate from each other as quickly as possible and without
any publicity, the easy way open to them is to separate under an agreement. Once a separation agreement is
entered into, neither party can dub the other as deserter. No separation agreement is valid unless separation takes
place. In a separation agreement, actual separation is necessary. In other words, separation must relate to present
separation. Agreements for future separation are void being against the public policy4.

In separation agreements consideration is provided by each party forgoing his or her right to the other’s consortium.
Separation agreements do not lead to the forfeiture of the claim of maintenance. In the modern law, separation
agreements have become complicated. They contain clauses about many matters, such as, for the maintenance of
wife (or husband) and children, division and use of matrimonial property and matrimonial home, custody of children,
and non-molestation clauses.

A separation agreement may be void or voidable for the same reason as any contract may be. Thus such an
agreement may be void for mistake. Suppose, parties entered into the agreement on the assumption that they were
lawfully wedded, but when it was discovered that no lawful marriage existed between them, the agreement became
void1. An agreement may be voidable for fraud, misrepresentation, coercion, undue influence. A separation
agreement may also be illegal just as any other contract may be, such as, where the purpose of the agreement is to
promote adultery2. A separation agreement having a clause purporting to restrict the right to invoke court’s
jurisdiction for seeking maintenance is void. However, prima facie, a valid agreement once entered into can only be
varied by consent, unless the agreement is not enforceable on the ground of illegality, mistake, fraud, or undue
influence.

In England most of the separation agreements contain maintenance clauses. The fact of the matter is that they are
mostly entered into for that reason. In such cases, husband wants to buy off the wife once and all, and the wife, on
the other hand, wants to be assured that in all circumstances she is entitled to a stipulated sum. But in days of
inflation, over the years, the provision may become hopelessly inadequate. In such case, court’s power of providing
relief is not taken away. In Goodinson v. Goodinson3, the only clause in the agreement was that the husband would
pay to his wife certain amount of maintenance but nothing else was laid down. The court held that the agreement
was not enforceable for want of consideration4. At the same time a covenant by the wife to accept certain stipulated
amounts in lieu of any other right to apply to the court for maintenance is invalid being against public policy. The
House of Lords observed that wife’s right to future maintenance is a matter of public policy which she cannot barter
away5. Thus, a wife who had expressly covenanted to accept certain financial provision and not to apply to the court
was held still entitled to seek further maintenance or get the enhancement of the same in a petition for divorce.
However, payments of agreed amount of maintenance for some duration is of great evidential value. The courts
would not lightly upset, or go beyond the terms of an agreement freely entered into6. But nothing prevents the court
from upsetting an agreement if new circumstances are brought to the notice of the court arising after the agreement
was entered into. Thus, serious illness requiring money for treatment, or inflation may be sufficient for changing the
existing terms of an agreement7. In India also this is the position. Whenever subsequent events render the amount
of maintenance agreed to under an agreement inadequate, the court has power to change the same8.

It appears to be the settled law that covenants relating to maintenance of the spouse and maintenance, custody
and education of children are enforceable1. There is conflict in the judicial opinion whether covenants relating to
maintenance are enforceable if wife is found guilty of unchastity2. It is submitted that if the covenant granting
maintenance is couched in absolute terms, the maintenance will be payable under all circumstances even when the
wife becomes unchaste or gets divorce or judicial separation or gets the marriage annulled3. Such a covenant can
be executed even when cohabitation is resumed4. In England the recent tendency is to regard the maintenance
clause as a covenant for wife’s lifetime, and such a covenant is, therefore, enforceable against the husband’s
executors if he predeceases her5.
 Page 3 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

In a separation agreement clauses relating to custody and access are enforceable. But court’s jurisdiction to make
orders for custody, access, etc. in matrimonial proceedings filed subsequently is not ousted. In English law, the
Guardianship Act, 1973 now lays down that a spouse may give up, in whole or in part, his or her right and authority
relating to the custody or upbringing of minor child and administration of his property by a separation agreement,
but that no court shall enforce any such provision, if it is of the opinion that it is not for the child’s welfare6. In India,
under all personal laws and under all the matrimonial statutes as well as the Guardians and Wards Act, 1890, the
courts have held that the welfare of the child is the paramount consideration, and therefore here the position seems
to be the same7.

The right of a spouse to sue for divorce, judicial separation or nullity is not lost, even if there is clause to that effect
in the separation agreement. However, sometimes parties stipulate in the separation agreement that neither of
them shall file a petition for divorce or any other matrimonial proceeding on the basis of conduct that has occurred
in the past. This is called Rose clause, and under English law such stipulation is binding8. It is necessary that such
a clause should be expressly included in the agreement, it cannot be implied. In India there is no authority which
holds that the Rose clause is binding or otherwise.

The separation agreements in their formation as well as discharge are governed by the law of contract. On
discharge of a separation agreement, desertion may commence, the liability of maintenance under the agreement
may cease, and, in fact, all terms stipulated thereunder may cease to be operative.

A separation agreement may be discharged by its own terms, or it may be discharged by a later independent
agreement between the parties. It seems that resumption of cohabitation will also discharge a separation
agreement1, though under English law it is a matter of some doubt. But it seems the question is one of construction
of an agreement. If under the agreement husband has created a separate trust in favour of the wife and children, or
covenanted to pay the wife an annuity for the rest of her life, his liability will remain even though parties have
resumed cohabitation2. A separation agreement may, obviously, be discharged by one party, if the other party
wishes to do so. In this regard, separation agreements differ from commercial contracts, as innocent party is not
bound to inform the spouse in breach that he has accepted the repudiation3. Breach of some terms of agreement
does not mean that the entire contract will stand discharged. If two covenants are not interdependent, breach of one
does not mean that the other stood repudiated automatically. In Fearson v. Aylesford4, a husband’s covenant to pay
maintenance to wife and wife’s covenant not to molest her husband were treated as not interdependent and thus it
was held that the wife could still enforce husband’s covenant though she failed to perform her own.

Some of the separation agreement (particularly in England and other western countries) have non-molestation
clauses. The non-molestation clause is usually worded thus: Neither spouse will molest, annoy or interfere with the
other. The nature of act or acts amounting to molestation are thus stated by Brett, MR:

I am of the opinion that the act done by the wife or by her authority must be an act which is done with intent to annoy, and
does in fact, annoy, or which is in fact an annoyance; or to put the latter proposition into another shape, that it must be an
act done by her with a knowledge that what she is doing must of itself without more annoy her husband, or annoy a
husband with ordinary and reasonable feeling4.

If a wife commits adultery and gives birth to a child consequent thereto, it does not amount to molestation, but in
case she holds out the child to be the child of her husband, it would amount to molestation. Similarly, if a spouse
petitions for divorce it will not amount to molestation, unless the suit is filed with the specific intention of causing
annoyance5.

The law of separation agreements is not satisfactory. In Morton v. Morton (No. 2)6, Singleton, C.J., observed:

Why should I enter into an agreement? If I do and I fall out of work or if my means becomes less, I am bound by the
terms of the agreement, but why should I, or any other husband, enter into an agreement if the other party is not
going to be bound by it?

Thereafter the Morton Commission recommended rationalization of law on the following two aspects:—
(a) As a general rule maintenance agreements should be binding and enforceable on the parties.
(b) Either party should be able to apply to the court for order varying the terms of agreements if fresh
circumstances crop up necessitating a variation.
 Page 4 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

The Maintenance Agreement Act, 1957, implemented these suggestions. The law was again amended by the
Matrimonial Proceedings and Property Act, 1970.1 These have now been incorporated in the Matrimonial Causes
Act, 19732.

Remedies for breach of a separation agreement are the usual law of contract remedies. Thus damages may be
claimed. It seems that specific performance may also be claimed for (i) execution of a deed of separation, and (ii)
for enforcing a contract for creating trust.

An injunction may also be granted for breach of a negative covenant, such as, of the non-molestation clause3.

Agreements under Muslim Law

This is a unique feature of Muslim matrimonial law that spouses are permitted to enter certain agreements, either at
the time of the marriage or even thereafter. This aspect of the matter has already been discussed in Chapter II, Part
I under the title “Pre-marriage Agreements: Muslim Law” of this work.

Separation and Separate Residence and Maintenance

Under the Shastric Hindu law, the wife was allowed to live separately from her husband in certain very exceptional
circumstances and yet could claim maintenance. During the Raj the law was developed judicially which culminated
in its codification in 1946, in the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946.
The provision has been re-enacted in section 18(2) of the Hindu Adoptions and Maintenance Act, 1956. No other
Indian matrimonial law makes such a provision. Section 18(2) runs:

A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her
consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be
harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine
elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.

This provision is entirely different from separation agreements or judicial separation1. In a given case a wife may not
like to obtain a decree for judicial separation, yet she may also not like to live with her husband. It may also be that
no ground of judicial separation is available to her. In such cases, if a ground is available to her under section 18(2)
of the Hindu Adoptions and Maintenance Act, 1956, she may live separate from her husband and claim
maintenance from him. When a decree of judicial separation is passed, it is no longer obligatory for either party to
cohabit with the other. But separate residence under section 18 is not of the same character. For example, an order
for separate residence and maintenance on the ground that the husband has a second wife living, will subsist only
till the second wife is alive. If the second wife dies, the other wife cannot insist to live separately. Or, even if the
second wife is alive but the husband has abandoned her, then also the other wife cannot insist to live separately,
unless she has some other ground available to her under section 18(2)2. A decree of judicial separation is a
judgment in rem, and will be operative till it is not rescinded3, while this is not the case under section 18. Under
section 18(2) the wife may choose to live with her husband at any time without obtaining any order from the court.
In judicial separation the court may order for maintenance under sections 24 and 25 and settlement of property
under section 27 of the Hindu Marriage Act, 1955. This cannot be done under section 18 of thehindu Adoptions and
Maintenance Act, 1956. Further, if cohabitation is not resumed for a period of one year or more after a decree for
judicial separation, parties may obtain divorce. This cannot be done under section 18(2), even if the wife lives
separate from her husband for any number of years.
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Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

Judicial Separation
Except the Muslim law, all other Indian Matrimonial statutes, contain a provision for judicial separation, though
provision is not identical in all statutes. Under Muslim law there is nothing like a decree of judicial separation. Under
the Hindu Marriage Act, 1955, a wife or husband can sue for judicial separation on any one of the fault grounds
stated in section 13(1), and wife can also sue for judicial separation on any one of the additional fault grounds laid
down in section 13(1). Under thespecial Marriage Act, 1954 also the husband and wife can sue for divorce on any
one of the fault grounds laid down in section 27(1) and wife can also sue on any fault ground laid down in section
27(1A). In addition, the husband or wife can sue for judicial separation on the ground of failure to comply with a
decree for restitution (no period has been prescribed).

Under the Indian Divorce Act, 1869, grounds on which judicial separation decree may be obtained are: adultery,
cruelty and two years’ desertion.

Hindu Marriage Act

Section 10 of the Hindu Marriage Act, 1955 which contains the provision regarding judicial separation runs:
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present
a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of
section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as
grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to
cohabit with the respondent, but the court may, on the application by petition of either party and on being
satisfied of the truth of the statements made in such petitions rescind the decree if it considers it just and
reasonable to do so.

In a case, there was dispute as to alleged leaving of matrimonial home by wife. The evidence was re-appraised by
the Supreme Court. It was found that the witness had deposed that the wife went away with her brother. It was
observed that inference of abandonment of matrimonial home was not justified. Such inference could not be based
on uncorroborated testimony of the complainant.1

Special Marriage Act

Section 23 of the Special Marriage Act, 1954 dealing with judicial separation runs:
(1) A petition for judicial separation may be presented to the district court either by the husband or the wife,—
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of section 27 on which a
petition for divorce might have been presented; or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and the court, on
being satisfied of the truth of the statements made in such petition, and that there is no legal ground
why the application should not be granted, may decree judicial separation accordingly.
(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to
cohabit with the respondent, but the court may on the application by petition of either party and on being
satisfied of the truth of the statements made in such petition rescind the decree if it considers it just and
reasonable to do so.

Parsi Marriage and Divorce Act

Section 34 of the Parsi Marriage and Divorce Act, 1936, which contains the provision for judicial separation, runs:
 Page 6 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

Any married person may sue for judicial separation on any of the grounds for which such person could have filed a
suit for divorce.

*Divorce Act
Sections 22 and 23 of the Indian Divorce Act, 1869 contain the provisions for judicial separation. Section 22 runs:

No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial
separation, on the ground of adultery, or cruelty, or desertion 1[***] for two years or upwards, and such decree shall have
the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.

Section 23 runs:

Application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition
to the District Court 2[***]; and the court, on being satisfied of the truth of the statements made in such petition, and that
there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

These grounds would be discussed in the next Chapter of this work.

Petition for Divorce and Alternative Relief of Judicial Separation

Sometimes question arises in a petition for divorce as to whether the court is competent to grant judicial separation,
say, in a case where the petitioner has not been able to establish a ground of divorce but has succeeded in
establishing a ground for judicial separation, or where the petitioner changes his mind during the course of
proceedings and seek judicial separation and not divorce, though he has succeeded in establishing the ground. It is
an established view that the court has such power. In Vira Reddy v. Kistamma3 the Madras High Court took the
view that the petitioner in a petition filed for divorce could seek the relief of judicial separation even at the appellate
stage. Chander Prakash v. Sudesh4is an interesting case in the sense that the Delhi High Court passed a decree
for judicial separation when at appellate stage it felt that the ground of divorce was not established, and then the
Division Bench passed a decree of divorce on an altogether different ground. On the letters patent appeal, the
Division Bench held that the decree of the High Court would be effective from the date the trial court passed the
decree. In this case the trial court had granted a decree of divorce. The interesting aspect of the case is that by the
time the letters patent appeal came for hearing, a period of two years had elapsed since the passing of the decree
of judicial separation (since the court took the view that the decree of judicial separation would be effective from the
date on which the trial court passed the decree of divorce), the Court said that it could not pass a decree of divorce
under section 13(1A)(i) of the Hindu Marriage Act, 1955 and accordingly it passed a decree of divorce. Obviously,
the Court passed a decree of divorce on a ground which was not taken in the original petition and, in fact, could not
have been taken as it did not exist at that time.

The Marriage Laws (Amendment) Act, 1976, has inserted a new section in the Special Marriage Act, 19541 and the
Hindu Marriage Act, 19552 to give statutory recognition to the judiciary-evolved law.

Section 27A of the Special Marriage Act, 1954 runs:

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce except in so far as the
petition is founded on the ground mentioned in clause (h) of sub-section (1) of section 27, the court may, if it considers it
just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Section 13A of the Hindu Marriage Act, 1955 runs:

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar as the
petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it
considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
 Page 7 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

It should be noticed that under the Hindu Marriage Act, if a petition for divorce is filed on the ground of change of
religion, renunciation of the world or presumption of death, the court has no power to pass a decree of judicial
separation in place of decree for divorce. Similarly, under the Special Marriage Act, 1954 the court has no power to
pass a decree of judicial separation in a petition for divorce on the ground of presumption of death.

No other Indian matrimonial statute contains a similar provision. But the courts have inherent power to award a
lesser relief when greater is asked.

A decree of Judicial Separation does not need confirmation by the High Court.—A decree for divorce under
the Divorce Act, 1969 needs confirmation by the High Court, but decree of judicial separation does not need such
confirmation3. It comes into effect from the date it is passed.

1 404 P 2d 610 (1965), p. 46.

1 Biswanath Mitra v. Anjali Mitra, AIR 1975 Cal 45 [LNIND 1974 CAL 75].
2 Maintenance Agreements Act, 1957. See also Matrimonial Proceedings and Property Act, 1970.
3 M. Narasimha Reddy v. M. Boosamma, AIR 1976 AP 77 [LNIND 1975 AP 41]: 1975 Andh LT 218 [LNIND 1975 AP
41]. However, this is not so in England: See Matrimonial Causes Act, 1973, section 18(2).
4 Section 23 of the Indian Contract Act, 1872.
1 Galloway v. Galloway, (1914) 30 TLR 53.
2 Fearson v. Aylesford,(1884) 14 BD 792.
3 (1954) 2 QB 118.
4 See Coombe v. Coombe, (1915) 2 KB 215 ; Bennett v. Bennett, (1952) 1 KB 249.
5 Hyman v. Hyman, (1929) AC 601.
6 Morton v. Morton (No. 2), (1954) 1 WLR 737; Gorman v. Gorman, (1964) 1 WLR 1440.
7 Tulip v. Tulip, (1951), p. 378.
8 Section 25 of the Hindu Adoptions and Maintenance Act, 1956.
1 Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244 : (1980) 1 Cal LJ 446: (1980) 2 Cal HN 69: 1980
Hindu LR 433.
2 Kisanji Mohanlal v. Lakshmi, AIR 1931 Bom 286 : 33 Bom LR 510, and Sathyabhamma v. Keshavacharya, ILR (1915)
39 Mad 358, hold that maintenance cannot be allowed, while Shivlal Bhurabhai v. Bai Sankli, AIR 1931 Bom 297 : 33
Bom LR 490; Subbayyan v. Ponnuchari, AIR 1941 Mad 727, and Thakur v. Dharma, AIR 1953 All 134 [LNIND 1952
ALL 94], hold that maintenance may be allowed.
3 For instance, see the English cases May v. May, (1929) 2 KB 386; Admas v. Admas, (1941) 1 All ER 334.
4 Negus v. Forster, (1882) 46 LT 675.
5 Lidington (in re:), (1940) 3 All ER 600; Kirk v. Eustance, (1937) 2 All ER 715 : (1937) AC 491 (House of Lords).
6 Section 1(2).
7 See Chapter XVI of this work.
8 Rose v. Rose, (1883) 8 PD 98; Rowley v. Rowley,(1866) LR I SC & Div 63 (House of Lords).
1 See Batesman v. Rose, (1913) Bow 235.
2 See Lush Husband and Wife, 438-444 (4th Edn.); Also see Negus v. Forster, (1882) 46 LT 675, and Nicol v. Nicol,
(1886) 31 Ch D 524.
3 Pardy v. Pardy, (1939) 2 All ER 779.
4 Fearson v. Aylesford, (1884) 14 BD 792.
5 Hunt v. Hunt, (1987) 2 QB 547 .
6 (1954) 1 WLR 737.
1 See sections 13-15.
 Page 8 of 8
Chapter VI SEPARATION AGREEMENTS AND JUDICIAL SEPARATION

2 Sections 34-36.
3 Sauders v. Sauders, (1852) 16 Beav 207.
1 In Rohini Kumari v. Narendra Singh, AIR 1972 SC 459 [LNIND 1971 SC 615]: (1972) 1 SCA 152 [LNIND 1971 SC
615]: 1972 (1) SCJ 487 [LNIND 1971 SC 615]: (1972) 2 SCR 657 [LNIND 1971 SC 615]: (1972) 1 SCC 1 [LNIND 1971
SC 615], the Supreme Court said that section 18(2) of the Hindu Adoptions and Maintenance Act, 1956 is not controlled
by section 10 of the Hindu Marriage Act, 1955.
2 Section 10 of the Hindu Marriage Act, 1955.
3 Section 23.
1 Kistamma v. Dr. H.T. Vira Reddy, (1971) 3 SCC 968.
* The word “Indian” omitted by Act 51 of 2001 (w.e.f. 3-10-2001).
1 The words “without reasonable excuse” omitted by Act 51 of 2001, sec. 17.
2 The words “or the High Court” omitted by Act 51 of 2001, sec. 18.
3 AIR 1969 Mad 235 [LNIND 1968 MAD 7]: (1969) 1 MLJ 366 [LNIND 1968 MAD 7]: 81 Mad LW 490.
4 AIR 1971 Del 208 [LNIND 1970 DEL 252]: 73 Punj LR (D) 169.
1 Section 27A.
2 Section 13A.
3 Benzmin v. Rundbhai, AIR 1989 MP 25 [LNIND 1987 MP 275]: (1988) 24 Reports 411: 1988 MPLJ 500 [LNIND 1987
MP 275]: (1988) 2 Cur CC 786.

End of Document
 Chapter VII FAULT GROUNDS OF DIVORCE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter VII FAULT GROUNDS OF DIVORCE

It has been seen in Chapter I, that under all the Indian Personal laws dissolution of marriage is based on guilt or
fault theory of divorce. It is only under the Hindu Marriage Act, 1955, thespecial Marriage Act, 1954, and the Parsi
Marriage and Divorce Act, 1936 that divorce by mutual consent and divorce on the basis of irretrievable breakdown
of marriage are also recognized. Under the Dissolution of Muslim Marriage Act, 1939 under which wife alone can
sue for divorce, the grounds are all fault ground. Muslim law also recognizes divorce by mutual consent, though the
concept is somewhat different. Muslim law also has its version of breakdown of marriage principle of divorce. In this
Chapter we would discuss the fault grounds of divorce.

Hindu Law
The Hindu Marriage Act, 1955, recognizes nine-fault grounds of divorce which are available to both the spouses1
and four-fault grounds are available to the wife alone2.

An issue was raised in Gaurav Nagpal v. Sumedha Nagpal3 that section 13 was conceived as a provision to
strengthen the institution of marriage. Since there is phenomenal increase in the breakdown of marriages, this
provision is not serving its purpose, therefore, it should be scrapped. The Supreme Court held that validity of this
provision cannot be questioned. But work has to be done at various other levels to strengthen the institution of
marriage.

Section 13(1) of the Hindu Marriage Act, 1955 under which either spouse can seek divorce runs:

Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the other party:—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or
her spouse; or

(ia) has, after the solemnization of marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering

Continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.

Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
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Chapter VII FAULT GROUNDS OF DIVORCE

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) .has not been heard of as being alive for a period of seven years or more by those persons who would naturally
have heard of it, had that party been alive.

Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.

Divorce Cases
The Apex Court held that the phenomenal increase in divorce cases, has generated the apprehension that the
provision relating to divorce (Section 13) is breaking homes rather than saving them. But that does not make the
section invalid. Actions may be bad, but not the section.1

Dissolution of Marriage
Refusing to grant divorce to the wife, the court held that the husband contracting second marriage and refusal of the
wife to live with the husband is not per se sufficient to grant a decree of divorce. However, wife can claim
maintenance on the ground of refusal to share conjugal home with co-wife and it is a duty of the husband to set up
a separate residence for wife.2

To satisfy the requirement of clause (i-a) of sub-section (1) of section 13 of the Act, it is not as though the cruel
treatment for any particular duration or period has been statutorily stipulated to be necessary. As to what constitute
the required mental cruelty for purposes of the said provision, will not depend

upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the
intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental
attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of
ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or
persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious
and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of
matrimonial home is not possible any longer. A conscious and deliberate statement levelled with pungency and that
too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no
consequence merely because it came to be removed from the record only. The allegations levelled by husband in
written statement and the incidents enumerated in the case on hand, apart from they being per se cruel in nature,
on their own also constitute an admission of the fact for quite some time past the husband had been persistently
indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with
intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. They
continued on record and the indelible impact and scar it initially should have created, cannot be said to have got
ipso facto dissolved, with the amendments ordered.1

In all matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia...... etc., normally
without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation
made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to
substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such
medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as
enshrined under article 21 of the Constitution of India, then it may in most of such cases become impossible to
arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when
there is no right to privacy specially conferred by article 21 of the Constitution of India and with the extensive
interpretation of the phrase “personal liberty” this right has been read into article 21, it cannot be treated as absolute
right. What is emphasized is that some limitations on this right have to be imposed and particularly where two
competing interests clash. In matters of aforesaid nature where the Legislature has conferred a right upon his
spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-
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Chapter VII FAULT GROUNDS OF DIVORCE

called right to privacy of the respondent. Thus, the Court has to reconcile these competing interests by balancing
the interests involved. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who
may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the
question of such action being violation of article 21 of the Constitution of India would not arise. The Court having
regard to article 21 of the Constitution of India must also see to it that the right of person to defend himself must be
adequately protected.1

Section 13(2) under which wife alone can seek divorce runs:

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married
again before such commencement or that any other wife of the husband married before such commencement
was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956), or in a proceeding
under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since
the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards;

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and
she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Special Marriage Act

Section 27(1) of the Special Marriage Act, 1954 containing ten-fault grounds of divorce on which either spouse can
seek divorce, runs:

Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district
court either by the husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or
her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal
Code;

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
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Chapter VII FAULT GROUNDS OF DIVORCE

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form; or

(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally
have heard of the respondent if the respondent had been alive.

Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to
the marriage without reasonable cause and without the consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate
expressions shall be construed accordingly.

Section 27(1A) of the Special Marriage Act, 1954 which contains two-fault grounds on which wife alone can seek
dissolution of marriage runs:

A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956), or in a proceeding
under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since
the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards.

Muslim Law
The Dissolution of Muslim Marriage Act, 1939 contains nine-fault grounds on which wife alone can sue. Section 2 of
the Act runs:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or
more of the following grounds, namely:—
(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three
years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal
disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount
to physical ill-treatment, or
 Page 5 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

Provided that—

(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such
decree, and if the husband appears either in person or through an authorised agent within that period
and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the
said decree; and
(c) before passing a decree on ground (v) the court shall, on application by the husband, make an order
requiring the husband to satisfy the court within a period of one year from the date of such order that
he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree
shall be passed on the said ground.

Christian law*
Sub-section (1) of section 10 of the Divorce Act, 1869, which contains the ground of divorce which runs:

1[Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the commencement of the
Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife,
be dissolved on the ground that since the solemnization of the marriage, the respondent—
(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the
presentation of the petition; or

(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering
from a virulent and incurable form of leprosy; or

(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering
from venereal disease in a communicable form; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally
have heard of the respondent if the respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the
passing of the decree against the respondent; or

(iX) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for the petitioner to live with the respondent.

(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.]
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Chapter VII FAULT GROUNDS OF DIVORCE

In Reynold Rajmani v. Union of India2, the Supreme Court held that section 7 of the Act (now omitted by Act 51 of
2001, sec. 4) did not have the effect of engrafting into the Indian law, the substantive grounds for divorce which
were introduced into English statutes from time to time. This question was again raised before a Special Bench of
the Andhra Pradesh High Court in Amarthala Hemalatha v. Dasari Balu Rajendra Varaprasad1. In this case the trial
court has granted a decree of divorce on the ground of non-resumption of cohabitation for a period of four years
after a decree for judicial separation. Quashing the judgment and decree, the Special Bench said that there was no
provision in the Indian Divorce Act, 1869 which enables the wife or the husband to seek divorce in the same
manner as is provided in thehindu Marriage Act, 1955 or thespecial Marriage Act, 1954 for non-resumption of
cohabitation for a specified period after passing of a decree for judicial separation. Under section 7 of the Indian
Divorce Act, 1869, the principles of English law are applicable to cases under this Act but they are limited to
procedural provisions and not to substantive law. Therefore, the Court committed illegality in granting decree for
divorce to wife for non-resumption of cohabitation by taking recourse to provisions of English law. It is submitted
that looking purely from the mechanical interpretation of law, judgment may not be faulted but modern courts
engaged as they are in social engineering, owe this duty to the people that by giving a progressive twist to the
provision of law they bring it in conformity with the contemporary social needs. In this respect the judgment of the
trial court deserves appreciation.

Parsi Law
The Parsi Marriage and Divorce Act, 1936, contain ten-fault grounds of divorce on which either spouse may seek
divorce. Section 32 runs:

Any married person may sue for divorce on any one or more of the following grounds, namely:—

(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of
the defendant to consummate it;

(b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of
the suit:

Provided that divorce shall not be granted on this ground, unless—

(1) the plaintiff was ignorant of the fact at the time of the marriage, and

(2) has filed the suit within three years from the date of the marriage;

(bb) that the defendant has been incurably of unsound mind for a period of two years or upwards immediately
preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such
kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.

Explanation.—In this clause,—

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of psychopathic
disorder or any other disorder or disability of mind and includes schizophrenia;

(ii) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the defendant, and whether or not it requires or is susceptible to medical treatment;
(c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff:

Provided that divorce shall not be granted on this ground, unless—

(1) the plaintiff was at the time of the marriage ignorant of the fact alleged,

(2) the suit has been filed within two years of the date of marriage, and

(3) matrimonial intercourse has not taken place after the plaintiff came to know of the fact;

(d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural
offence:
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Chapter VII FAULT GROUNDS OF DIVORCE

Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the
plaintiff came to know of the fact;

(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in
such a way as to render it in the judgment of the court improper to compel the plaintiff to live with the defendant:

Provided that in every suit for divorce on this ground it shall be in the discretion of the court whether it should grant
a decree for divorce or for judicial separation only;

(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the
plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to
prostitution:
Provided that divorce shall not be granted on this ground if the suit has been filed more than two years (i) after the
infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or (iii) after the last act of
compulsory prostitution;
(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in
the Indian Penal Code (45 of 1960):

Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit
undergone at least one year’s imprisonment out of the said period;

(g) that the defendant has deserted the plaintiff for at least two years;

(h) that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the
plaintiff, and the parties have not had marital intercourse for one year or more since such decree or order;

(i) [x x x]

(j) that the defendant has ceased to be a Parsi by conversion to another religion:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the
plaintiff came to know of the fact.

Foreign Marriages
The Foreign Marriage Act, 1969, provides facility of the marriage of the Indian citizen abroad. Under the Act it is
necessary that one of the parties to the marriage should be Indian citizen for matrimonial causes, the provisions of
thespecial Marriage Act, 1954, have been made applicable1. In other words, a marriage solemnized under the
Foreign Marriage Act, 1969, may be dissolved on the same grounds as a marriage solemnized under thespecial
Marriage Act, 1954.

Divorce on grounds not specified.—It has been held that divorce cannot be obtained on grounds not specified in
the statute2.

Adultery
Adultery is a ground of divorce under Hindu Marriage Act, 1955,Special Marriage Act, 1954,*Divorce Act, 1869, and
the Parsi Marriage and Divorce Act, 1936. Under the Dissolution of Muslim Marriages Act, 1939 adultery as such is
not a ground of divorce but husband’s association with women of evil repute or his leading an infamous life is a
ground of divorce, though it is considered to amount to cruelty under the Act—it is something akin to living in
adultery3.

The wording of the clause in different matrimonial statutes is somewhat different (though under the Hindu Marriage
Act, 1955 andspecial Marriage Act, 1954 the clauses have identical language), but basically they have the same
meaning. Under the Hindu Marriage Act, 19554 and the Special Marriage Act, 19545clause is worded thus:
respondent has, after the solemnization of marriage, had voluntary sexual intercourse with any person other than
his or her spouse. Under the Parsi Marriage and Divorce Act, 19366the language of the clause is different:
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Chapter VII FAULT GROUNDS OF DIVORCE

defendant has since the marriage committed adultery, but under Parsi Law divorce will not be granted on the
ground if the suit for divorce has been filed more than two years after the plaintiff came to know of the fact, while
under the *Divorce Act, 1869 the clause runs: the other party, since the solemnization of the marriage the
respondent has committed adultery7.

Adultery And Judicial Separation.—Under the Hindu Marriage Act, 1955, thespecial Marriage Act, 1954 and
*Divorce Act, 1869 adultery is also a ground for judicial separation1.

Adultery: Criminal And Matrimonial Offence.—It is not in all countries that adultery is a criminal offence. In some
countries, just as England, it is merely a civil wrong, entitling the aggrieved person to claim damages. But the
matrimonial offence of adultery or the fault ground of adultery, as recognized in most of the countries. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in most unequivocal
terms.

The scope and exact contents of criminal offence of adultery vary from country to country. Adultery may be
committed by the wife or the husband. But in all countries the degrees of guilt or the nature of offence is not the
same. Even the nature of the relief is not similar. In some countries the wife or the husband is as much guilty of the
offence as the third person with whose co-operation the offence is committed. But in India it is not so. Section 497
of the Indian Penal Code, 1860 runs:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of
another man without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape,
is guilty of the offence of adultery.

Thus under section 497 of the Indian Penal Law:

(a) an adultery can be committed only by a man and not by woman,
(b) the person committing adultery must also know or should have reason to believe that woman with whom
he had intercourse is the wife of another man, and
(c) the sexual intercourse should not amount to the offence of rape.

The complainant-husband can only vindicate himself if he can establish the above, otherwise his complaint would
fail.

What is most significant in the penal offence of adultery is that invariably the husband takes his vengeance against
the third person, i.e., the adulterer; though in some jurisdictions he may also be able to reap it against the wife. But
in most cases the main target of his vengeance is the adulterer.

The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even
as an abettor. In the matrimonial court when a petition is filed for the matrimonial relief of judicial separation or
divorce on the ground of adultery, the main relief is sought against the spouse and not against the adulterer,
though, in most systems, adulterer, if known, is a necessary party to proceedings and must be made a co-
respondent. Where the husband had not made the adulterer a co-respondent nor did he seek exemption under
section 11, *Divorce Act, the petition was held not maintainable.*

It is in this aspect that the matrimonial offence of adultery is different from the criminal offence. In the matrimonial
court when a person accuses his spouse of adultery his or her main target is not the adulterer or adulteress, but the
wife or the husband. It is alleged that since the respondent is guilty of the matrimonial offence of adultery, the
petitioner is entitled to relief against him or her. The adulterer or the adulteress is made merely a co-respondent,
and that too is not always necessary.

Since both under penal law and matrimonial law, adultery is an offence against marriage, it is necessary to
establish that at the time of the act of adultery the marriage was subsisting. What is also essential to establish in the
matrimonial offence of adultery is that the sexual intercourse was willingly indulged into by the respondents. If the
wife can establish that she was raped by the co-respondent, then the husband would not be entitled to divorce.

Further, in a petition for dissolution of marriage it is not necessary, nor is it material, to prove that the co-respondent
had knowledge or reason to believe that the respondent was the wife or husband of the petitioner. If the respondent
had intercourse with the co-respondent with the full knowledge that he or she was not the husband or wife, then the
petitioner would be entitled to the relief. But, if the wife can prove that she was incapable of understanding the
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Chapter VII FAULT GROUNDS OF DIVORCE

nature of the sexual act of adultery the court would refuse a decree. If a person has intercourse with a married
woman by personating to be her husband, then the offence of adultery is not committed, and the petitioner would
not be entitled to divorce. It seems difficult for a man to establish that he was forced. But if he can establish that in
fact he was forced, the court would not grant the relief to the wife.

Adultery under the Divorce Act

Under erstwhile2section 10 of the Act, while a husband was entitled to dissolution of marriage on the ground of
wife’s adultery, the wife was not so entitled unless she proved that husband’s adultery was either incestuous or
coupled with cruelty or bigamy or desertion. In other words, husband was entitled to dissolution on the ground of
adultery simpliciter on the part of the wife, but the wife was not so entitled unless some other matrimonial fault was
also found to be super-added. The courts ever since 1989 took notice of this discriminatory provision1. Later a
special Bench of Kerala High Court2 held this provision to be discriminatory and violative of article 15 of the
Constitution. Taking clue from the Kerala, Bombay High Court3 and Andhra Pradesh4 High Court also declared this
provision to be violative of Constitution.

Ultimately Parliament amended this Act by Act 51 of 2001 and have made grounds for seeking divorce same for
both the husband and wife.

Definition of adultery in matrimonial law.—As late as in 1954, an English Judge, Karminski, said that “nobody
has yet attempted to define adultery and I do not propose to rush in where wiser men have not”1, yet adultery is one
of three traditional fault grounds elements of which are clear and have not posed much difficulty of interpretation. In
adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether
unmarried or married, of the opposite sex not being the other’s spouse, during the subsistence of marriage. The
sexual intercourse contemplated under the matrimonial ground of adultery is with a non-spouse. Thus intercourse
with the former or later wife of a polygamous marriage (where polygamy is recognized) is not adultery. But if the
second marriage is void, then sexual intercourse with the second wife will amount to adultery.

Voluntary consensual sexual intercourse.—Extra-marital sexual intercourse is an essential element of adultery.

Adultery presupposes carnal union between a man and a woman. Mere attempt at sexual intercourse will not
amount to adultery. Some penetration, howsoever brief, must take place though full penetration is not required2.
Similarly, mere indecent familiarities (such as mental masturbation) even if they give the parties sexual satisfaction
is not adultery3. If wife is raped, she is not guilty of adultery.4 It is complete defence to the charge of adultery in
matrimonial law that the wife-respondent was raped5. If a person lacks mental capacity to consent, such as, a minor
or person of unsound mind, the intercourse will not be voluntary6. Thus a girl aged 12 years who is, in law, not
capable of consenting to sexual intercourse, cannot be guilty of adultery7. Similarly, a woman who has been
administered drinks and thus got drunk and then had sex act, she is not guilty of adultery. But if she has got drunk
voluntarily, with the knowledge that it is likely to inflame her passions, she would be guilty of adultery if she indulges
in sexual intercourse, even if at the time of the act she was so drunk as to be incapable of giving her consent8. The
same, it seems, would apply to taking of drugs9.

It has been seen earlier that the requirement of adultery is that there should be some penetration in the female
organ by the male organ. But whether something less than this would also amount to adultery, the English
decisions are not clear. The decisions of Indian courts also do not provide clear guidance. But in Rutherford v.
Richardson10, the House of Lords said that adultery is committed even though there is no penetration by “some
lesser act of sexual gratification”. The English courts, in some cases, have gone to the extent of saying that
voluntary submission to or participation to intimate physical contact would amount to adultery. A lesser act of sexual
intercourse would in most cases amount to cruelty1. In Subbaramma v. Saraswathi2, the Madras High Court
observed:

The unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken
into account. If an unrelated person is found alone with a young wife, after midnight, in her bedroom in an actual physical
juxtaposition unless there is some explanation forthcoming for this which is compatible with an innocent interpretation, the
only interpretation that a court of law can draw must be that two were committing an act of adultery together.

It is submitted that for the constitution of the offence of adultery some penetration full or minimal, or at least invasion
of genital organs by another human being for some sexual gratification is necessary, but no one has yet suggested
that when a surgeon or obstetrician inserts an instrument in the vagina it amounts to “penetration”.
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Chapter VII FAULT GROUNDS OF DIVORCE

AID and Adultery.—An interesting question has come before some courts abroad: whether AID (meaning of this
term has been given in Chapter IV of this work under the title “AID and AIH and Consummation of Marriage”)
without the permission of the husband amounts to adultery.

The question came up before a Canadian court in Oxford v. Oxford3. It observed:

Essence of the offence of adultery consists not in the moral turpitude of the act of sexual intercourse but in the voluntary
surrender to another person of the reproductive powers or faculties of the guilty person; and any submission of those
powers to the service or enjoyment of any person other than the husband or the wife comes within the definition of
“adultery”4.

The court further observed:

So long as nothing takes place which can by any possibility affect that function, there can be no adultery; so that, unless
and until there is actual sexual intercourse, there can be no adultery5.

However, the court added significantly:

But to argue, from that, that adultery necessarily begins and ends there, is utterly fallacious. Sexual intercourse is
adulterous because in the case of the woman it involves the possibility of introducing in the family of the husband a false
strain of blood. Any act on the part of the wife which does that would, therefore, be adulterous*** 5.

This adds a new dimension to the existing definition of adultery. This theme was more forcefully advanced by the
Lord Archbishop of Canterbury, who observed:

‘Adultery’ is the surrender outside the bonds of wedlock, and in violation of it, either of the sexual organs alone... or of the
reproductive organs alone by AID or, of course, of both, as in normal intercourse. If that be so, AID is adultery1.

Refuting the argument in favour of AID that it relieves the parties of a childless marriage from psychological strains
and stress of childlessness, the Lord Archbishop of Canterbury observed that a husband often has a great longing
to have children, which is sometimes frustrated by the sterility of his wife but no one has yet suggested that he
should relieve his frustration by introducing into his family a child whom he has fathered by AID on another woman.
He has to bear his frustration, and so should the wife2. G.P.R. Tallin, a Canadian jurist, also holds the view that
artificial insemination amounts to adultery3. According to him:

Sexual intercourse without risk of pregnancy, and risk of pregnancy without sexual intercourse, may be equally destructive
of a happy marriage relationship, and it may, therefore, be that either would constitute adultery4.

He asserts that there can be one test and one test only of adultery, viz., “whether the conduct in question involves
the risk of pregnancy”5.

In the contemporary society all over the world “adultery” means consensual sexual intercourse between a spouse
and a non-spouse with any degree of penetration (may be so minimal as the male organ touching the lips of
vagina). If sexual intercourse is indulged in without any risk of pregnancy (such as in the case of a sterile adulterer
or sterilized adulterer or when the wife is sterile or sterilized) we cannot say that it is not adultery. In case the
adulterer or the woman (wife) is sterile or sterilized there is absolutely no risk of pregnancy, and therefore,
according to the “one and the only one” test of Tallin in such a case there will be no adultery. Not merely this, the
modern technology of contraceptives has almost completely avoided any risk of conception. Then, it seems,
according to Tallin’s formulation, the extra-marital consensual sexual intercourse ceases to be adultery.

In this context the most sensible decision, is that of the Court of Session at Edinburgh in Maclennan v. Maclennan1.
In this case husband petitioned for divorce on the ground of wife’s adultery. He averred that he was not capable of
procreating but his wife had given birth to a child. The wife, in reply, averred that the child was the off-spring of AID
which she resorted to with her husband’s consent. The husband’s argument was that he did not consent to AID,
and AID was adultery in the eyes of law. The court rejected his argument that AID amounted to the matrimonial
offence of adultery and formulated the following propositions:—
(i) for adultery to be committed there must be two parties physically present and engaging in the sexual act at
the same time;
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Chapter VII FAULT GROUNDS OF DIVORCE

(ii) to constitute the sexual act, there must be an act of union involving some degree of penetration of the
female organ by the male organ;
(iii) it is not a necessary concomitant of adultery that the male seed should be deposited in the female ovum (if
this will not be so sterile or sterilized people will never be guilty of adultery); and
(iv) the placing of the male seed in female ovum need not necessarily result from the sexual act, but it may be
placed there by another means (such as by artificial insemination), when there is no sexual intercourse.

It is submitted that this is the correct view. Once one falls to the temptation of the “one and the only one test” of
“conduct in question involving the risk of pregnancy”, it will lead to many bizarre consequences. Is the donor of the
seed an adulterer, and therefore, a necessary party to the husband’s petition for divorce on the ground of wife’s
adultery? If the argument of AID constituting adultery is taken to its logical end, one would have to agree that
adultery will not be committed till the male seed is inserted in the woman, then suppose by that time (since with the
aid of modern technology the sperm can be preserved for a long time in deep-freeze) the seed is inserted, the
donor is dead, will the woman be guilty of necrophilism—sexual intercourse with a dead man?

However, this does not mean that law should not help a husband whose wife resorts to AID without his consent.
Such an act of wife creates a serious rupture in married life and may cause great agony and anguish to the
husband. In the Maclennan case2 that Edinburgh court very rightly observed that a married woman commits a grave
and heinous offence against the marriage contract by submitting to AID without her husband’s consent. It may be
interesting to note that the Royal Commission on Marriage and Divorce, 1951-1955 suggested that AID by a wife
without the consent of her husband should be made a separate ground for divorce or judicial separation. This view
was endorsed by a departmental committee appointed pursuant to a resolution of February 1958 of the House of
Lords when it discussed the decision in the Maclennan case where the Court expressed the view that this is a
matter which needed legislative measures1. It is submitted that this is the most sensible suggestion and the law can
squarely meet the challenge of genetic engineering thereby2.

It is submitted that, in any case AID without the consent of the husband would amount to cruelty.

Adultery and living in adultery.—Under the present Indian matrimonial statutes one act of adultery is enough to
constitute a ground of divorce. Under the original Hindu Marriage Act, 1955 the ground was “living in adultery.”
“Living in adultery” means a continuous course of adulterous relationship as distinguished from “one or two lapses
from virtue”3. It has been defined to mean “a course of adulterous conduct over some period with repetition of acts
of adultery with one or more persons”4.

Pleadings.—The requirement of pleadings in matrimonial laws are different from those of the penal law. In a
petition for dissolution of marriage or judicial separation on the ground of adultery of the respondent, it is necessary
for the petitioner to aver that the marriage ceremony was performed between the respondent and the petitioner (the
certificate of marriage or registration may be submitted), the specific instance or instances of adultery together with
the time and place; the names and dates of birth of children; the domicile (or residence) of the husband; address of
last place where the petitioner and the respondent last cohabited, particulars of previous matrimonial proceedings if
any, and a statement that there is no connivance, condonation, or delay on the part of the petitioner. The name and
full address of the co-respondent has also to be given. Each petition has to be verified in the manner required by
law for the verification of plaints. In short, pleadings should be specific and not vague. The pleadings should furnish
particulars of adultery. If this not done, petition will not succeed5.

In a complaint for the penal offence of adultery, the complainant has to specifically state that a ceremony of
marriage was undergone by him and his wife and he has to allege the specific instances of adultery together with
the time and place of such instances6.

Thus, though the basic facts alleged in the petition for divorce or the criminal complaint are the same, there is a
difference between pleadings of both proceedings. The pleadings in the matrimonial court have become very
technical in England, and those technicalities have been imported into the Indian law by the enactments on the
subject and the rules framed thereunder.

The consent or the connivance on the part of the complaint or the petitioner disentitles him to the relief. But in the
criminal offence of adultery, it is for the accused to prove that there was connivance or consent on the part of the
complainant. But in a petition for divorce, it is for the petitioner to prove that there is no connivance or consent on
his part. If he has connived in the offence or if he has condoned the offence, or has been accessory to it, then he
would not be entitled to relief.
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Chapter VII FAULT GROUNDS OF DIVORCE

Proof.—In both the criminal and matrimonial offence of adultery proof of marriage is required.

No direct proof of adultery is necessary if the adulterers are proved to be “in such juxtaposition or associating in
such circumstances that the sexual act may be inferred, the court will usually be satisfied that adultery has
occurred”. In Swapna Ghosh v. Sadananda Ghosh1, the wife found her husband and the adulteress to be lying in
the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as
husband and wife is sufficient evidence of adultery. The fact of the matter is that direct proof of adultery is very
rare2. Even when the direct proof of adultery is produced the court would look upon it with suspicion, as it is very
highly improbable that any person could be a witness of such acts which are, by their very nature, performed in
utmost secrecy. The court would require corroboration of direct evidence of adultery3.

Proof of a single act of adultery is enough4. Proof of adultery is essential. Merely because wife remained ex parte, a
decree of divorce cannot be granted5. Mere doubt by husband cannot be dubbed as adultery.6 The allegations
levelled have to be proved. This is true in respect of both the matrimonial and criminal offence of adultery.

The offence of adultery may be proved by:

(a) circumstantial evidence,
(b) by evidence as to non-access and birth of the child,
(c) contracting venereal disease,
(d) by evidence of visits to brothels,
(e) confession and admissions of parties, and
(f) preponderance of probability.

The decrees and admissions made in previous proceedings are also relevant facts.

Circumstantial evidence.—Adultery can be proved by circumstantial evidence7. Where a husband occupies a

room at night with a woman not his wife the court would usually infer that adultery was committed8. Indecent
behaviour or familiarities short of sexual intercourse raise a very strong presumption of adultery, but the court must
be convinced that a wife has transgressed not only bound of delicacy, but of duty, and that there has been
surrender not only of the mind but of the person. Evidence that the accused took up his abode in the house of
another man’s wife, that both slept on the same bed for fifteen days, and that there was considerable attachment
between them is sufficient proof of adultery1. Adultery may be rightly inferred from evidence of opportunity, where
the circumstance are such as would lead a reasonable man to the conclusion that the adultery must have been
committed2.

In some English cases, it has been held that if the wife is a virgo intacha evidence of familiarity is not conclusive of
adultery3. But this could not be the rigid rule. The medical science inform us that there can be sexual intercourse
short of penetration from which pregnancy may result, and if it is so, it would amount to adultery4. It has been held
in England that the fact that woman is found virgin was not a conclusive proof that there was no adultery, as there
might have been some limited intercourse amounting to adultery in law. But it imposes a very heavy burden on the
person charging her with adultery5.

If direct evidence of adultery is lead the court requires corroboration. If the petitioner alleges that he was the witness
of adultery, then the court generally requires some corroborative, such as, compromising letters, or suspicious
circumstances or the evidence of an independent witness6.

The fact that a married woman has been absenting herself from her house for four to six days at a stretch and has
been seen more than once with a total stranger, there being no explanation for this, leads to an irresistible inference
that she had committed adultery7. But in Ramish Francis Toppo v. Violet Francis Toppo8, the Calcutta High Court
said that mere evidence that wife moved freely and had intimate connection with different people does not prove
adultery. However, the circumstances must satisfy that regarded together they lead to an irresistible inference that
adultery must have been committed9. General evidence of the ill-repute of husband or of the lewd company that he
keeps, or even that he knows the address of prostitutes and was seen with lewd women, would neither prove nor
probabilize adultery1. Similarly, mere admission of the wife in crossexamination will not be enough2.

Although circumstantial evidence is sufficient to prove the charge of adultery, in Parvati v. Shiv Ram3, V.K.
Mehrotra, C.J., said that circumstantial evidence should be such that it should lead only to one inference, i.e., the
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Chapter VII FAULT GROUNDS OF DIVORCE

respondent has committed adultery. The mere fact that the wife was seen in the company of the alleged adulterer
or that whenever the husband went to the village of the wife she was not there would not be sufficient to draw
inference. It is submitted that these observations are correct. In N.G. Dastane v. S. Dastane4, it has been laid down
that desertion, cruelty and adultery and other grounds of divorce, need not be proved beyond reasonable doubts.
They can be proved by balance of probabilities or by preponderance of probability5.

Evidence of non-access.—Prior to the decision in Russell v. Russell6, it was the practice of the English Divorce
Court to grant divorce on the evidence of nonaccess, i.e., the wife had given birth to a child and the husband had no
access to her during the relevant period. This decision has altered this rule. However, this decision, too, has been
abrogated by the Matrimonial Causes Act, 1950.

On the other hand under sections 118 and 120 of the Indian Evidence Act, 1872 it is open to the petitioner to give
evidence of non-access to prove the offence of adultery. After the decision in Russell v. Russell7some of the Indian
High Courts in cases coming under the Indian Divorce Act, 1869 expressed the view that they would not accept the
evidence of non-access as by virtue section 7 of the Indian Divorce Act, they were bound to follow the English law.
Now that decision has been abrogated, the controversy should be deemed to have been settled, and the Indian
courts, can accept the evidence of non-access under the Indian Divorce Act, 1869 as well as under thespecial
Marriage Act, 1954 and the Hindu Marriage Act, 1955 and other matrimonial statutes.

In this connection section 112 of the Indian Evidence Act, 1872 is also relevant. It runs:

The fact that any person who was born during the continuance of a valid marriage between his mother and any man, or
within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he
is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any
time when he could have been begotten.

The word ‘access’ was interpreted by the Kerala High Court in Chandramathi v. Pazhetti Balan1, as follows:

Section 112 provides for conclusive proof of legitimacy of a child born during the continuance of a valid marriage. The only
exception contemplated by the section is proof that the parties to the marriage had no access to each other at any time
when the child could have been begotten. That the husband had undergone successful vasectomy operation is a
circumstance which will negative the presumption of the paternity of the child that could have been begotten only after such
operation was evidently not envisaged at the time the section was enacted. The answer, perhaps is that the term “access”
has to be understood as opportunity to procreate and not merely opportunity for sexual intercourse.

No doubt if the wife gives birth to a child and it is proved that the husband could not be the father, that will be
sufficient proof of adultery. However, in order to rebut the conclusive presumption under section 112 of the
Evidence Act, there should be evidence that the husband could not be the father of the child.

In Patta Dhanalakshmi v. Patta Ramachandra Rao2, wife was living in her parents home and became pregnant
without resumption of cohabitation. She averred that the husband used to visit her and stayed the nights. But she
failed to examine her parents or any other person to support her version. Husband was granted divorce on adultery.

In Chiruthakutthy v. Subramanian3, the husband had undergone vasectomy operation on January 1, 1976. While
living together, the wife gave birth to a child on August 30, 1978. The court said that since semen test was not
performed, it cannot be said that wife committed adultery, particularly when parties were having sexual intercourse.
The evidence of one-access should be foul proof. Thus, in Om Parkash v. Roshani4, the husband tried to prove
non-access by showing that for about 3-4 years wife was in desertion and some witnesses stated that thereafter
they had not seen her in the husband’s company. This evidence was not considered to be sufficient to establish
non-access.

A question arose in Dipanwita Roy v. Ronobroto Roy5, whether DNA test of the child born and the father be
permitted to prove adultery (in the judgment word ‘infidelity’ used). In this case it was permitted though the court
sounded caution that such tests should be avoided as they put child’s legitimacy at peril.

Contracting Venereal Disease.—In Jose v. Jose6, the Lahore High Court held that contracting of venereal disease
by either spouse from outside source has always been regarded as a very strong, if not conclusive, evidence of
adultery. In an old English case where the respondent (wife) and co-respondent were both suffering from venereal
disease it was held that it was for the wife to prove that she did not contract that disease from the co-respondent.
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The charge of communicating venereal disease must be specifically pleaded. Visits to Brothels.—If husband or
wife is found visiting brothels, there is a strong presumption that adultery might have been committed. However, the
presumption may be rebutted.

Evidence of children living with mother (or parent).—Children said that mother having illicit relationships. They
found her conduct so reprehensible that they cooked their food separately inspite of living with her. Younger son
also saying the same. Relying on their evidence divorce was granted to husband on the ground of wife’s adultery.1

Confession and Admissions.—The value of admissions and confessions vary in the criminal offence of adultery
and matrimonial offence of adultery. In the criminal offence of adultery, the confession of the accused may be
conclusive proof of adultery. But in the matrimonial offence of adultery, the court would be slow to grant divorce or
judicial separation merely on the basis of confession or admission of the respondent or co-respondent. It may be
that there is a collusion between the parties, and the respondent admits his guilt on that account. No matrimonial
court would grant divorce merely on the ground of admission of the respondent2. It has been held that admission of
his adultery by a husband in a letter is not sufficient for the establishment of the guilt of adultery3. The same is true
about the wife’s confessions. Though there is no legal bar for a court acting upon the admission of the respondent,
the court as a rule requires corroboration4. The circumstances under which a confession is made are, however,
very important. In a case where confession was made with the sole object of obtaining the petitioner’s forgiveness,
it was held to be genuine5.

It may be noted that in the case of matrimonial offence of adultery, there are chances of collusion between the
parties, and the charge may be made with the sole object of getting divorce, and as such the respondent may be
too willing to confess or admit his or her guilt. On account of such considerations, a divorce court is always very
slow to act upon such confessions and admissions. It usually requires corroboration. A divorce court has always to
bear in mind the possibility of collusion and must insist on strict proof of all facts alleged.

The above considerations do not apply in the case of penal offence of adultery. There is absolutely no chance of
any collusion between the complainant and the accused. The only fact which may go in favour of the accused are
the consent or connivance of the complainant in the act of adultery. On account of that reason the confession of the
accused may be enough to establish the offence of adultery.

In Robinson v. Robinson6 Cockburn, C.J., observed:

The Divorce Court is...bound to act on any evidence legally admissible, by which the fact of adultery is established; and if,
therefore, there is evidence, not open to exception, of admission of adultery by the principal respondent, it would be the
duty of the court to act on such admission, although there might be total absence of all other evidence to support them.

In India, the criminal court requires strict proof of adultery, like any other crime, adultery must be proved beyond all
reasonable doubts. Whether the same considerations apply before the matrimonial court? The matter has been
considered in recent years by the Court of Appeal of England, and it has come to the conclusion that the rules of
criminal evidence are not applicable in the matrimonial court. In 1948, in Gineshi v. Gineshi1 Lord Justice Tucker
said:

Adultery was regarded by the ecclesiastical courts as a quasi-criminal offence, and it must be proved with the same
strictness as is required in a criminal case. That means that it must be proved beyond all reasonable doubts to the
satisfaction of the tribunal of fact.

In the same case Mr. Justice Vaisey observed:

The close similarity of the offence of adultery to acts which are properly to be described as criminal to-day is beyond
question. The finding that offence has been committed may be far more serious in consequences both to the individual and
to society then the conviction of a crime. All that is true even in these days, when its seriousness is not so widely
appreciated as it used to be.

In 1949, in Tilley v. Tilley2, the matter again came for consideration before the Court of Appeal where the question
turned upon the condonation and the court held that the fact of condonation when testified by the wife who has
come in the witness-box and therefore need not be corroborated. Lord Justice Denning said:

Although adultery is a high moral offence, it is not a criminal offence, and is not subject to any pains or penalties...In the
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present case, therefore, the wife was a competent and compellable witness and was properly served with a s ubpoena. She
was not bound to answer any questions tending to show that she has been guilty of adultery and in fact she was not
compelled to do so.

In the year 1950, the Court of Appeal again considered the matter in Gower v. Gower3 and laid down the following
principles as regards the standard of proof on an issue of adultery:—
1. Adultery is a civil and not a criminal matter, as decided by the House of Lords in Mordaunt v. Moncreiffe4
and the analogies and precedent of criminal law have no authority in the divorce court.
2. The statutory provision which requires the court on a petition for divorce to be “satisfied on the evidence
that the case for the petition has been proved” puts adultery on the same footing as cruelty, desertion or
unsoundness of mind.
3. The Court of Appeal was competent to reconsider its decision in Gineshi v. Gineshi1.

But in 1954, in Galler v. Galler2, the Court observed:

A witness who gives evidence that he has committed adultery with a party in the suit is in the same position as an
accomplice in a criminal case, and the court must direct itself accordingly before accepting his evidence without
corroboration.

Earlier in 1950, in Davis v. Davis3, a case of divorce on the ground of cruelty, the Court of Appeal observed:

There is a considerable difference between the standard of proof required in criminal cases and that required in a civil
cases...and in considering the standard of proof in divorce cases it is important to remember that it has been held by the
House of Lords in Mordaunt v. Moncreiffe4, that a suit for divorce is a civil and not a criminal proceeding. Gineshi v.
Gineshi***1 gives no authority to the divorce courts to adopt for themselves in all divorce cases the standard of proof in
criminal cases, to say nothing of the rules as to corroboration of accomplices and so forth which apply in criminal courts...If
corroboration were required of all acts of cruelty, it would mean that many petitioners would be unable to prove their cases.
The injuries are often corroborated but not the acts themselves. The Court must be satisfied on the evidence that the
case...has been proved.

There is no doubt that a proceeding before a divorce court is in the nature of civil proceedings. Under both the
Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, the Code of Civil Procedure, 1908 has been made
applicable. But it has to be noted that they are no ordinary civil proceedings. There is no such thing in divorce
proceedings as consent or compromise decree. The court has to be satisfied of the averments of the petition before
pronouncing the judgment. Similarly, strictly speaking there are no ex parte proceedings. Even when the court is
proceeding ex parte against the respondent, it must be satisfied of the averments in the petition, before
pronouncing any order.

In India where adultery is both a criminal and a civil offence, the duty of the courts to maintain the distinction
between the matrimonial offence of adultery and the penal offence of adultery is great. In the criminal proceedings
adultery must be proved beyond all reasonable doubts before the accused is convicted. But the same strictness
may not be necessary in proceedings before the divorce court. There is much force in the observation of Lord
Justice Denning in Davis v. Davis3, when he said that if corroboration would be required of every act it would mean
that many petitions would fail for want of proof. “Injuries are often corroborated, but not the acts themselves.”

The findings of the matrimonial court are only relevant in the proceeding before a criminal court. It may be that
ultimately both the courts may come to different findings. It may be that a person may be acquitted of the offence of
adultery by the criminal court, but the matrimonial court may come to the finding that the offence has been
committed and grant relief to the petitioner. In Coffey v. Coffey1, a case of divorce on the ground of rape, the
divorce court gave a decree to the wife on the ground of raping another woman, even though the husband, when
prosecuted in a criminal court for rape, was found guilty only of indecent assault and the charge of rape was held
not to be proved. It is submitted that the same would be true in the case of adultery. It may be that a criminal court,
where strict proof is necessary, may not convict a person of adultery, but the matrimonial court may give a finding of
adultery in favour of the petitioner.

This distinction between the matrimonial offence of adultery and the criminal offence of adultery has to be kept in
view by our courts, and especially when in almost all the cases the same judge would try the case.
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Preponderance of Probabilities.—It is now established view that adultery may be proved by preponderance of
probability2. In Hargovind Soni v. Ram Dulari3, the court observed that it is no longer required that adultery must be
proved beyond all reasonable doubts. It can be established by preponderance of probabilities. It can be generally
proved by presumptive proof based upon (a) circumstantial evidence, (b) evidence of non-access and birth of a
child, (c) contracting venereal disease, and (d) confession and admission. The proof of adultery must be of such a
character as would lead a reasonable man to conclude that no other inference than the adultery of the respondent
is possible. It may be proved by preponderance of probabilities and the degree of probability depends on the gravity
of the offence. In this case, adultery was sought to be proved by non-access. He had, according to him, no access
to his wife from April 28, 1968, but a boy was born to her on March 12, 1969, another boy on May 27, 1975 and a
girl was born on May 27, 1976. This is an interesting case as non-access is being established on the basis of blood
grouping. The judgment elaborately discusses the nature of his evidence. Since on medical evidence based on
blood-test, it was established that the third child could not be the child of the petitioner, the court granted a decree
of divorce on the ground of wife’s adultery. Bidhan Chandra Sinha v. Susma Sinha4, is also an interesting case as
in this case the Court granted decree of divorce on the ground of wife’s adultery (wife chose to remain ex parte) on
the sole statement of the petitioner, since the witnesses resided beyond the jurisdiction of the Court and could not
be summoned. The collaboration was sought from some letters of the relations of the husband regarding her
misconduct and misbehaviour and from the fact that she persistently refused to come and live with the husband. It
may be corroborated by an independent witness1.

Where wife was found to be in love with a person other than her husband, had written letters to him and had
opportunity to have sexual intercourse with him she was held to have committed adultery.2 However mere
allegation of adultery on the part of wife by husband is not sufficient to raise presumption. Husband alleged that he
saw his wife talking to a person three times in front of grown up children does not raise the presumption.3 Where
wife was living in her parents’ home and became pregnant without resumption of cohabitation. She averred that the
husband used to visit her and stayed the nights. But she failed to examine her parents or any other person to
support her version. Husband was granted divorce on adultery.4

Evidence of blood-groups.—In England, the modern ‘science of blood-groups’ is used to prove adultery. Attempt
is made by blood-grouping test that the child born to the wife could not be the child of the husband and therefore
wife has committed adultery. In F. v. F.5, such evidence was relied upon and the husband was awarded a decree of
divorce on the basis of wife’s adultery. But in W. v. W.6, the court did not allow blood-test as it would bastertise the
child. In this case a child born to the white wife had Negroid feature, and a decree of divorce was passed in favour
of the husband. However, in S. v. Mc and M.7, the court said that blood-test should be allowed as that was the best
evidence of adultery available under the circumstance. In this case also the child had Negroid feature and the
husband had alleged that the child was born from wife’s Negro lover.

Burden of Proof.—The burden of proof is on the petitioner to establish that respondent committed adultery8.
Adultery too can be proved by preponderance of probabilities9. Proof beyond reasonable doubt cannot be
postulated where human relationship is involved. No eye witness is required. It is adequate to show that the wife
had gone with someone and stayed together in the same room.10 But where there is not even circumstantial proof,
adultery cannot be proved.11

Children born of AID and AIH.—Where resort is taken of AID or AIH, the question arises whether the children
born thereby would be legitimate children of the husband of the woman who has resorted to these. Similar question
may come up in reference to test-tube babies. If such babies are born of the ovum and sperm of the same spouses
there is no difficulty. But it can also happen, as in AID, the sperm may be of a third party donor. Probably, it is also
possible that ovum and sperm may both be from different sources and the fertilized ovum may be inserted in
another woman who is sterile on account of lack of ovum. Thus, by this permutation and combination the genetic
engineering may succeed in helping procreation where all hopes of procreation have been lost, and, in that
process, may create human species of its own design. Presently, the problem that confronts the lawyers is the
legitimacy of such children. Where AIH is resorted to or where the test-tube baby is produced from the ovum and
sperm of a married couple, there are no difficulties. The children will be the legitimate offspring of their parents. But
when the child is begotten with the aid of AID, or a test-tube baby is born, with the sperm of a third party, will the
child be legitimate? Will the presumption of the law of evidence, viz., a child born within lawful wedlock would be
presumed to be the legitimate child of the husband of the woman apply?

On application of the provisions of section 112, the child will be legitimate, unless the husband of the woman takes
the plea of non-access. If he does not take that plea, it is submitted that he will have full custodial right as well as
right of visitation. He will also be the legal guardian of the child, in systems, such as, ours where a father, is the
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guardian of his legitimate children, and during his lifetime, mother is not a legal guardian1. But, it seems, in those
cases where AID is resorted to without his consent, he can disown the child, as he can rebut the presumption on
the evidence of non-access. But in those cases where the AID is resorted to with his consent, can he take the plea
on non-access and bastardize the child? Or, can in such a case the child be not equated to an adopted child? The
question has come before some American courts. A New York court was called upon to adjudicate upon the
question of custody of an AID child in Strand v. Strand2. The Court observed that although the child if not the
offspring of the man biologically yet “the child has been potentially adopted or semi-adopted by the defendant. In
any event insofar as this defendant is concerned, and with particular reference to visitation, he is entitled to the
same rights as those to which a natural parent under the circumstances would be entitled to”3. The Court also
observed that the child is not illegitimate. But in Doornbas v. Doornbas4 the Court took a different view and held that
AID was adultery and contrary to public policy and the offspring thus procreated was illegitimate. One wonders as to
how that conclusion could be reached. Even if the insertion of third party sperm is equated with “penetration”, the
same has been done with the consent of the husband and if the husband consents the wife is guilty neither of the
matrimonial offence of adultery nor of the criminal offence or civil wrong of adultery. Further, so long as the husband
does not take the plea of non-access, a child born to him within lawful wedlock cannot be bastardized. But it seems
that the New York Court was more swayed by moral considerations than by legality of the transaction. The Court
observed:

Heterologous artificial insemination, with or without the consent of the husband, is contrary to public policy and good
morals, and constitutes adultery on the part of the mother. A child so conceived is not a child born in wedlock and therefore
illegitimate. And as such it is the child of the mother and the father (sic) has no right or interest in said child1.

[Emphasis by author]

The court ruled that the “father” has no custodial or visitation right to the child.

Another question that arises in connection with the AID offspring (when husband has consented) is: whether
husband can be saddled with the responsibility of maintenance of such children. The question has come up before
the American courts at least in three cases2. Gursky v. Gursky3 was the petition and counter-petition for annulment
of marriage (wife’s ground was impotency), where the wife has successfully resorted to AID resulting in the birth of
a child. The wife also claimed custody of, and support for, the child. The wife has resorted to AID, with the consent
of her husband. The court passed a decree of annulment, and held that the child was illegitimate. Similarly, in
Anonymous v. Anonymous4, the court ordered the husband to support the child since the written consent for AID by
the wife “carried an implied promise to furnish support for the resulting progeny”. In People v. Sorensen5, after
fifteen years of married life and on the medical determination of his sterility, the husband consented to wife’s taking
resort to AID, which resulted in the birth of a child. After four years of the birth, the parties separated. On the wife’s
claim for support of the child the Court held that the husband was the lawful father of the child and was bound to
support it. This, it is submitted, should be the correct view. After all, when the husband consents to AID why it
should not be treated, at least, at par with the adoption. When a married couple adopt a child with mutual consent,
the adopted child, for all intends and purposes, is the child of the adoptive parents6. But, of course, the position
would be different when the wife resorts to AID without her husband’s consent.

Adultery on Part of Wife: Condonation

To constitute condonation there must be two things:

(i) forgiveness, (ii) restoration. The reinstatement of offending spouse is a prime requirement of the doctrine and mere
forgiveness of the matrimonial offence is not sufficient to conclude condonation. The condonation implies a complete
reconciliation in the sense of reinstating the offender to conjugal cohabitation. In this instant case there was no material on
record to indicate resumption of conjugal life between the appellant and respondent No. 1, their relationship was found to
have remained bitter and strained. The respondent No. 1, filed petition against Respondent No. 2 in the Court of enquiry
and filed proceeding for divorce. Therefore, the court found no material basis to sustain the defence of condonation.1

Adulterer as co-respondent.—See Chapter XIII, under this title.

Desertion
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Under most of the Indian statutes desertion is a ground for divorce or judicial separation or for both. The Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955 contain an identical provision, and desertion is a ground for
both desertion of marriage2 and judicial separation3. Under the Indian Divorce Act, 1869 desertion as such is not a
ground of divorce for either spouse. But in the case of wife’s petition for divorce, husband’s desertion for a
continuous period of two years coupled with his adultery is a ground for divorce4. However, two years’ desertion
without reasonable cause is a ground for judicial separation for either spouse5.

“Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive
definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end—animus deserdendi;
3. the element of permanence which is a prime condition which requires that both these essential ingredients
should continue during the entire statutory period.

From the Explanation to section 13(1)(ib) of the Hindu Marriage Act, 1955 it is clear that the legislature intended to
give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the
marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely, (1) the factum of separation; and (2) the intention to bring cohabitation
permanently to an end (animus deserdendi). 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. The petition for divorce bears the burden of proving
those elements in the two spouses respectively and their continuance throughout the statutory period.1

Under the Parsi Marriage and Divorce Act, 1936 two years, desertion is a ground for divorce2as well as judicial
separation3. Section 2(iv) of the Dissolution of Muslim Marriage Act, 1939 does not recognize desertion as such as
a ground of divorce. But a Muslim wife can sue her husband for dissolution of marriage if “the husband has failed to
perform without reasonable clause his marital obligation for a period of three years”. Further clause (ii) of the
section lays down that the husband has neglected or failed to provide for her maintenance for a period of two years.
It is submitted that as we would see, these clauses virtually amounts to desertion.

Hindu Law
Section 13(1)(ib) of the Hindu Marriage Act, 1955 provides desertion as a ground for divorce. It lays down that the
other party—

……has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation
of the petition.

The formulation of “desertion” is contained in Explanation to section 13(1). The Explanation runs:

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the
petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed
accordingly.

Special Marriage Act

Section 27(1)(b) of the Special Marriage Act, 1954 contains an identical provision as under section 13(1)(b) of the
Hindu Marriage Act, 1955, (before its amendment in 1978).

Parsi Law
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Under the Parsi Marriage and Divorce Act, 1936 section 32(g) contains the ground of divorce on the basis of
desertion. It lays down that a spouse may sue for divorce on the ground—

……that the defendant has deserted the plaintiff for atleast two years.

Christian Law
Under the Indian Divorce Act, 1869 (as it was called before Act 51 of 2001 came into force) the ground of desertion
was not available to husband at all. A wife could petition for dissolution on the ground of desertion only if her
husband’s adultery was coupled with desertion, without any reasonable excuse, for a period of two years. After
amendments the ground of desertion simpliciter has been made available to both the husband and wife. The
provision states—
(i) Any marriage solemnized whether before or after the commencement of Indian Divorce (Amendment) Act,
2001, may on a petition presented to the District Court either by the husband or the wife, be dissolved on
the ground that since the solemnization of marriage, the respondent—

has deserted the petitioner for at least two years immediately preceding the presentation of the petition.1

Muslim Law
Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939 lays down that a Muslim wife shall be entitled to a
decree of dissolution of marriage on any one or more of the following grounds, namely:—

……that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.

Section 2(ii) of the Act runs:

……that the husband has neglected or failed to provide for the maintenance for a period of two years.
Definition and Elements of Desertion

The courts have consistently refused to define ‘desertion’ both in England and India. Earlier English courts adopted
a restrictive view of desertion apprehending that too wide a definition would lead to divorce by mutual consent. But
later on the attitude of the courts became liberal2. Under the Hindu Marriage Act, 1955 andspecial Marriage Act,
1954, “desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause
and without the consent or against the wish of such party, and include wilful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”. In
short, desertion means the rejection by one party of all the obligations of marriage. Desertion means permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the
other. Desertion, in short, means a total repudiation of marital obligation. An end to two-in-oneship and to marital
togetherness which is the kernel of marriage. To explain it with an analogy: most of us are familiar with the term
desertion—deserter from the army. A deserter from the army is one who runs away from his post or from his duty. A
spouse is in desertion if it runs away from his marital obligations, from cohabitation. The “running away” may mean
that he actually leaves the matrimonial home permanently or living in matrimonial home refuses to perform marital
obligations; he ceases to cohabit or he abandons his matrimonial obligations. The latter aspect of desertion is
termed as constructive desertion. Thus desertion may be classified under the following heads:—
(a) Actual desertion,
(b) Constructive desertion, and
(c) Wilful neglect. (This expression is used both under the Special Marriage Act, 1954 and the Hindu Marriage
Act, 1955 and in some cases, it has been considered part of constructive desertion).

It is submitted that failure to perform without reasonable cause of marital obligations for a period of three years
under Muslim law will also amount to constructive desertion.
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The main elements of desertion are:

(a) the fact of separation (factum deserdendi), and
(b) the intention to desert (animus deserdendi).

These elements apply to the spouse who is in desertion; the desertor spouse must have left the other party with an
intention to forsake and abandon the other permanently.

The further elements are:

(i) without any reasonable cause,
(ii) without the consent of the other party or against his wishes.
[These elements apply to deserted spouse, i.e., the deserted spouse must not have provided a reasonable
excuse or cause for the deserter spouse to leave or withdraw from cohabitation he should not give his
consent for the act of desertion.]
(iii) desertion should be at least of two years’ duration under the Hindu Marriage Act, 1955,Special Marriage
Act, 1954 and the Indian Divorce Act, 1869 while it should be of at least three years under the Parsi
Marriage and Divorce Act, 1936 and the Dissolution of Muslim Marriages Act, 1939.

Further, to examine of the elements of desertion, the following two preliminary observations are necessary to note
with a view to clearly comprehending the legal concept of desertion:
A. Until an action is brought desertion remains an inchoate offence, that is to say, it can be terminated by the
party in desertion by either resuming cohabitation or expressing an unequivocal intention to resume
cohabitation.
B. Although fact of separation is an essential element of desertion, it does not mean that the party who leaves
the matrimonial home is necessarily the deserter. It may be that a party who stays behind may by conduct
or act on his part had made it intolerable for the other spouse to stay on in the matrimonial home. This
aspect of desertion is called constructive desertion.

Fact of Separation and Intention to Desert

Factual separation is an absolute requirement of actual desertion. This is what we mean when we say that a
spouse has forsaken or abandoned his spouse. Thus mere refusal to perform marital obligations would not suffice,
particularly, spouse’s refusal to perform marital intercourse does not amount to separation or factum of desertion.
As has been said, there must be separation of households and not of houses. The factum of desertion can be thus
established even if parties are living under the same roof. This is particularly so in constructive desertion.

The obvious case of factum of separation is when one spouse leaves the matrimonial home. A husband’s failure
without any proper cause to establish a matrimonial home may by itself lead to inference of desertion1.

When both elements, intention to desert and fact of separation, co-exist desertion takes place2. Where wife’s
desertion for a period of continuous two years was proved and it was also shown that subsequent to the leaving of
the matrimonial home she visited her in-laws’ house to collect her belongings. This proved both the elements.3
Parties were living separate since 26 years. Wife alleged that since she is working she could not live with her
husband. But she also did not ever make attempts to live with her husband rather thwarted any attempts made by
him to meet her. It was held in the circumstances both elements were present.4 But in the absence of one and even
in the presence of the other desertion will not occur. Thus a spouse may every night, before he goes to bed, resolve
to leave the matrimonial home, yet day after day he continues to stay in the matrimonial home. Desertion does not
take place as there does not exist the factum of separation, even though he has formed an intention to desert5.

Abandonment by one spouse of the matrimonial home in a state of temporary passion, disgust or fit of anger
without any intention to bring the cohabitation to a permanent end, would not amount to desertion. Thus where the
wife left the matrimonial home under a delusion (with which she was suffering) that it would not be safe to live with
her husband, she would not be considered in desertion as she had no mental capacity to form animus deserdendi6.
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Where wife was living separate due to the fact that she was undergoing medical treatment, though, there was
factum but since there was no intention to forsake the matrimonial home, it would not result in desertion.7

If a spouse abandons the other in a state of temporary passion or anger without an intention to permanently put an
end to cohabitation then, it would not be desertion.8

Desertion is a question of fact and sometimes it becomes difficult to establish whether or not separation is
attributable to the conduct of the respondent where the state of separation de facto exists during the entire statutory
period. We would proceed to illustrate this from some cases.

Divorce on the Ground of Cruelty and Desertion

Petition for a decree of divorce on the ground of desertion was filed by a husband, which was rejected by the court.
In this case, marriage was not consummated for 6 years. Husband did not bring any evidence to prove cruelty by
wife. Husband did not attempt to get his wife back home while the wife, convened panchayat for joining matrimonial
home shows that it is husband and not the wife who deserted spouse.1

The Delhi High Court was faced with this difficulty in Om Wati v. Kishan Chand2. The parties were married on
February 2, 1976 and a female child born to them which died later. On May 22, 1981, the wife sued the husband for
divorce on the ground of his desertion. It was found on facts that the parties were living separately since February,
1979. But the Court held that animus deserdendi was not established. It was proved that when the husband was
informed of his child’s death, he did not come even for performing the last rites of his child. Avadh Behari Rohatgi,
J., observed that husband’s refusal to attend the funeral of the child amounted to conscious disregard of the duties
and obligations of the married life. The husband’s conduct clearly showed that he had totally broken off from his
family; he had forsaken and abandoned them. Further, the husband’s refusal to pay interim maintenance and
litigation expenses indicated the same conduct. In conclusion, it was held that the husband was guilty of desertion.

Again, the same question arose in Asha Handa v. Baldev Raj Handa3. I.D. Jain, J., rightly observed that where
separate living was forced on the wife by persistent, harsh and cruel treatment of the wife by the husband, the
husband must be presumed to have the requisite animus deserdendi and the matrimonial offence of constructive
desertion on his part would be complete as soon as the factum of separation began. The presumption of animus
deserdendi was not rebutted by evidence that the husband in fact had no desire to cause the other spouse to leave
or in fact desired her not to leave. In this case there was an agreement to live separately by mutual consent. But in
this case the court found that the agreement came into existence on account of harsh, overbearing, selfishly
indulgent and occasionally aggressive conduct of the husband. In short, the wife had no alternative but to agree to
separate. It was in this perspective that the judge held that since it was the expulsive conduct of the husband which
compelled the wife to live separately, he could not be allowed to take refuge under the separation agreement.

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there (a)
the factum of separation, (b) the intention to bring the cohabitation permanently to an end i.e., animus deserdendi.
Similarly two elements are essential as far as the deserted spouse is concerned (a) absence of consent, (b)
absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary
intention, Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi1.

In Amarjit Paul Singh v. Kiran Bala2, at the time of marriage which was solemnized on December 12, 1979, the
husband was a widower having three children and the wife was a divorcee having no child. Both were government
servants. On August 11, 1982, the husband filed a petition that his wife on becoming pregnant, began treating him
and his children with cruelty and finally deserted him. The wife denied cruelty and asserted that she was forced to
leave the matrimonial home not on July, 26, 1982 but on September 3, 1982. The main question before the court
was that even if the animus deserdendi was established, on which date the wife left the matrimonial home, on July
26 or on September 3? If it were the latter date, then the statutory period of two years was not complete. It was
found on facts that the wife left the matrimonial home only on September 3, and therefore, the statutory period of
two years was not complete when the husband filed his petition. It was also found that animus deserdendi was not
established.

In Rajindra Kumari v. Padam Parkash3, both husband and wife were teachers. Due to strained marital relations, the
wife who was pregnant left for her sister’s home in Delhi. After confinement, unpleasantness between the spouses
increased and consequently they could not re-establish their matrimonial home. On the basis of allegations of
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assault by the husband on his wife, he was bound to keep peace for a year in terms of an order passed under
section 107/151 of the Code of Criminal Procedure, 1973.

On these facts, Punchhi. J., observed that on the day when the wife’s desertion was alleged, there was a subsisting
order against the husband to keep peace and the wife was clearly justified in staying away from him. In conclusion
the Judge held that though factum of separation was there, no animus deserdendi existed on the part of the wife.
The Judge very aptly added, “Love died out: so did regard and sentiment. And then the ego of the husband
emerged, which kept its ugly head till today.”

Case of Jyoti Sarup Manocha v. Lalita Manocha4, presented peculiar fact situations and somewhat peculiar
interpretation of fact and law by the Court. The parties were married in February, 1970. In July, 1970 the wife
became pregnant and went to her father’s house from where she did not return to the matrimonial home. So the
husband filed a petition for restitution of conjugal rights. After amendment of the Hindu Marriage Act, 1955 in 1976,
which made desertion a ground of divorce, he filed a petition for divorce and got his restitution petition dismissed as
withdrawn. Wad, J., observed that the parties had been living separate for the last 14 years and the daughter born
to them had attained the age of 13 years. All judicial (including that of Wad, J.) and non-judicial attempts at
reconciliation failed. The difficulty in this case was that though the factum of separation was present, the husband
could not establish that the wife left the matrimonial home permanently without any intention to return. The marriage
had obviously broken down. A mass of evidence was produced by the parties. Yet, the Judge felt that the marriage
could not be dissolved as husband had failed to establish animus deserdendi on the part of the wife. It is submitted
that the court could have easily held that the marriage had broken down irretrievably and, on a proper and
nontechnical appreciation of evidence, he could have found the presence of animus deserdendi. The net result was
that the marriage remained an empty shell.

Where the wife left the matrimonial home with the permission of the husband but later neither did she join him nor
made efforts to come back, divorce was granted on this ground by presuming intention from conduct.1

In Bharat Lal v. Ram Kali Devi2 the trial court took the view that since the petitioner did not make any effort at
reconciliation by bringing back his wife who had left the matrimonial home with her brother, it was he who was guilty
of desertion—a unique view of constructive desertion. On appeal, the Allahabad High Court reversed the finding.
R.M. Sahai, J., rightly observed that once desertion was proved, the deserting spouse, so long as he or she does
not evince any serious intention to come back or makes any serious effort at reconciliation, he or she continues in
desertion. There is no obligation, the judge added, on the part of the deserted spouse to make any efforts at
reconciliation or try to persuade his or her spouse to return to the matrimonial home. (Contrast this case with Bipin
Chandra v. Prabhavati,3 where the court found that the wife very much wanted to return to the matrimonial home).

On the other hand, in Dharam Dev Malik v. Raj Ranii4, the husband who suspected the fidelity of his wife left her at
father’s house about a year and three months after the marriage, and did not try to fetch her back for fifteen years.
Thereafter he filed a petition for divorce on the ground of her desertion. The Court held that the wife’s continued
residence at her father’s home could not be said to be without any reasonable cause, and therefore she could not
be held in desertion. The Court further observed that there was nothing on the record to show that she had
withdrawn from the society of her husband with an intention to repudiating her matrimonial obligations for ever. In
fact, it was the husband who prevented the wife from returning to the matrimonial home by making false charges of
adultery against her.

Case of Jagannath v. Krishna5, presents interesting fact situation. In this case the wife became a Brahma Kumari
(celibacy is a basic tenet of this religious sect and so is secluded life) and refused to maintain the household and
cease to cohabit with her husband. Finally, she left the matrimonial home. It is a clear case of desertion, where wife
had no complaints against the husband but fell a pray to extreme spirituality and religiosity.

In Neelam v. Vinod Kumar Midha1, the parties lived together only for a short duration. Thereafter the wife left the
matrimonial home and filed a suit for the recovery of dowry-articles. The filing of the suit clearly indicated the wife’s
intention to desert and the court had no difficulty in saying that the wife was in desertion. Similarly, N.B. Rukmani v.
P.M. Srivastava2, facts were such that no court would find it difficult to give a finding of desertion. The wife had left
the matrimonial home without even informing the husband. Nearly two years thereafter she came to the matrimonial
home in a car and took away all her belongings including jewellery. She even did not try to meet the husband or
inform him.

Where wife was living with her parents to complete her studies, she could not be held in desertion3.

In Vinay Kumar v. Nirmala Chauhan4, (an undefended case) the wife came to live with the husband of and on (may
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be on persuasion) but finally left the matrimonial home in 1982. While in the matrimonial home, it appeared to be
clear, she could not get alongwith her husband and in-laws (it was a family where parents of the husband lived in
the matrimonial home). She used to abuse the husband and in-laws, threw things about, refused marital intercourse
with her husband, and once even threatened to put the matrimonial home on fire. She finally left the matrimonial
home in 1982 and did not return. Her intention to desert was clear. On the other hand, Ram Chander v. Adarsh
Lamba5 was a clear case of desertion by the husband. The wife left the matrimonial home for her parents’ home at
the advance stage of her pregnancy with a view to get her delivery performed under their care, with every intention
to return to the matrimonial home after delivery. But after the delivery of the child, the husband treated the wife and
child with utter neglect and ill-treated wife and was even cruel to her. He did not even care to visit her in the nursing
home (which was near his home), though the wife underwent a caesarean operation. He did not care to bring them
back to the matrimonial home. He filed a petition for divorce on the ground of wife’s desertion. Dismissing the
petition, the Court said that these facts constituted a reasonable excuse for the wife to live away from the husband.
It is submitted that the learned Judge Leila Seth, J., erred in the conclusion. The question of “reasonable excuse”
arises only when the petitioner is able to establish desertion on the part of the respondent. In the present case
though factum of separation existed (in the sense that wife was not living in the matrimonial home), but no where
intention to desert on the part of the wife was shown. All facts, on the contrary, went to show such an intention on
the part of the husband, and it was he who was in constructive desertion. The learned judge had held that the wife
had no intention to desert, yet she observed (unnecessarily, in our submission) that her husband had not been able
to prove that desertion was without just cause. This was, it is submitted that an unnecessary observation which may
lead to conceptual confusion1.

In Ashok Kumar Arora v. Prem Arora2, the husband petitioned for divorce on the ground of wife’s desertion. The
parties were married in 1970 and within a year of the marriage they were blessed with a child. But it seems there
was all along tension between them. The husband alleged that wife had been leading an immoral life, and before
marriage she was a call girl. It was alleged that when the wife was confronted with her immoral life before and after
marriage, she agreed to separate and a deed of divorce by mutual consent was executed. Thereafter she left the
matrimonial home, leaving behind the child. To quote the learned Judge, ‘...there has been prolonged separation
from February 27, 1972. The withdrawal from the society of the appellant was by the respondent. It was for her to
prove reasonable cause or excuse to keep away from her husband and from her son. This she miserably failed to
establish*** 2 The husband was leading immoral life with the girls with whom he was staging dramas, and stated
that the so-called divorce deed was a forged document. The court said that her intention to desert was established
by the divorce-deed which depicted her intention to forsake the matrimonial home forever. S.S. Chadha, J., said
that since the wife failed to prove that there was a reasonable cause for leaving the matrimonial home she was in
desertion. There is some confusion in the judicial opinion of the Delhi High Court as well as other High Courts as to
on whom does the onus lie of proving that departure from the matrimonial home was not without any reasonable
cause or was with reasonable cause. For instance in Ram Chandra v. Adarsh Lamba3, Leila Seth, J., said that the
husband failed to prove that desertion was not without just cause. To quote her, “As such in the facts and
circumstances of the case, I am of the opinion that Ram Chandra has not been able to establish that the desertion
was without just cause”*** 1. It is submitted that the burden of proof of establishing all the elements of desertion
including reasonable cause, is on the petitioner.

The desertion for the purpose of divorce means intentional and permanent forsaking and abandonment of one
spouse by other without that other’s consent and without reasonable cause. In other words, it is a total repudiation
of obligation of marriage—Savitri Pandey v. Prem Chandra Pandey.4

Where husband filed petition of divorce on the ground of desertion by wife and it was shown that she was beaten by
him in front of her father and uncle and she was living separate due to just cause, she was held to be not in
desertion.1

Where wife had withdrawn from the society of her husband due to his persistent demand for money, it was held that
she was not in desertion.2

Where marriage was not consummated for 6 years and husband’s affair was not rebutted, further there was no
evidence of wife’s cruelty. Husband had never made efforts to bring her back. It was held that wife was not in
desertion.3 Where husband himself was inflicting cruelty, wife could not be said to be in desertion.4

In the case of Geeta Jagdish Mangtani v. Jagdish Mangtani,5 it was observed by the Supreme Court that there was
never any attempt on the part of the wife to go to her husband’s house i.e. matrimonial home of the parties after she
left on 2-6-1993. From this fact alone animus deserdendi on the part of the wife was clearly established. She had
chosen to adopt a course of conduct which proved desertion on her part. In the facts and circumstances of the
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Chapter VII FAULT GROUNDS OF DIVORCE

case, it could not be said that this desertion on the part of the wife was with a reasonable cause. Such a course of
conduct over a long period indicated total abandonment of marriage and could not be justified on the ground of
monetary consideration alone as a reasonable cause to desert. It also amounted to wilful neglect of the husband by
the wife.

Divorce on the Ground of Desertion

A divorce was sought by the husband on the ground of desertion by his wife. The fact was that the wife underwent
depression problem soon after the birth of daughter and hence, she was advised to take medical treatment at place
where her parents were residing. But, the factum of separation between couple on account of said medical problem
by itself would not be sufficient to establish any animus on the part of the wife to desert husband. Therefore,
marriage cannot be said to be irretrievably broken down. So, husband is not entitled to a decree of divorce.6

Parties to the marriage were living separately for 26 long years. The wife made a plea that she was employed as a
school teacher, but due to her posting at different places, she could not live with her husband. But on the contrary,
the facts shown that she did not make any attempt to visit or live with her husband in intervening period e.g., during
vacations or Government holidays. Notwithstanding these reluctance on the part of the wife, husband attempted
many times to meet to wife but failed. Therefore, court granted a decree of divorce on the ground of desertion.7

Hindu joint family setting and desertion.—Living in joint families poses its own challenges and problem. The wife
in particular has to face quite a few problem of adjustment. On the one hand, the joint family provides security to the
couple, on the other it curtails their liberty, and more often than not it is the latter which creates problems and
predicaments. The wife has to undergo trials and tribulations of such living more than her husband. Then there is
usual story of mother-in-law, daughter-in-law taunts and skirmishes. Bipin Chandra v. Prabhavati1 and Lachman
Utamchand Kirpalani v. Meena alias Mota,1 and Rohini Kumari v. Narendra Singh,3 Evidence of the person in
whose house the wife was tenant and evidence of the wife’s father was held sufficient,4 are typical cases of this
predicament of wife and the problem she faces in living in joint families. These cases belong to upper middle
classes. In the second case wife’s parents were very affluent, in the third case husband belonged to a princely
state. Krishnabai v. Punamchand5, Mangal Bai v. Devrao6 and Roshan Lal v. Basant Kumari7 are typical cases of
lower middle class.

Now these cases are being reviewed.

In Lachman Utamchand Kirpalani v. Meena alias Mota***2, the husband petitioned for judicial separation on the
ground of wife’s desertion. Meena, the daughter of an affluent businessman having business houses all over the
South East Asia, was married to a physician whose father was also a businessman. Parties were married in
November, 1946 at Hyderabad (Sind). Her married life got started in her husband’s father’s joint family which
consisted of both his parents and two sisters. They were blessed with a male child in July, 1947. The partition of
India disturbed the life of the couple; they had to migrate to India in October, 1947. For some time Meena had to
live in Colombo with Lachman’s maternal uncle alongwith his sisters and mother. In January, 1948 Meena left
Colombo for her parent’s house at Lonavala as she felt that her sister-in-law did not treat her well. Lachman also
got a house in Bombay, and from January, 1948 to the beginning of the year 1954 they lived together in Bombay,
though during this period Meena used to visit her parent’s house frequently. On February 26, 1954 Meena left her
husband’s house and went to Poona with her father and from there she went to several South-East Asia towns
where her father had business establishments. The husband wrote to her several letters requesting her to rejoin
him and to every letter she replied that she would come as soon as her health would permit. But a time reached
when Lachman lost his patience and started hurling wild and nasty allegation in his letters and ultimately crossed
the threshold of the court by suing for judicial separation on the ground of her desertion, Meena’s story is the usual
mother-in-law, daughter-in-law story. She said that her mother-inlaw was not satisfied with the dowry she brought,
that her parent-in-laws did not permit her to visit her parents’ house, that she was abused for trivial things, that the
treatment of her mother-in-law and sisters-in-law from beginning was cruel and humiliating and that the husband’s
attitude in this regard was far from satisfactory; husband always took the side of his parents and sisters and abused
her that she did not obey her parents and was quarrelsome with his sisters. Her further narration was that the
parents-in-law not merely said many ‘dirty’ things about her but they also did not allow their son (her husband) to
talk to her and she was prevented from doing any work for her husband or her son; sometimes she was beaten up
by her husband and was not allowed to see her child when ill. In short, her story reveals that she had no freedom in
her husband’s house, that she was abused and insulted by the parents-in-law and sisters-in-law, that she was not
allowed to look after her husband and the child and that whenever there was any trouble between her and her in-
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laws her husband always took the side of her in-laws. It was in these circumstances that she was left with no
alternative but to leave the matrimonial home. The story of Lachman is also the usual story of a son of a joint
household who cannot break the kinship bonds and feels miserable when his wife is not able to adjust in the joint
family and tries to throw all blame on him. According to him, Meena was disrespectful and indifferent to him and
was proud and arrogant, she refused to wear the clothes which were made for her by his parents on the ground that
they were made of inferior stuff, she was very disrespectful, disobedient and rude to his parents. She used to leave
for her parents’ house very often, and sometimes without informing him, she had no love and affection for him, and
in her father’s house she indulged in vices such as smoking, drinking and playing cards, it seems evident that the
couple were not happy in their married life and probably their marriage began to stumble and it was broken
marriage when on February 26, 1954, Meena had left the matrimonial home. The events before the husband went
to the court clearly indicated the desperate attempt of a son of a Hindu joint family to retrieve, if possible, of what
was left of his marriage, which also reflects the Hindu husband’s predicament.

The case of Bipinchandra Jaisinghbai Shah v. Prabhavati1, presents identical joint family setting, with the exception
that Prabhavati’s father was not as affluent as Meena’s. Soon after her marriage in 1942, Prabha came to live in her
husband’s two room flat in Bombay in which also lived Bipin’s parents and two unmarried sisters. A son was born to
the couple in 1945. Apparently the marriage began well and there was no evident tension in their life. In 1946 there
came to live in the family one Mahendra, a retired armyman and a friend of the family. In January, 1947, Bipin went
to England on a business trip. On return he came to know from his father, who had intercepted a letter written by
Prabha to Mahendra, that Prabha became intimate with Mahendra. On the night of the return of Bipin from England
his parents prevented him from sleeping into the room occupied by the wife. Later on when Bipin asked for an
explanation from his wife she refused to have written the letter, and, a day after, she alongwith her son left for
parent’s home at Jalgaon, ostensibly for the marriage of her cousin which was to take place four to six weeks later.
After that the wife did not, or could not, come back to the matrimonial home. Some abortive attempts at
reconciliation were made by Prabha’s uncle and a cousin. It seems Prabha’s mother and Bipin’s mother also met
but the desired reconciliation did not come about. The husband got a registered notice served on his wife through
his solicitor charging her with adultery with Mahendra and asking her to send back the child. In November, 1947,
Bipin was told by his mother that Prabha was coming to Bombay to join him, whereupon he sent a telegram to
Prabha’s father “Must not send Prabha. Letter posted.” Ultimately in 1951 the husband filed this petition for divorce
on the ground of wife’s desertion.

A couple of cases in which the couples belonged to lower middle class joint households are being reviewed.

Krishnabai v. Punamchand1, is typical case of lower middle class families where both the couple did not lay claim to
much education. Krishna, on her marriage, landed in the joint family of her husband’s father and she could not
adjust herself there for more than four or five months during which period the relationship between the spouses was
also not cordial. Punamchand’s story as revealed in his petition for judicial separation was that she always
quarrelled with his parents and wanted that he should live in a separate house with her. The story of Krishna was
that her parents-in-law ill-treated her and her father-in-law misbehaved with her. Krishna was certain of her mind,
and she said very categorically before the Court, that she was willing to live with Punamchand only if he lived
separate from his parents. Mangalbai v. Devrao presents identical story. Mangalbai refused to live with her husband
in the house of her parents-in-law. She wanted her husband to live separately with her. In Roshan Lal v. Basant
Kumari2, the parties were married in 1957 and lived together as husband and wife for about three years at Patiala.
They were also blessed with a son and a daughter. But the ship of evidently happy couple, got wrecked on the
rocks of the joint family. Basant Kumari, the mother of two children, could not adjust herself with her in-laws and
found that her husband took the side of his parents and scolded her whenever she complained against the
treatment of her in-laws; rather he started ill-treating her. The wife left the matrimonial home and went to live with
her parents in their household, still a safe refuge for an unhappy married daughter. Basant Kumari too was firm that
she would live with her husband only if he lived separately from his parents.

How these cases went through courts is a fascinating and useful study and, if one would scan through the record of
these cases, one would find the judicial predicament of fact-analysis which is ultimately got over by the usual
lawyer’s technique of plunging into technicalities, what sociologists deferentially call “refined analytical skills on legal
doctrinal issues”.

In Lachman Uttamchand Kriplani v. Meena3, the petition was filed in the trial court on September 20, 1956. It
reached the High Court on appellate side in 1958 and the High Court rendered its decision in 1960. The appeal to
the Supreme Court under a certificate of fitness under article 133(1)(c) was filed in 1961 and the Supreme Court
rendered its judgment on August 14, 1963. The trial court passed decree in favour of the husband. The High Court
reversed the decree. In the Supreme Court the majority (Ayyanagar, J., with whom S.K. Das, Reghubar Dayal, JJ.,
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Chapter VII FAULT GROUNDS OF DIVORCE

concurred) decided in favour of the husband, while Subba Rao, J., dissented. Apart from the legal analysis of the
constituent elements of the matrimonial offence of desertion (both by Ayyangar, J. and Subba Rao, J., here
substantially in agreement), there is a divergence in fact-analysis. According to the majority the wife left the
matrimonial home without the consent of her husband and the nasty letters that the husband wrote to her while she
was abroad did not have such impact on her mind as to prevent her from joining her husband. Subba Rao, J., on
the other hand, found that she did not leave the matrimonial home without the consent of her husband and that the
nasty letters and the behaviour of her husband subsequent to these letters created an impression in her mind that
her husband did not want her to return to the matrimonial home. In Bipin Chandra v. Prabhavati1, the Supreme
Court rendered a unanimous verdict. Bipinchandra filed the suit for divorce on the original side of the High Court.
The trial court passed the decree in favour of the husband as it found that the wife was in desertion, but the High
Court reversed the decree as it found that the wife was ‘technically’ not in desertion. The Supreme Court agreed
with the High Court. Sinha, J. (who rendered the judgment on his behalf and on behalf of Venkataram Ayyar and
Jagannathadas, JJ.) was of the view that the telegram of the husband to his father-in-law in which he asked him not
“to send” Prabha to his house terminated the state of desertion in which the wife was, as he frustrated the genuine
and sincere effort of his wife at reconciliation. This judgment is mainly concerned with what amount to desertion in
law. Desertion is a continuing offence and it remains inchoate till the petition for the matrimonial relief is not filed;
before that event the deserting spouse can bring the state of desertion to an end, inter alia, by making a genuine
and sincere offer to return, and if that offer is turned down, the state of desertion terminates. In law and in pure legal
terms the judgment is correct. It is evident that in both Lachman’s and Bipinchandra’s case, marriage had
completely broken down, but the courts, when called upon to decide a matrimonial cause on a fault ground, are only
concerned whether the ground has been established or not; they are not much concerned as to whether or not the
marriage has broken down irretrievably, though in cases coming before the courts after 1976, some of the High
Courts have given due weight to irretrievable breakdown of marriage, particularly in case when divorce is sought on
the ground of cruelty.

In Krishnabai v. Punamchand2, the Madhya Pradesh High Court observed that “the only question for consideration
is: whether this was reasonable offer (the wife categorically said that she was willing to live with her husband
provided he lived separately from his parents), and whether the appellant had reasonable cause or excuse to live
separately (Krishna asserted that she had to leave the matrimonial home on account of ill-treatment by her in-laws).
The Court found that Krishna’s assertion that she was ill-treated was not substantiated, and as to her offer,
Surajbha, J., has to say: Now her offer that she would only live with husband if he lives separately from his parents
is an offer which is not conciliatory but hedged in with an unreasonable qualification or condition. It is to be borne in
mind that the respondent is the only son of his parents.” (Emphasis by author). No judge in any Western country will
probably make that observation and give that importance to only sonship but in the context of Hindu society such a
statement is very natural, real. Roshan Lal v. Basant Kumari1has a little longer history of litigation. Married in
December, 1956, Roshanlal and Basant Kumari were blessed with two children, a male and a female. But it was not
a happy marriage. Unable to adjust in the joint family of her husband, Basant Kumari left the matrimonial home in
the early part of 1960. Roshanlal filed an application for restitution of conjugal rights in December, 1960, which was
compromised in May, 1961 and spouses took the vow to live together but this vow could not last longer than
August, 1961 when Basant Kumari, not able to adjust herself in the joint family, once again left the matrimonial
home, and a little later she filed an application for maintenance under section 488 of the Code of Criminal
Procedure, 1973. Her application was dismissed in July, 1962. She filed a revision petition to the appellate court in
February, 1963. This led to further deterioration in the spousal relations. The parents of both the spouses also
jumped into the fray which led to security proceedings and the father and brother of Basant Kumari were bound
down to keep peace by the Magistrate. In September, 1963 Roshan Lal filed a petition for judicial separation on the
ground of wife’s desertion and cruelty (at that time both were grounds for judicial separation and not for divorce
under the Hindu Marriage Act, 1955). In April, 1965, the petition was dismissed as the trial court came to the
conclusion that Roshanlal had failed to establish his case. Roshanlal filed an appeal to the High Court. The High
Court rendered its judgment in September, 1966, and passed a decree for judicial separation in favour of the
husband. Kaushal, J., found that the wife was not happy in the parental house of the husband where his mother
and brother also resided and that at one time Roshanlal agreed to provide her with a separate house. The learned
judge observed, “Generally speaking, a husband being the wage-earner has the right to say as to where he would
keep his wife. This does not however mean that the wife has absolutely no say in the matter. Like reasonable
people both parties should decide where they would live, namely, whether in the paternal home or in a separate
home. Both sides, have got to make a reasonable view of things.” But the learned judge found that by leaving the
matrimonial home, wife was unreasonable and therefore was guilty of desertion2.

The importance of the case of Sanat Kumar Agarwal v. Nandini Agarwal3, lies in the analysis of peculiar facts of the
case. It was a gurawant marriage4. Soon after the marriage dissensions arose in the families and one couple got
divorce but other could not and the Supreme Court was concerned with this couple. The Supreme Court found that
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parties, had been living separate and apart for a period of ten years. It also found that reconciliation between the
parties was impossible. The Supreme Court said: “Thus taking in view of the peculiar facts and circumstances of
the case we are clearly of the view that the appellant has proved his case for the grant of divorce on the ground of
desertion.”

In Teerth Ram v. Parvati Devi1, wife was living separately from her husband. She said unless her husband
establishes a separate residence away from the joint family, she would not join him, the Rajasthan High Court held
that she was not in desertion.

In Kosuri (Chandana) Dhanum Kumari v. Kosuri Venkata Vara Prasad2, wife was held not in desertion due to pre-
marriage agreement between the parties that husband would take up house near the University to facilitate the wife
to pursue her research earlier. Because of failure of the husband to do so she was living separately, otherwise she
was willing to live with him after completing her research.

Where wife was living separate for treatment and had no intention to separate, it was held that she is not in
desertion.3

Mutual desertion.—There may be situations where both the parties are in desertion independently of each other’s
desertion. Such a situation is given the name of mutual desertion. This is a case where in fact—to use the language
of fault theory—both parties are guilty of the commission of the matrimonial offence of desertion, and if we employ
“taking advantage of one’s wrong notion” then neither party is entitled to any relief. But in some English cases a
view has been held that the just solution in such a case is that marriage should be dissolved at the instance of
either party4. Thus in Price v. Price5, the English Court expressed the view that where parties have without mutual
consent deserted each other, or stated living separately from each other independently and permanently, then they
should be held to have deserted each other and a decree of divorce should be granted. If we adhere to the “taking
advantage on one’s wrong” notion, then this decision is not correct. However, this controversy should not detain us,
as English law6allows divorce by mutual consent if parties are living separate for two years, and the Hindu Marriage
Act, 19557 and the Special Marriage Act, 19548 allow divorce if parties are living separate for one year or more from
each other.

However in Guru Bachan Kaur v. Preetam Singh1, Allahabad High Court had held there is nothing like mutual
desertion and one party has to be guilty. In the instant case the husband initiated proceedings after 7 years of
alleged desertion and he had never made efforts to accept reasonable wishes of a working wife, whereas she was
willing to live with her husband at her flat at the place of her service.

Supervening desertion.—It is not necessary that the intention to desert must precede the fact of separation. Thus,
where a person while leaving the matrimonial home, say, for some business or work or for any other purpose goes
to another place having no intention to desert, rather all the time has clear intention that he would return home after
the completion of the mission. If such a person is stranded here for a couple of years, he would not be a deserter,
since he had no intention to desert. But, may be, after some time when he is still away from the matrimonial home,
he forms an intention to desert. The moment he forms the intention to desert, he becomes a deserter, as at this
moment both intention to desert and fact of separation co-exist, and on the completion of the statutory period of
desertion (beginning from the date he formed the intention and not from the date he left matrimonial home), the
other party can sue for desertion2. This is, sometimes, called supervening desertion, as in such a situation factual
separation already existed, the intention to desert supervened. This can happen even when the parties are not
physically in a position to live together, such as, when one of them in prison.

So far there is no Indian case of this fact-situation. But in England there have come before the courts several cases
wherein this question has arisen. Some conceptional difficulties to arise. In the words of Cretney:

If, however, the separation was consensual in origin, it must be established that the separation is no longer in reliance on
that consent. If the parties agree to separate, the fact that one or both of them subsequently forms the intention not to
return will not by itself convert the separation into desertion. It must be shown that the consent is no longer in force, either
because it was given for a limited time or purpose which has expired or been accomplished, because the consent has been
withdrawn, or because one party no longer relies on the consent, and has communicated this fact to the other party. It is
necessary for the consensual element to be lost on the both sides3.

The learned author rightly says that this gives rise to certain absurd results. A husband leaves his wife for a
business voyage. Such a separation may be regarded as justified rather than consensual. If it can be shown
subsequently he formed an intention to desert—desertion begins, without the necessity for any communication to
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the other. But, suppose, if the wife leaves with the husband‘s consent to look after her ailing parents. The fact that
she subsequently formed an intention to desert would not put her in desertion, because the agreement will still be in
force unless and until something happens to terminate it4.

Cretney observes: This distinction, although perhaps logically defensible, is difficult to apply in those cases where
separation is both justifiable and consensual, as for example, where a husband, as a matter of politeness, asks his
wife if she minds his going off on a business trip. It seems absurd that, if he subsequently decide to abandon her,
but does not tell her so, she will be worse off because she consented to his going.

It is submitted that in such a situation the agreement or consent of the other spouse should automatically be
deemed to have terminated, and the moment intention to desert and factual separation co-exist, he or she should
be deemed to have deserted.

Constructive Desertion
The most apt expression of constructive desertion is: “desertion is not a withdrawal from a place but from a state of
things”1. In actual desertion factual separation is an essential ingredient, but it does not mean that the spouse who
leaves the matrimonial home is necessarily a deserter. The spouse who stays behind might, on account of his
conduct, have made it intolerable for the departed spouse to stay in matrimonial home, in such a case the spouse
who stays back is the deserter. Further, if parties have ceased to cohabit with each other, having no contact with
each other, then the factum of separation is provided by the conduct of the party who has brought about such a
situation2. In the words of Denning, L.J.3:

The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his
wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat. They
may meet on the stairs or in the passage way, but so they might if each had separate flats in one building. If that
separation is brought about by his fault, why is that not desertion? He has forsaken and abandoned his wife as
effectively as if he had gone into lodgings. The converse is equally true. If the wife ceases to have anything to do
with, or for, the husband and he is left to look after himself in his own rooms, why is not that desertion? She has
forsaken and abandoned him as effectively as if she had gone to live with her relatives.

In Lang v. Lang4, the Privy Council observed:

Since 1860 in England... it has been recognised that the party truly guilty of disrupting the home is not necessarily or in all
cases the party who first leaves it. The party who stays behind (their Lordships will assume this to be the husband) may be
by reason of conduct on his part making it unbearable for a wife with reasonable self-respect, or powers of endurance, to
stay with him, so that he is the party really responsible for the breakdown of the marriage. He has deserted her by expelling
her, by driving her out.

In cases of constructive desertion, where parties are living under the same roof, it must be shown that there is
nothing common in the relationship of spouses; they share nothing. Thus, in some English cases it has been
observed that sharing a common living room or taking meals at a common table are facts which nullify constructive
desertion1. In Le Brocq v. Le Brocq2, the wife excluded the husband from the matrimonial bedroom by putting a bolt
on the inside of the door. There was no avoidable communication between the two, but the wife continued to cook
meals for him and the husband paid her a weekly sum for house-keeping. It was held that there was no desertion,
the court observed, “there was separation of bedrooms, separation of hearts, separation of speaking, but one
household was carried on “.

Thus, suppose a husband tells his wife that everything is over between them, they will not talk to each other, they
will not meet each other, they will no go out in each other’s company, and they will meet only at breakfast table, if
necessary, talk about children (the couple had children of the marriage). In such a situation the wife has two
alternatives: she may leave the matrimonial home, as she may feel she cannot stand such indignities and
humiliation, or she may continue to stay there in the interest of the children or because she has no other place to
go. In either case it is the husband who is the deserter. In Long v. Long3, the House of Lords said that if one spouse
by his words and conduct compels the other spouse to leave the marital home, the former would be guilty of
desertion, though it is the latter who physically separated from the other. Similarly, in Bowron v. Bowron4, Pollock,
M.R. said that the party who intends bringing cohabitation to an end and whose conduct in reality causes its
termination, commits the acts of desertion. Jyotish Chandra Guha v. Meera Guha5was a case of constructive
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desertion under the Special Marriage Act, 1954. The parties were married in 1945 and the wife came to live with her
husband. The averments of the wife were that she found him cold, indifferent and sexually abnormal and perverse.
Shortly after marriage the husband left for England and the wife got busy with her M.A. Examination. On return from
England the husband continued to be very cold, and hardly spent any time with his wife. He used to return very late
at night from the club. At the instance of the husband, the wife went to England to do her Ph. D. where she stayed
from 1948 to 1951. In between she made two visits to India and found her husband more cold than what he was.
On her final return from England the wife stayed for sometime with her parents at Jaipur. Thereafter she went to live
with her husband. Wife’s sufferings and mental agony continued. In 1952 she got a job of a lecturer in the Calcutta
University. Realizing that she had to live a frustrated married life, she dedicated her life to work and began to
observe complete reticence and indifference at the matrimonial home and apparently a defiant attitude to the
husband. At the husband’s house she had more physical torture and violence and mental shock. The wife realised
that the husband wanted her to live elsewhere and that the husband developed a feeling of hatred and abhorrence
for her. In the same house they became strangers to each other. And thus they continued to live till 1954, each of
them having his or her own way. In November 1954, wife left the husband’s home and shifted to a rented flat where
her sister and mother were living. By this time she had made up her mind to abandon the matrimonial home. In
1955 wife’s father tried to bring about reconciliation between the spouses, but as he approached the husband, he
was turned out and dragged to the flat where the wife was living. There the husband had a heated discussion with
his wife and offered her two alternatives, to sue for divorce or to go to Mandalay, where her father was posted. On
wife’s refusal to accept these terms, he flew into rage and struck the wife with a stick. When wife’s father protested,
he tried to strike him also. But father and the sister caught hold of the stick and prevented him from doing so.
Thereupon, he gave several slaps to father and sister. He also twisted the arms of the sister. Under these
circumstances wife petitioned for divorce.

The court found that throughout, the married life the husband was indifferent and cold to the wife, that the
relationship between the parties was most abnormal, that it was the husband’s marital lapses which caused bitter
and unfortunate situation, that in the later days of their living together the husband persisted in his attitude of utter
indifference, callousness and apathy towards the wife and lived with her as a stranger under the same roof, that no
sexual intercourse took place between the parties, and that the husband had developed an attitude of hatred and
abhorrence for her. Thus, the court said, in the context of her suffering and loneliness of a frustrated married life,
the husband created such a situation that it was impossible for the wife to stay any longer in the matrimonial home.
The husband, thus forcing the wife by his conduct to leave the matrimonial home, became himself guilty of
desertion, even though it was the wife who had left the matrimonial home.

In Shyam Chand v. Janaki1, where the husband asked for judicial separation on the ground of wife’s desertion, the
wife in her reply stated that she was maltreated, beaten up and turned out of his house by the husband. She further
stated that her husband kept her in village Bedar, while he himself lived at Ghorus and the food given to her at
Bedar was meagre. She was kept there in a cow-shed, was deprived of the company of her children, was beaten up
and ultimately turned out. Wife’s averments were proved2.

In Ashok Kumar Bhatnagar v. Shabnam Bhatnagar3, the husband petitioned for divorce on the ground of wife’s
desertion. It was established that wife was forced to leave the matrimonial home as she was constantly and
continuously harassed by the husband and in-laws with the demand of dowry and was ultimately abandoned by the
husband. It was held that wife was not guilty of desertion. There must be some positive evidence showing neglect,
indifference, abandonment or some overt act of estrangement on the part of one of them, so that the conduct may
amount to desertion1. In Parmod Purshottam Parkar v. Vasundhara2, the husband and wife were living separately
as they have not been able to pull on together. It was a broken marriage. It had gone on rocks. Thereafter the wife
gave a notice to her husband expressing her desire never to return to the matrimonial home. It was held that
desertion commenced from the date she gave notice. In Apurba Mohan Ghosh v. Manashi Ghosh3, the Calcutta
High Court said that if the spouses have not been able to live together and will not be able to live together as they
aver that they would not live together, then desertion has taken place and whosoever has given initial cause for
separation will be the deserter. It does not amount to desertion if wife is living separately with her child hoping that
her husband will join her to establish a matrimonial home4.

In sum, the expulsive conduct of a spouse falls in two categories: (i) Wherein one party physically expels the other,
and (ii) wherein one party orders the other out of matrimonial home. The case of Jyotish Chandra Guha v. Meera
Guha5, falls in the latter category while the case of Shyam Chand v. Janki6, falls in the former category. In every
case expulsive words should be clear to indicate the other spouse in fact wanted the petitioner to leave, i.e., they
(words) were used in a contest from which the only inference that could be drawn is that the other party in fact
wanted to turn her out. The words should not be spoken in anger or jest. Many a time, it happens that one spouse
says in anger or jest “get out from my house”. Sometimes, husband says to his wife “if you do not want to stay here
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you may go out, find your own place”. These words are merely permissive! The expulsive conduct must be such as
the other party is not reasonably expected to continue to live in the matrimonial home***6. Thus, it is not every order
which compels the other spouse to go. But whether or not a conduct expulsive enough to compel the other party to
leave the matrimonial home is a question of fact in each case. In every case, the statutory period of two years
should run out. If the conduct of the husband was such that it was impossible for the wife to continue to live there
and therefore she was forced to leave the matrimonial home. She is not guilty of desertion7. If persistent demands
of dowry forced the wife to leave matrimonial home, she is not guilty of desertion8.

The second category of cases are those, where one party has been guilty of such gross misconduct that it drives
away the other party from the matrimonial home. This means that the party who is so driven away is not the
deserter, but it is the party who drives him away. The English courts have construed this doctrine restrictively9,
emphasising the existence of both factum of separate and intention to desert on the part of the party so dubbed as
deserter1. In short the expulsive conduct should be such that reasonably the other party is not expected to endure2.
In the words of Denning, L.J., “Thus is yet another case in which the doctrine of constructive desertion has been
allowed to run wild. A wife leaves the home, refuses to return to it, and then promptly charges her husband with
constructive desertion”3.

In Renganayaki v. Arunagiri4, the husband has not only ill-treated his wife but also took a mistress and had sex with
her in the presence of his wife. The wife could not endure and left the matrimonial home. It was held that wife was
not in desertion. It is submitted that it was in fact the husband who was guilty of desertion on account of his
exculpatory behaviour who forced his wife to leave he matrimonial home. Similarly in Surendra Gayakwad v.
Janakbai Gayakwad5, wife left matrimonial home due to cruel treatment meted out by her husband. He had kept
another woman with whom he had 3 children. The husband was responsible for wife’s leaving home.

In constructive desertion, intention to desert is expressed when by his expulsive conduct or expulsive words,
deserter spouse acts and behaves in such a manner as to drive the other party out of the matrimonial home or
when he brings about cohabitation to an end. But, sometimes, difficulty arises “because often people desire a thing
but deliberately act in a way that makes that desire unrealistic”6. Thus in Long v. Long,***6 the husband assaulted
the wife, consistently abused her, forced intercourse on her in circumstances of calculated and revolving indignity,
yet he did not desire her to leave the matrimonial home. The husband probably did not realize and did not
appreciate that his persistent conduct and behaviour would in all probability result in wife’s departure. Or, may be,
he appreciated the probable result of his conduct, yet desired his wife to stay. In Wilkes v. Wilkes7, the husband
said to his wife “this is the end”, and thereafter never slept with her and refused to share her sitting room or to have
meals with her, although wife continued paying instalments of mortgage of the house which was in her husband’s
name, while the husband took food from her wife stove. It was held in both these cases that the husband was in
constructive desertion8. The same view was expressed by Delhi High Court in Lalita v. Harbans Rai9, wherein the
husband turned out his wife from the matrimonial home and thereafter made no efforts to get her back. The
husband was held to be in desertion. This is also the view taken by the courts in cases coming under the Indian
Divorce Act, 18691and the Parsi Marriage and Divorce Act, 1936.Dina Dinshaw Merchant v. Dinshaw Ardeshir
Merchant2, a case under Parsi law, indicates a very depressed life that husband was forced to lead: the wife, the
mother of four children, went much ahead to the wives in N. Sreepadachandra’s case, Dastane’s case and
Harbhajan Singh’s case. There was hardly a day when wife would not abuse, insult and humiliate her husband,
even in the presence of children and outsiders. She even committed acts of violence against her husband. He thrice
went in for divorce on the ground of cruelty, but withdrew the suit for the sake of children. He again filed the present
suit for divorce. After narrating acts of cruelty, the court observed:

The plaintiff says and submits that in the circumstances aforesaid, it had become impossible for the plaintiff to cohabit with
and have marital relations with defendant. By reason of the matrimonial offences aforesaid and/or grossly cruel and callous
actions of the defendant, the plaintiff was compelled to stay separately from the defendant and continue to stay and
withdraw himself from marital relations with the defendant and has thus ceased to cohabit with her since October, 1959 till
the date of the suit.

The suit for divorce was on the ground of constructive desertion. He was forced by the expulsive conduct of the wife
to leave the matrimonial home. The court found in favour of the husband and granted a decree of divorce. It is as
well-established proposition of law that where one party by his conduct forces the other to leave the matrimonial
home, the former is presumed to have requisite animus deserdendi and he would be guilty of desertion. It is
submitted that since the objective of a good divorce law is to protect the ill-used spouse, in cases like these it
should be conclusively presumed that the spouse intended the natural and probable consequences of his acts and
conduct. In Urmila Devi v. Deepak Kumar Vyas3, wife was ill-treated by the mother-in-law and brother-in-law and
she was forced to live separately. Husband was not willing to leave his mother and brother. In such a case wife
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demands to live separately is not unreasonable, and she would not be in desertion. If husband’s improper and
unreasonable conduct forces the wife to leave the matrimonial home, he is guilty of constructive desertion4. In sum,
irrespective of the facts whether the husband wished or did not wish his wife to leave the matrimonial home, if he
behaves in such a way that the wife cannot reasonably be expected to live with him she is entitled to a decree of
divorce, as husband would be deemed to be in constructive desertion.

Narinder Kumar v. Suresh Kumari1, is a good illustration of constructive desertion. Wife was living separately from
her husband for a period of eight years in the accommodation provided by the husband. He also paid for her
upkeep. But the wife persisted in filing all sorts of criminal complaints against the husband and his parents. It was
obviously a completely broken marriage. On husband’s petition for divorce, the court gave a finding that the wife
was in desertion.

The English Courts have held the following as facts and conduct amounting to constructive desertion:—
(a) Conviction for indecent exposure2,
(b) Druken behaviour3,
(c) Refusal of sexual intercourse4,
(d) Installation of a mistress in the matrimonial home by the husband5,
(e) Husband inducing his wife to believe that he was committing adultery6,
(f) Wife’s preference of cats over husband in the bedroom (she kept 25 cats)7.

The ingredients of actual as well as constructive desertion are the same: both elements, factum and animus, must
co-exist, in the former there is actual abandonment and in the latter there is expulsive conduct. Under constructive
desertion the deserting spouse may continue to stay in the matrimonial home under the same roof or even in the
same bedroom. In our country, in many a home the husband would be guilty of expulsive conduct towards his wife
by completely neglecting her to the extent of denying her all marital rights but still the wife, because of social and
economic conditions may continue to live under the same roof8.

Wilful Neglect
In the formulation of “desertion” under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 wilful
neglect is included as part of, or a type of desertion. Under the Dissolution of Muslim Marriages Act, 1939, the wife
can sue her husband for divorce on the ground that the husband has neglected or has failed to provide for
maintenance for a period of two years9. The neglect may be wilful or otherwise. The failure to perform marital
obligations, without any reasonable cause for a period of three years is also a ground of divorce under Muslim law.

Under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 “wilful neglect” as a ground for divorce has
come for discussion in a few cases. In Lachman Uttamchand Kirplani v. Meena1 (fact of the case have been stated
earlier), Subba Rao, J., (as he then was) made the following observation:

The words “wilful neglect” in the Explanation were certainly designed to cover constructive desertion in English law. If so, it
follows that wilful conduct must satisfy the ingredients of desertion as indicated above. Hence, the appellant cannot take
advantage of the inclusive definition unless he establishes all the ingredients of constructive desertion, namely, animus,
factum and want of just cause2.

The learned judge rejected the argument that by inclusion of the words wilful neglect, Parliament has enlarged the
scope of desertion. According to this argument ‘desertion’ would include conscious neglect on the part of the
offending spouse, without the requisite intention to desert. The learned judge has rejected this contention on the
specious argument that it would go much beyond the accepted meaning of desertion in English law. Somehow or
other we have not been able to shed our blind adherence to English law. Subba Rao, J., said:

...the history of the doctrine of desertion discloses some limitation thereon conceived in the interest of society and
Parliament by the inclusive definition couched in wide language could not have intended to remove those limitations. The
inclusive definition is only intended to incorporate therein the doctrine of constructive desertion known to English law and
the language designedly made wide to cover the peculiar circumstances of our society.
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Thus the learned judge admitted that scope of desertion was widened to cover our peculiar social circumstances.
He obviously did not spell those circumstances. It is submitted that wilful neglects adds new dimensions to the
notion of desertion, inasmuch as if the offending spouse consciously neglects the other party without any intention
to desert, it would nonetheless amount to desertion. An act or omission done by accident or inadvertence is not
wilful, nor is it, on the other hand, absolutely necessary that to be wilful, the act or omission should be deliberate
and intentional. Thus it will amount to wilful neglect if a person consciously acts in a reprehensible manner in the
discharge of his marital obligations, or consciously fails in a reprehensible manner in the discharge of these
obligations. In short, it connotes a degree of neglect which is shown by an abstention from an obvious duty,
attended by a knowledge of the likely result of the abstention. However, failure to discharge, or omission to
discharge, every marital obligation will not amount to wilful neglect. It will be a wilful neglect to fail to fulfil basic
marital obligations, such as denial of company or denial of marital intercourse. Failure to provide maintenance may
also amount to wilful neglect3.

The Punjab and Haryana High Court has made some observations on “wilful neglect”. They have employed the
doctrine of “wilful neglect” in support of the facts constituting desertion. In Tara Chand v. Narain Devi1, the husband
petitioned for judicial separation on the ground of wife’s desertion. But the averment made by the husband
constituting desertion were found to be false. The facts that emerged that on account of exculpatory conduct and
words of the husband, the wife was forced to leave the matrimonial home. M.L. Verma, J., observed that he had
never gone to the house of the parents of the wife to fetch her after September, 1968. He did not write any letter to
her to return to the matrimonial home and he also did not send any letter to the father of the wife to send her back
to the matrimonial home. He did not send any maintenance allowance to her either. This constituted wilful neglect
and the court found that in fact it was the husband who was guilty of matrimonial misconduct of “wilfully neglecting”
his wife. The learned judge said that “wilful neglect” means that the guilty spouse has been acting knowingly or has
been consciously failing in a reprehensible manner in the discharge of his or her marital obligations. In Balbir Kaur
v. Dhir Das2also, the husband petitioned for divorce on the ground of wife’s desertion and cruelty. But the facts that
emerged on the basis of evidence adduced by the parties were that not only was the wife inhumanly treated (on the
very day of reaching the matrimonial home wife had some pain in her abdomen but instead of providing medical
care to her she was sent back to her father’s house) on the very first day of her marriage but she was also
continuously neglected thereafter for a continuous period of two years. The Court also found that the husband went
to the extent to filing an application under section 97 of the Code of Criminal Procedure, 1973 containing express
allegations that she was being kept in illegal detention in the house of her own father. The court observed that there
could not have been a baser conduct than this to make such an allegation against his father-in-law who had in fact
given her shelter. In conclusion, the Court found that the husband has been wilfully neglecting his wife. M.R.
Sharma, J., observed that the husband right from 1971 onwards did not take any step for maintaining his wife or for
making arrangements for her to live with him. The wife did live with the husband for two days pursuant to the
warrant issued by the court under section 97 of the Code of Criminal Procedure, 1973 but this did not terminate the
desertion of the husband, and he continued to be in desertion for more than two years. Thus wilful neglect to
maintain the wife and wilful neglect to fetch her to the matrimonial home were considered to be facts constituting
desertion.

It is submitted that Parliament by including “wilful neglect” as a specie of desertion has deliberately made a
departure from the existing meaning of desertion. This has been done considering the social facts of our lives
where wives are deliberately, wilfully, neglected by the husbands, they are denied marital intercourse and they are
denied maintenance for long durations. Any of these acts may not by itself amount to desertion but these are
obvious cases of wilful neglect which cause untold misery and suffering and mental torture to wives. It seems for
this reason Parliament specifically included “wilful neglect” a special type of desertion. This would be clear when
one looks to an analogous provision of Muslim law where refusal or failure of the husband to maintain his wife for a
period of two years or more entitles the wife to sue for divorce.

Failure or Neglect to Maintain the Wife: Muslim Law

Under section 2(ii) of the Dissolution of Muslim Marriage Act, 1939, the wife can sue her husband for divorce on the
ground that the husband has neglected or failed to provide for her maintenance for a period of two years. As is
evident from the language of the clause, this ground is in a sense much wider than “wilful neglect” as neglect may
be wilful or inadvertent, the husband will be at fault. On the other hand, it is narrower in the sense that failure or
neglect relates to one matter only, namely, maintenance. But clause (iv) of section 2 of the Act is much wider.

Failure to maintain may be wilful or otherwise.—The courts have consistently taken the view that the failure of
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Chapter VII FAULT GROUNDS OF DIVORCE

the husband need not be wilful. Of course, if it is wilful she is entitled to divorce. But she is entitled to divorce even if
the failure to maintain her arises on account of his poverty, failing health, loss of work or imprisonment. In Najiman
Nissa Begum v. Serajuddin Ahmed Khan1, on husband’s failure to pay prompt dower, the wife sued him for its
recovery and he took several pleas, such as there was no agreement to pay it, the wife had relinquished it. But all
pleas failed. The suit of wife was decreed. But still he did not pay it. Wife refused to live with him. The husband did
not provide her any maintenance. On wife’s suit for dissolution of marriage on the ground of husband’s failure to
maintain her more than two years, the court decreeing her suit observed that since before the institution of suit by
the wife the husband had not provided her with maintenance, not had he provided it after the institution of suit, the
wife was entitled to the decree. The husband’s attitude all along had been that he was not bound to pay her any
maintenance unless wife came to live with him, while under Muslim law she was not bound to do so till her prompt
dower was paid. The court also gave the finding that the husband had deliberately neglected to maintain his wife.

In Kochn Mohammad Kunju Ismail v. Mohammad Kadeja Umma2, the Kerala High Court said that Muslim wife
could obtain divorce from her husband if he had failed to maintain her for a period of two years or more, irrespective
of the fact whether his failure arose out of his wilful neglect or inability to provide maintenance to her. The court
added, it was absolutely immaterial whether the failure to maintain arose due to his poverty, failing health, loss of
work, imprisonment or any other cause whatsoever. In Zainaba v. T.A. Abdul Rasheed3, wife was granted divorce
on the ground that the husband had failed to maintain her for a period of more than 2 years. Court further observed
marriage was irretrievably broken down as the parties did not live together since many years. Husband subjected
her to both physical and mental cruelty. In Manak Khan v. Mulkhan Bano4, the failure of the husband arose because
he was in jail for several years. Trial court took the view that since failure to maintain was not wilful, the wife was not
entitled to divorce. The High Court reversing the decree of the trial court, observed that section 2(ii) of the Act
merely provided that wife was entitled to divorce on the ground that her husband had failed to provide her
maintenance for a period of two years. There was nothing in the wording of the clause to suggest that failure must
be wilful.

Intermittent maintenance without an intention to continue to maintain does not constitute maintenance. The
maintenance contemplated under section 2(ii) includes food, raiment and lodging adequate to her station in life. In
every case, adequacy of maintenance is a question of fact. In other words, maintenance cannot be illusory. In
Satgunj v. Rahmat Dil Murad1, the husband took two pleas in his defence. First, that he had been suffering from eye
trouble for several years and he had to go to his native place for treatment where he had to live for years and
therefore was not able to earn sufficiently to maintain his family. Secondly, he averred that intermittently he had
been providing some maintenance to his wife. On the first contention, the court held that the provision of the Act
could not be defeated by half hearted attempts to maintain the wife and that it was absolutely immaterial that
husband failed to maintain his wife on account of unemployment or poverty. On the second contention, the court
said that “illusory” maintenance is no maintenance and the provision could not be defeated just because the
husband paid some maintenance, sometimes. But the court added that whether the maintenance is illusory or
insufficient is a question of fact in each case. All facts of the case and surrounding circumstances are to be taken
into consideration. The Court, on the facts and circumstances of the case, found that husband had not failed to
maintain the wife. O’ Sullivan, J., said “I am not satisfied that the provision he was making during five or six months
he was with his wife was so unreasonably inadequate as not to constitute maintenance at all within the meaning of
the Act.”

Maintenance should not be illusory or inadequate.—It is now an established view that the maintenance that the
husband pays to the wife should not be name-sake or illusory. Thus he cannot defeat wife’s suit for divorce by
showing that once during last two years, prior to the suit, he had provided her or sent her some maintenance.
Husband’s half hearted attempts to provide maintenance will not do. Maintenance must be full as contemplated
under Muslim law2. In Raj Mohammed v. Saeeda Amina Begum3, the wife called upon the husband to pay her and
the children of marriage maintenance. The husband had also filed a suit for restitution of conjugal rights. During the
pendency of the suit, he took another wife. The court rejected husband’s petition for restitution of conjugal rights, as
failure to provide her maintenance was a good defence, as on this basis wife could sue him for divorce.

Wife who refuses to live with her husband for unjustifiable reason.—The wife would obviously be entitled to
maintenance if she lives away from the husband for a justifiable cause. For instance, if wife refuses to live with the
husband on account of non-payment of prompt dower, she would be entitled to divorce if her husband does not pay
her maintenance for two years1. But can she forfeit her right if she has no justifiable reason to live apart from her
husband? There is some controversy among the court on this matter. The Allahabad High Court in Badrulnisa Bibi
v. Syed Mohammad Yusuf,2 took the view that the word “neglect” implies wilful failure and the words “has failed to
provide” imply an omission of duty, and thus if wife by her own conduct impels the husband not to pay her
maintenance, she is not entitled to divorce on the ground of husband’s failure to maintain her, as that would amount
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to giving her an advantage of her own wrong. Thus, the Court held that where the wife is entirely to blame and no
blame attaches to the husband she cannot be granted divorce3. In Jamila Khatun v. Kasim Ali Abbas Ali4, the
Nagpur High Court also took this view. It observed that where the wife voluntarily and without any reasonable cause
refused to live with her husband even though the husband was willing to maintain her in his own house, it could not
be said that there was neglect or failure to maintain her. The court added that the Act codified a portion of Muslim
law and wife’s right to divorce must be construed in the backdrop of Muslim law. That is to say, the words “to
provide for her maintenance” mean that maintenance is payable to her only in such circumstances under which she
could claim it under general principles of Muslim law. In other words, it must be shown that the husband was under
a legal duty to provide maintenance to the wife, and if the husband is not, under Muslim law, bound to maintain her,
such as when she was living away from him unjustifiably, she cannot sue him for divorce under the clause.

This view has been also taken by the Rajasthan High Court5, the Peshawar High Court6, and the Dacca High
Court7.

In Akbari Begum v. Zafar Hussain8, the Lahore High Court took a contrary view. According to it, whatever the cause
may be, the wife would be entitled to a decree of divorce if the husband fails to maintain her for a period of two
years even though wife might have contributed towards husband’s failure to maintain her, since the words “without
reasonable cause” or words of similar import had not been enacted in the clause9. In Noor Bibi v. Pir Bux10, the Sind
Chief Court took a similar view. The court said that if the husband has failed or refused to maintain his wife, for a
period of two years or more, she is entitled to divorce in spite of the fact that on account of her conduct in refusing
to live with him, she would not have been entitled to enforce her claim1.

The rationale for this view may be best explained by quoting the observations of the Lahore High Court in Bilquis
Fatima v. Najmul Ikram2. The court said: under Muslim law the wife is, even apart from the provisions of the
Dissolution of Muslim Marriages Act, entitled to Khula as of right, if she satisfied the conscience of the court that it
will otherwise mean forcing her into a hateful union. This view was approved by the Pakistan Supreme Court3.

The view expressed in Noor Bibi v. Pir Bux4 has been followed in A. Yousuf Rawther v. Sowramma5, and Ittoochalil
Meethal Moossa v. Pachiparambath Meethal Fathimas6. The court, after holding that under the clause the wife is
entitled to divorce on the ground of husband’s failure or refusal to maintain her whether or not the husband has a
reasonable cause for withholding maintenance, explained the rationale thus:

The husband has absolute power to liquidate the marriage by pronouncement of ‘talak’. The wife’s right for dissolution of
marriage is confined to those grounds enumerated in clauses (i) to (ix) of section 2 of the Dissolution of Muslim Marriage
Act. If the husband wants the marriage relationship to continue he should see that the wife does not get a ground under
clause (ii) of section 2 to approach the court for a decree dissolving the marriage. If the wife is of immoral character or she
deliberately and against the wishes of her husband lives away from him without giving him her company, it is open to the
husband on his own accord to pronounce ‘talak’ and divorce her. If, however, he wants to retain the relationship between
the parties, he may have to provide for the wife’s maintenance whether she deserves it or not. The duty to provide
maintenance to the wife under these circumstances is only self-imposed to keep the relationship intact, and it is not a duty
corresponding to the right of the wife to claim maintenance7.

On these observations Danial Latifi8 said that the decision is unexceptionable. Balakrishna Menon, J., was right in
following the judgments of Tyabji, C.J.9 and of Krishna Iyer, J.10, in preference to judgments of some other High
Courts which take a contrary view11.

The period of two years.—The husband’s refusal or failure to maintain his wife would give the latter a cause of
action for divorce on the expiry of a period of two years. This period of two years should be continuous, unbroken
period. If the husband is providing her maintenance of and on, and at no time he had failed or refused to maintain
her for a continuous period of two years, then the wife has no right to sue for dissolution of marriage under this
clause. Several short periods of failure or refusal to maintain cannot be aggregated to two years for claiming divorce
under this clause. In Satgunj v. Rahmat1, the Sind Chief Court said that the clause contemplates an unbroken
period of two years before the suit. A period of two years means an unbroken period of two years and not period
aggregating two years. The period must be that immediately preceding the suit and not an earlier period of two
years which has been followed by a period during which the wife has been maintained. However, in Ashmabai v.
Umar Mohammed2, the husband had failed to provide maintenance for his wife for a period of ten years, but paid
some maintenance for some months during the two years preceding the wife’s suit for divorce under a maintenance
order passed under section 488 of the Code of Criminal Procedure. It was held that this did not interrupt the period
of two years. In Dastgir v. Sharifunnia3, a decree for restitution of conjugal rights was passed in favour of the
husband on the conditions that he would pay her prompt dower immediately and provide security for properly
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Chapter VII FAULT GROUNDS OF DIVORCE

maintaining her. Since he did not comply with the conditions of the decree and failed to provide her with
maintenance, it was held that the wife was entitled to a decree of divorce in her suit under the clause and the
husband could not defeat wife’s suit for divorce by showing that once in two years, he had sent her some money for
her maintenance. The court observed that half hearted and sporadic attempts to provide her with maintenance are
not what is contemplated under Muslim law and these cannot defeat her suit for maintenance4.

Jurisdiction.—The jurisdictional rules for filing a suit for divorce are laid down by the Code of Civil Procedure,
1908. Under section 20 of the Code, the suit can be filed either at the place where cause of action arose (i.e., where
the wife lives, as maintenance has to be paid there5) or where defendant resides.

Failure to Perform Marital Obligations: Muslim Law

Clause (iv) of section 2 of the Dissolution of Muslim Marriage Act, 1939 lays down that if “the husband has failed to
perform without reasonable cause, his marital obligations for a period of three years” the wife is entitled to sue for
divorce. This clause is wide enough to include failure of any marital obligation and does not necessarily mean total
cessation of cohabitation. Of course, if a husband does not cohabit with his wife (which would, it is submitted,
amount to desertion), under this clause wife can sue for divorce. But she can sue for divorce for his failure to
perform any of his marital obligation. The conditions are two:
(i) it should be continuously for a period of three years, and
(ii) it should be without any reasonable cause.

Period of three years.—The clause does not use the word “continuously” with the words “for a period of three
years”, but it is submitted that is what the clause means. It has been said earlier in connection with clause (ii) where
the period is two years, and the word “continuous” has not been used, but the courts have held that it must be a
continuous period of two years and several short periods cannot be aggregated to two years. It is submitted that the
same would be position under the present clause1.

Reasonable cause.—Reference may be made to the next title “Reasonable excuse”. Under Muslim law the term
will have the same meaning.

Marital obligation.—The Dissolution of Muslim Marriage Act, 1939 does not define marital obligations. It is
submitted that the expression “marital obligation” will mean basic marital obligations recognized under Muslim law.
These are:
(a) Equal treatment of the wife.—Under clause (viii) of section 2 of the Act this is now a specific ground of
divorce, being considered cruelty to the wife.
(b) Maintenance.—This is also a specific ground of divorce under clause (ii) of section 2, it has already been
discussed under the preceding title.
(c) Sexual intercourse.—Sexual intercourse, i.e., the marital right to it flows directly from the Muslim concept of
marriage. But denial should be of a reasonable claim. It would mean the same thing which we have
discussed in the ground of “cruelty” under this title.
(d) Right to separate apartment or at least a separate room.
(e) Dower.—We have already seen that if wife is not paid prompt dower, she can refuse conjugal right to her
husband.
(f) Right to visit.—The Muslim wife has right to visit her relations and she has a right to be visited by them.
The restriction of this right should not be unreasonable.

Reasonable Excuse
As has seen above that if desertion is for a justifiable reason or excuse or if there is consent of the other party, legal
desertion does not take place. In short, if there is a justification for abandoning or forsaking a spouse permanently
then no desertion is constituted.
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Chapter VII FAULT GROUNDS OF DIVORCE

In Chapter IV of this work, in connection with restitution of conjugal rights, the meaning of the expressions
“reasonable excuse” or “reasonable cause” have already been explained. Reference may please be made to the
same. Here some illustrative cases are being discussed. Reasonable cause may be provided by:
(a) necessity, or
(b) petitioner’s behaviour.

Necessity.—Where parties are separated because one of the spouse is sentenced to a term of imprisonment. in G.
v. G.2, Sir J. Simon, P., observed:

...a husband may be deported or a wife may be sent to prison for life; each such circumstance affords good cause for
separation, and in the absence of any further circumstances neither husband nor wife could be termed a deserter. Similarly,
it seems to me that if the health of one spouse demands a state of isolation or separation, the law would be flying in the
face of good sense if it were not to recognise that as affording justification for the spouse living separately.

In this case the behaviour of the husband terrified the children and therefore the wife did not allow him to enter into
the matrimonial home. The Court said that the wife was justified in her action, even though the husband might not
have been responsible for his behaviour. Similarly, where husband separates from his wife and leaves the
matrimonial home, for medical treatment, he will be guilty of desertion if he later on conveys to his wife that he
would not return to her even on recovery. But if he says “I cannot return to you at present”, he is not a deserter. But
if he says, “I will never return to you”, he will be deserter1. In Powell v. Powell2, the English climate did not suit the
wife who belonged to Greece and therefore she left the matrimonial home for her native land and refused to return.
The court did not accept the plea of necessity and held her guilty of desertion.

Petitioner’s behaviour.—If petitioner’s behaviour has been such as justify respondent’s departure from the
matrimonial home, the respondent will not be in desertion. This aspect of the matter has been discussed in Chapter
IV of this work, under three-fold heads: (i) that which constitutes a ground for any matrimonial relief, (ii) marital
misconduct short of a ground, and (iii) a behaviour which makes it impossible for the respondent to live with the
petitioner. Here a few more illustrative cases are being reviewed. However, reference should be made to Chapter
IV for the meaning of the expression “reasonable cause”.

In some old English cases, courts emphasised that respondent’s departure from the matrimonial home should be
for a “grave and weighty” reason, though injury to health need not be shown3.

Habitual drunkenness making it unsafe for the wife and children4, physical violence by a spouse5, mental cruelty6,
reasonable belief in wife’s adultery (but should not be based on hearsay)7, excessive and perverted sexual
demands of the husband8 have been held to amount to reasonable excuse. It has already been discussed in Rohini
Kumari v. Narendra Singh9. In this case as a question of fact, the court found that husband’s second marriage did
not have any impact on the wife to continue in desertion and therefore this did not provide a reasonable excuse for
her to desert. It is submitted that this finding should be confined to the facts of the case, otherwise, wherever a
person take a second spouse it is a reasonable excuse.

It will not be a desertion if a person is compelled to live outside the matrimonial home where work compels the
husband to live at a separate place1. Similarly extravagance of the wife***1 and mental incapacity2 do not constitute
desertion.

It has been held that the respondent will not be considered in desertion and it will be a reasonable excuse to live
separate, where a wife went to parents after obtaining her husband’s consent and the husband did not make any
attempt to bring her back to the matrimonial home3, where husband left the wife to her parent’s home for
confinement4, where the wife was living separate from the husband in a room provided by him as he had a second
wife5, where a sick wife was sent to her parent’s home for treatment but husband made no effort to fetch her back6,
where the wife living separately on account of her job and it was found that the husband did not like her
temperament and looks7, where the husband compelled his wife go to her parents home8 or himself leaves her
there9, or where wife goes for her delivery to her parents home, with his consent10.

Consensual Separation or Living Separate with Consent

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Chapter VII FAULT GROUNDS OF DIVORCE

Where one spouse leaves the matrimonial home with the consent of the other, the former is not in desertion.
Wherever separation is with the other part’s consent, express or implied, there is no desertion. Where parties are
living separate under a separation agreement, this is the most obvious case of consensual separation. In other
words, where both the parties consent to a separation, there cannot be any desertion. Whether or not the
separation is consensual is a question of fact in every case. Thus, for instance, in an English case Crabtree v.
Crabtree11, under a so-called formal separation agreement the husband had agreed to provide maintenance to his
wife. The court found that it was simply an agreement under which husband was providing maintenance to his wife
and it was not an agreement to live separately12. In Pardy v. Pardy13, the court said that even if parties were
separated under a formal separation deed, this would not be effective if one of the spouses was in a fundamental
breach of his duties under it, such as failure to provide maintenance and the other elected to treat the agreement as
repudiated, the separation no longer remains consensual1.

An agreement to separate may be implied. In Joseph v. Joseph2, the wife, who was a Jew, obtained get (non-
judicial divorce under jewish law). This divorce is not recognized under English law. But the law construed get as
showing that wife had no objection in her husband living separate. In other words, this was construed a consensual
separation. In Suresh Kumar Gulati v. Suman Gulati3, admittedly the wife had left the matrimonial home with all her
belongings, clothes, ornaments and everything belonging to her and was living separately from him on account of
exculpatory conduct of the husband. Later on husband tacitly agreed to her living away. Some deeds were also
executed between the parties. The Court said that this could at best amount to living separately from each other
under an agreement. In view of this, the Court held that since wife was living separately to which husband has
consented, she was not in desertion. Sukhama Devi v. Niranjan Singh4 is an interesting case. As was the custom
among the parties, soon after the marriage, the wife’s brother took her back to her parents home, with the consent
of the husband. Thereafter the husband was to take her to matrimonial home. But he did not do so. The Court
construed this as wife’s living separate from him with his tacit consent and therefore, she was held not guilty of
desertion. However, the fact that one spouse is happy on other’s departure does not mean that he has consented to
the other’s leaving the matrimonial home5. The court has to make allowance for emotional realities of the situation.
Thus, where the wife says to her husband “Go, if you like, and when you are sick of her come back to me,” there is
no consent to separate on the part of the wife.

In every case, consent must be free and voluntary and not obtained by force or fraud6.

Even when desertion has commenced parties can enter into a separation agreement. In that case desertion would
come to an end7. In the reverse, an agreement under which parties are living separate for an indefinite duration
may be terminated by either party8. Of course, where the agreement to live apart is illegal, it has no effect. It can be
terminated by either party at any time, and the party who refuses to resume cohabitation will be deserter9.

Where the husband pays maintenance to a wife who is living separate from him, it does not mean that husband had
consented to her living apart. Unless consensual separation is shown she will be considered to be in desertion and
the husband can file a petition for divorce or judicial separation after the completion of the statutory period of
desertion1.

Statutory Period of Desertion

We have seen earlier that legal desertion as a ground of divorce or judicial separation is constituted only when
statutory period is complete. Under all the matrimonial statutes statutory period is of two years.

In every petition for a matrimonial relief on the ground of desertion, it is necessary to show that a period of two
years has elapsed immediately before the filing of the petition. The period must be without a break, i.e.,
continuous2.

It is a unique aspect of desertion that desertion is an inchoate offence and it is complete only when petition is filed
and no petition can be filed unless the statutory period is completed. This means that desertion can be terminated
before a petition is filed. It is also a continuing offence. It continued day after day till the petition is filed on the
completion of the statutory period (then it becomes completed), or if before that something is done towards
resumption of cohabitation, then it stands terminated. In other words, desertion is not constituted or completed even
on the completion of the statutory period, as before a petition is filed if the deserter spouse takes steps by act or
conduct to resume cohabitation, the desertion may be terminated. It is constituted or completed only when after the
completion of the statutory period, the deserted spouse files a petition in the court for the matrimonial relief. The
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Chapter VII FAULT GROUNDS OF DIVORCE

peculiar aspect of desertion is that it can be terminated at any time at the initiative of deserter spouse before the
petition is filed whatever may be the duration of desertion two years or more.

However, minimum period of 2 years is laid down. If petition is filed after a period of a little more statutory period
has elapsed, it cannot be dubbed as unnecessary or improper delay.3

Under the Matrimonial Causes Act, 1973, if parties resume cohabitation during the period of desertion with a view to
effect reconciliation, but the desired reconciliation does not come about, then desertion is not terminated but the
period during which parties lived together will be deducted. In other words, now under English law an aggregate (as
distinguished from continuous) period of two years’ desertion is to be shown before filing the petition. For instance,
if P deserted Q on January 1, 1985, but resumed cohabitation with a view to effecting reconciliation on March 31,
1986 and lived here upto July 31, 1986 but left as no reconciliation could be effected. Q cannot file the petition on
January 1, 1987, but only after April 1, 1987. Section 2(5) of the Matrimonial Causes Act, 1973 runs:

In considering for the purpose of section 1(2) above whether the period for which the respondent has deserted the
petitioner...has been continuous, no account shall be taken of any one period (not exceeding six months) during which the
parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the
period of desertion...

Under none of the Indian matrimonial statutes there is such provision, but it is submitted that by judicial
interpretation one can arrive at the same result, since conditional resumption of cohabitation (such as when the
deserter spouse of his own or on the persuasion of others says “Alright I can once again try to save the marriage by
resuming to live with my husband, but I want to make it clear that if the desired result is not reached, I am free to go
away”), is no resumption of cohabitation and it cannot and should not terminate desertion.

Termination of Desertion
As has been seen earlier that desertion as a ground of matrimonial relief differs from other grounds, such as
adultery or cruelty, in that the offence founded on the cause of action of desertion is not complete until the petition is
filed. This is not so with adultery, where once an act of adultery is committed, the cause of action is complete and
nothing can be done to wipe it out. This is so with all other grounds. But desertion is on a different footing. It means
that desertion can be terminated at any time before the petition is filed. It needs to be emphasised that the state of
desertion can be brought to an end not merely before the completion of the statutory period but also after the period
had run out, at any time, before the petition is filed.

Desertion may come to end by any one of the following modes:—

(a) resumption of cohabitation, (b) resumption of marital intercourse, (c) offer of reconciliation (supervening animus
revertendi), (d) supervening agreement to separate, or, (e) supervening insanity, or, (f) supervening marital
misconduct.

Resumption of Cohabitation.—Resumption of cohabitation is the most common case of termination of desertion.

At any stage of desertion if parties come together and resume cohabitation, desertion will come to an end.
Resumption of cohabitation must be by mutual consent of both parties and it should imply complete reconciliation.
Thus, if deserting spouse comes and stays in the matrimonial home for a couple of days without intending to
reconcile or resume cohabitation, it does not terminate desertion. The desertion would come to an end only when
he or she goes to matrimonial home mentally prepared to resume cohabitation. If parties decide to live once again
as husband and wife and they start living as such, it is enough to establish resumption of cohabitation. It is not
necessary to prove that marital intercourse was also resumed.

Previous cohabitation is essential for pleading desertion, except in cases of mental or physical incapacity or other
special circumstances, Savitri Pandey v. Prem Chandra Pandey.1

In the case of M. Aruna Kumari v. A.V. Janardhana Rao,2 a decree for divorce was granted by the High Court taking
the view, based on entire evidence on record, that there had been no resumption of cohabitation between the
parties for a period of one year from the date of decree for judicial separation. The Supreme Court, having regard to
the judgment of the High Court and evidence on record, held that finding of the High Court could not be said to be a
finding on no evidence.
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Chapter VII FAULT GROUNDS OF DIVORCE

Resumption of marital intercourse.—Resumption of marital intercourse is an important aspect of resumption of

cohabitation. Sometimes resumption of marital intercourse may terminate desertion. If resumption of marital
intercourse was a step towards the resumption of cohabitation, it will terminate desertion even if the parties are not
able to live together, because the deserted spouse backed out. But, desertion cannot be put to an end by casual
act of intercourse. In Perry v. Perry1, it was held that casual acts of intercourse should not be regarded as proof of
resumption of marital relationship where a wife, though participating in such acts, in all other respects repudiated
the relationship.

Offer of reconciliation.—Animus revertendi means intention to come back to the matrimonial home. If the spouse
in desertion expresses an intention to return, this would terminate desertion. It is a basic principle of matrimonial law
that a spouse who has been deserted must take back his deserter-spouse, and thereafter his desertion is at an end.
If he will not receive her, he becomes himself a deserter. He cannot say: “You have deserted me, I will not forgive
you for running away and therefore you cannot return”. During the whole of the current period he must affirm the
marriage2. The offence of desertion will become complete when he files a petition for divorce, and thereafter he has
no obligation to receive her back.

Even where parties are living separate under a separation agreement, if either party withdraws his consent to the
separation, the other is bound to resume cohabitation, and if she does not, she will become deserter from then
onward3.

Both the above propositions are in fact corollary to the fundamental requirement of desertion namely, intention to
desert. Physical separation of parties should be accompanied by an intention to desert—the deserter must intend to
destroy the marriage. But the moment, he decides to come back, the intention to desert comes to an end and the
party is no longer in desertion. If his offer is spanned, the other party becomes a deserter. Obviously, this can be
misused and manipulated by providing a defence to a deserter spouse. Such an offer can be made with impunity
when it is known that neither party is serious to resume cohabitation. The case of Bipin Chandra v. Prabhavati4,
provides a very good illustration.

The requirement of a valid offer at reconciliation or resuming cohabitation are the following:—
(i) offer must be genuine,
(ii) offer must not be hedged with unreasonable conditions,
(iii) offerer must not be guilty of any other matrimonial misconduct.

Offer must be genuine.—The first requirement of an offer to resume cohabitation is that offer must be genuine,
i.e., it should be an offer to return to matrimonial cohabitation permanently, offerer having both the intention and the
means to implement it if offer is accepted1. The offer must be made in good faith and for resumption of full-fledged
cohabitation. It should not be just to forestall or defeat the impending judicial proceedings. Suppose, a husband
who has deserted his wife, makes an offer to receive her back in proceeding filed by her for maintenance under
section 125 of the Code of Criminal Procedure, 1973 or under section 18,Hindu Adoptions and Maintenance Act,
1956. Such an offer may not be genuine and may be made just to defeat the maintenance proceedings. In Shyam
Chand v. Janki2, the wife who was turned out by the husband from the house applied for maintenance. These
proceedings were compromised and the husband agreed to have the wife back and maintain her. But subsequently
he backed out. Later on also when some people approached the husband and asked him to take back the wife he
refused and threatened that he would file proceedings for divorce. This conduct of the husband virtually amounted
to driving away the wife from the matrimonial home. Subsequently, he filed proceedings for judicial separation on
the ground of wife’s desertion. The trial court rejected his petition. He appealed and before the appellate court made
an offer to take back the wife. It was held that the offer did not evince any change of heart on his part and it was not
sincere and genuine. Therefore, the wife was justified in rejecting it. On the other hand, in case husband and wife
separated under an agreement and subsequently the husband in personal conversation and in letters wrote to his
wife to come back and live with him, but the wife refused. On husband’s petition for divorce, on the ground of wife’s
desertion, it was held that offer for the resumption of cohabitation was genuine and therefore she was guilty of
desertion3.

In an offer for reconciliation, the law is concerned with obligation and not affection. In Price v. Price4, the wife hated
the husband and she had been hating him for quite sometime before she left him. But nonetheless, she offered to
join him to be maintained by him. The Court of Appeal said that her offer was genuine5. Where an offer is a mere
stratagem to interrupt the period of desertion it is not a genuine offer6. In Shyam Chand v. Janki***2, a wife who
was turned out by the husband from the matrimonial home filed maintenance proceedings. These proceedings were
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compromised and the husband agreed to have the wife back and maintain her. But subsequently he backed out
and filed proceedings for divorce. His petition was rejected. He filed an appeal. At the hearing of his appeal, he
made an offer to take back the wife. The wife rejected it. It was held that offer was not genuine and sincere. In Dunn
v. Dunn7, the wife turned out the husband from the matrimonial home, refused to let him have the keys of the
house, and otherwise ill-treated him and made unjustified charges of cruelty against him. Subsequently, she sent
him an invitation to return couched in affectionate terms. The court held that offer was not genuine and sincere.

Offer must not subject to unreasonable conditions.—The offer must not only be genuine, but it should not be
hedged with unreasonable conditions1. But reasonable conditions can be attached to an offer. In Krishnabai v.
Punamchand2, the wife had deserted the husband. In her defence to husband’s petition she pleaded that she was
forced to leave the matrimonial home because her father-in-law misbehaved with her and she had made an offer
earlier and even in the proceeding she offered to live with him on the condition that her husband should live with her
in a separate matrimonial home. The court found on evidence that there was nothing to show that the father-in-law
misbehaved with her. About her offer of reconciliation the court said:

Now her offer that she would only live with her husband if he lives separately from his parents is an offer which is no
conciliatory but hedged in with an unreasonable qualification or condition. It is to be borne in mind that the respondent is the
only son of his parents. There is no ground shown whatsoever why should he live separately from his parents and her
condition being an unreasonable one which is sought to be imposed not in good faith.

The case of Barret v. Barret3, provides a good illustration. In 1941 the wife deserted her husband taking with her
three daughters of the marriage whose ages ranged between 17 to 19 years. After a while the husband asked her
to return but refused to have the daughters back. The wife declined the offer. In the husband’s petition for divorce
on the ground of wife’s desertion it was held that desertion terminated when the husband refused to take back the
daughters, since there was nothing in the conduct of the daughters to justify him in refusing to have them back and
it was not unreasonable of the mothers to decline to leave them to fend for themselves in view of their ages. On the
other hand, if the deserter-spouse has given the other spouse just cause to live separate and apart from him, the
deserted spouse is entitled to refuse an offer to return either outright or to put conditions on the deserter-spouse
that he would abide by the assurances of better behaviour for the future.

Mere notice by husband to wife for returning to matrimonial home without making any effort in that regard does not
prove desertion by wife especially if such notice is brought with legal consequences as well4.

Offerer guilty of another matrimonial misconduct.—The desertion would not stand terminated by the offer of
deserter spouse to resume cohabitation if the other spouse had left the deserter for a reasonable cause, such as
where wife leaves the matrimonial home on account of husband’s adultery and if the husband makes an offer that
she should join him, this will not terminate desertion. (Obviously, this is a case of constructive desertion.) She need
not accept the offer and if she refuses she would not become deserter1. The same will be the position if she left her
husband on account of his cruelty. In short, wherever there is a reasonable cause for a spouse to leave the
matrimonial home, the refusal to accept the offer of resuming cohabitation will not result in the termination of
desertion2. But if the deserter-spouse has committed another matrimonial offence or has been guilty of some gross
or outrageous misconduct (providing reasonable excuse) no spouse is expected to take him back. A spouse who
rejects the offer to resume cohabitation as it does not contain adequate assurances for the future conduct should
specify the promises or assurance she is seeking. Otherwise, it may be inferred that a bona fide offer has been
rejected without any cause3.

Separation agreements.—While one of the parties to the marriage is in desertion, if spouses enter into a
separation agreement, desertion would come to end, as from the date of the agreement, desertion becomes
consensual. If parties continue to live separately by virtue of the separation agreement, neither spouse would be in
desertion4.

Supervening insanity.—Since in desertion, the intention to desert should continue during the entire statutory
period and thereafter till the petition for matrimonial relief is filed by the party, at English common law a view was
held that if the spouse in desertion became insane so as to be not capable of retaining the animus deserdendi, the
desertion would stand terminated. So far there is no Indian case of this aspect of desertion. This common law rule
is likely to cause great hardship on the deserted spouse as more likely than not the deserter-spouse would have
stayed in desertion. The Matrimonial Causes Act, 1973 now provides that the court may treat a period of desertion
as having continued at a time when the deserting party was incapable of continuing necessary intention if the
evidence before the court is such that the court would (in the absence of incapacity) have inferred that the desertion
continued5.
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May be, when a case of this type comes before an Indian court, it would be in a predicament as on principle the
supervening insanity would terminate desertion and in the absence of statutory provision, it may not be able to
mitigate the hardship.

Supervening marital misconduct.—The situation contemplated under this head is: suppose the non-deserting
spouse, during the period of desertion of the other spouse, commits a matrimonial misconduct, such as adultery or
cruelty, or a lesser matrimonial misconduct which is equivalent to reasonable excuse, then desertion would cease
as this provides a reasonable cause for the deserter-spouse to remain in separation6. Unless it can be shown that
deserter would not have, in any circumstances, returned1. Similarly, if a decree of judicial separation is passed,
desertion would terminate as then it ceases to be obligatory for either party to cohabit. Desertion can subsist only
so long as there is a duty to cohabit.

Burden of proof and quantum of proof.—It is an established view that the onus of proving desertion and all its
elements, such as fact of separation, intention to desert, desertion was without reasonable cause or without the
consent or against the wishes of the petitioner and that it continued for the entire statutory period is on the
petitioner2. The Supreme Court and other High Courts, following English decisions, said that the petitioner must
prove desertion beyond all reasonable doubt. But after Dr. N.G. Dastane v. S. Dastane3, it has been held that
matrimonial offence may be proved on preponderance of probabilities. In Ratneshwar Misra v. Prem Lata Devi4, the
Madhya Pradesh High Court, after observing the basic elements of desertion are factum and animus, said that
desertion can be proved on preponderance of probabilities and it is no longer necessary to establish the ground
beyond all reasonable doubts. In this case the court also added that where the respondent chooses not to lead any
evidence or to cross-examine the petitioner or his witnesses, corroboration of petitioner’s evidence was not
necessary5.

In K. Narayanan v. K. Sreedevi6, the Kerala High Court said that where there was no evidence to show that wife
wanted to stop cohabitation permanently, and evidence of desertion on the part of the husband was slender,
petition could not be granted.

The Supreme Court has put its seal of approval on the view that if a marriage is totally dead and the parties have
been litigating for long time. The marriage is beyond redemption then to put an end to the misery of parties and to
litigation, divorce may be granted on a fault ground.7

Cruelty
Cruelty is a ground of divorce as well as judicial separation under the Hindu Marriage Act, 19558, the Special
Marriage Act, 19549and the Parsi Marriage and Divorce Act, 1936. Under the last statute “voluntarily causing
grievous hurt” is also a ground for divorce10, under the Parsi law if behaviour of defendant is such as to render, in
the judgment of the court, improper to compel the other party to live with the defendant divorce may be obtained1.
Under the Indian Divorce Act, 1869, wife can sue for divorce on the basis of husband’s adultery coupled with such
cruelty as without adultery would have entitled her to a divorcea mensa et toro2, while “cruelty” as such is a ground
for judicial separation3. In Swapna Ghosh v. Sadananda Ghosh4, a Special Bench of the Calcutta High Court said
that for Christians, desertion and cruelty are not grounds of divorce, while these are for other communities and
therefore the provision is discriminatory. But, still, the Court declined to hold the provision unconstitutional. Under
Muslim law a wife can sue for divorce on the ground of husband’s cruelty; cruelty has been defined5.

In a case6, where both the parties were living separately for 14 years and after the Family Court granted divorce,
the Supreme Court held that both parties had crossed the point of no return. A workable solution was certainly not
possible. Parties could not at that stage reconcile themselves and live together forgetting their past as a bad dream.
The decree for divorce was, therefore, affirmed by the Supreme Court.

Mens rea is not an essential element for seeking divorce on the ground of cruelty. Hence, relief cannot be denied
on the ground that there has been no deliberate or wilful ill-treatment.

In the instant case, wife a career-oriented lady wanted to pursue her professional career to achieve success and
constantly and continuously avoided staying with husband and prevented him to have matrimonial relations. She
wanted to live an independent life and even lost interest in marriage and did not have faith in Indian culture. She
called parent of the husband as ghosts and went to such extent as to make false allegation that the husband had
married to an American woman. Therefore conduct of wife was held to amount to mental; cruelty.7
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During the pendency of divorce suit, the wife forcefully entered into the house of her husband to ask for
maintenance. This conduct of the wife was held to amount to cruelty more particularly, when she is capable of
maintaining herself and had initiated criminal proceedings against her husband.8

Divorce
The court held that grant of decree for divorce, even before filing of written statement by wife on date fixed for
application for alimony pendente lite is illegal and law does not permit for passing of decree for divorce on
concession except in the manner as provided is section 13B of the Act.1

Hindu Marriage Act, 1955.—Clause (ia) of section 13(1) of the Act provides cruelty as a ground for a decree of
divorce. It lays down that the other party—

has, after the solemnization of the marriage, treated the petitioner with cruelty.

Special Marriage Act, 1954.—Clause relating to cruelty under the Act is identical with the analogous clause of
Hindu Marriage Act, 1955. Clause(d) of section 27 of the Act provides that the respondent—

has, since the solemnization of marriage, treated the petitioner with cruelty.

Parsi Marriage and Divorce Act, 1936.—Under this Act cruelty is a ground of divorce clause (dd) of section 32 of
the Act runs—

that the defendant has since the solemnization of marriage treated the plaintiff with cruelty or has believed in such a way as
to render it in the judgment of the court improper to compel the plaintiff to live with the defendant. There is yet another
clause, i.e., clause (e) of the original Act which is akin to physical cruelty and runs as under.
That the defendant has since the marriage caused grievous hurt to the Plaintiff… or where the defendant is the husband,
has compelled the wife to submit herself to prostitution.

The proviso to the section give to the court discretion to pass a decree of dissolution of marriage or judicial
separation.

Indian Divorce Act, 1869.—Before the Indian Divorce (Amendment) Act, 2001 (51 of 2001) cruelty in any form was
not a ground of divorce for the husband. But husband’s cruelty coupled with adultery was a ground of divorce for
the wife. The relevant clauses in section 10 of the Act after 2001 Amending Act runs:

Any marriage solemnized whether before or after the commencement of Indian Divorce (Amendment) Act, 2001,
may on a petition presented to the District Court either by the husband or wife, be dissolved on the ground that
since the solemnization of marriage the respondent—

has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would
be harmful or injurious for the petitioner to live with the respondent.2

Section 22 makes cruelty as a ground of judicial separation.

The Dissolution of Muslim Marriage Act, 1939.—Section 2(viii) of the Act lays down grounds for a decree for
dissolution of marriage. It provides:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage... that the
husband treats her with cruelty, that is to say1,—
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to
physical ill-treatment, or

(b) associates with women of evil repute or lead an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or
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(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

Cruelty as a Changing Concept

Even if one looks cursorily at the above formulations of cruelty, it is evident that cruelty is a changing concept. The
old statutes, particularly under the Parsi Marriage and Divorce Act, 1936 and the Dissolution of Muslim Marriage
Act, 1939, emphasise in the formulation of cruelty on physical cruelty, while the Indian Divorce Act, 1869 reflects
the late 19th century state of English matrimonial law of cruelty. On the other hand, thehindu Marriage Act, 1955
and thespecial Marriage Act, 1954, particularly after the amendment of 1976, and the Parsi Marriage and Divorce
Act, 1936 after the amendment of 1988, portray the modern concept of cruelty which includes both physical and
mental cruelty. Under the modern English law cruelty as such is not a ground of divorce, but it is a fact constituting
irretrievable breakdown of marriage. The clause lays down: “The respondent has behaved in such a way with the
petitioner that the petitioner cannot reasonably be expected to live with him or her”.2

The mental cruelty are to be assessed bearing in mind the social status of the parties, their customs and traditions,
their educational level and their living environments, G.V.N. Kameswara Rao v. G. Jabilli.1

Cruelty as a concept defies definition. It can be judged after taking into account all the facts and circumstances of
the case and cannot be determined by a fixed rigid formula. It means absence of mutual respect and
understanding. It can be violence, some attitude or even mere silence.2

In the case of Devram Bilve v. Indumati,3 the Supreme Court observed that the letters on the basis of which cruelty
was sought to be established had not even referred to by the Division Bench nor did they seem to have been
analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because
they decided the appeal in favour of the respondent on the ground that the parties have lived together at Sagar
Hotel at Indore and that amounted to an act of condonation. The court was of the view that there was some doubt,
on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was
important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to
determine whether the appellant herein had been able to prove that the respondent had committed such acts of
cruelty which would entitle the appellant to get a decree of divorce.

Cruelty
Living with another woman is held to be an act of cruelty for the purpose of judicial separation or dissolution of
marriage but it cannot be stretched to amount to “cruelty” under section 498A.4

Under the Indian Divorce Act, 1869, husband can sue only for judicial separation on the ground of his wife’s
cruelty5. Cruelty as such is also not a ground of divorce for wife but, it is adultery plus cruelty. Wife was granted
divorce because it was impossible for them to live together without mental agony6. However this ground is not
available to husband.7 However in view of section 7 of the Act, cruelty can be given the same meaning as under
English law8. In Annu J. Thomas v. Thomas Koshy9 and Lavina Yorke v. Terence Basil Yorke10, divorce was
granted to wife on the ground of cruelty.

After coming into force of the Indian Divorce (Amendment) Act, 2001, this is no longer the position. Now husband
and wife both have a right to seek divorce on cruelty simpliciter.

One should be conscious in interpreting cruelty (as many other legal concepts and notions) that its connotation has
varied from time to time and from society to society with the change in social and economic conditions and attitudes
and it would continue to do so. “Cruelty” today is not looked upon as an offence and therefore there is no emphasis
on intention to be cruel. As has been seen in Chapter I of this work, before the Divorce Law Reform Act, 1969,
English courts have interpreted cruelty so widely as wherever they found that marriage has broken down
irretrievably, they gave the finding of cruelty. This tendency continues in other jurisdictions also. Indian courts, too,
have given a very wide interpretation to cruelty.
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Today, there is a large volume of case law on cruelty in India and abroad. Since human nature all over the world is
basically the same, foreign precedents may be of help to us. But one single fact, particularly among Hindus, makes
a vast difference between our situation and situation abroad. Here a large number of couples live in a joint families,
and living in joint families has its own challenges and own peculiar problems.

Divorce - Cruelty
In this case, husband could not make out grounds. However, facts showing that parties lived separately for 14 years
making acrimonious allegations against each other and all attempts for reconciliation proved futile so, under this
circumstances, continuance of such marriage would itself amount to cruelty. Thus, Supreme Court granted a decree
of divorce with adequate provision of alimony in exercise of its power under Article 142.1

We are in a transitional stage. Many norms and values of the joint family are not observed, yet they exist and
influence our living. The modern living conditions, industrialization, individual occupations and large emerging
service and professional classes are posing their own problems, particularly in cities and towns. The paucity of
accommodation, living in one or two room tenements and hard economic conditions accentuate the problem, and in
urban areas, both big and small, the couples, particularly the newly weds, are finding it difficult to adjust. On the one
hand there are the old, traditional ideas of family unity, the bond of kinship demanding total allegiance, verging to
totalitarianism and on the other hand there, are the ideas of freedom, liberty and equality which are seeping in
deeper and deeper even in the joint households, with the glare of the prospect that once the joint family bonds are
broken, there is possibility of a richer and more free married life. The fast deteriorating economic conditions, with
the ever rising prices, is creating a mirage of a happy married life away from the suffocating joint family atmosphere.

About fifty years back, it was almost impossible in the Northern Indian cities and towns to see a couple walking
together side by side (walking together hand in hand is still a rare sight). In short, the social and the human tussle is
this: the couples living in the joint family seek freedom from the shackles of kinship bond: the old bonds though are
cracking up, yet are still holding. More often than not, the couple tries to shed their kinship bonds, but more often
than not they do not succeed; the centuries old traditional kinship bonds are hard to shed, tentaclelike they cling to
the soul. This is leading to friction. In this setting, the wife (for whom there is no kinship bond to hold her to her
husband’s family except that she is wedded to a son of the joint family) often finds it difficult to adjust herself, and
differences arise and get accentuated. Some times these become so acute that either wife leaves the household or
is turned out of it.

Ultimately, some such couples enter the court precincts. Most of the cases of divorce or judicial separation that
come before the courts are in this setting.

It is submitted that the social conditions prevailing in India being different, one has to look at cruelty in the Indian
setting, though foreign precedents may be useful but they are not to be followed blindly. In Gopal v. Mithilesh1,
Gopinath, J., observed, “...decisions of English courts have to be understood in the context of the social conditions
in that country and may be useful only for basic principles enunciated and no further. Generalization drawn from the
facts of judicial precedents in different conditions cannot, in our opinion, be applied to matrimonial relations in this
country, where marriages are made not in the form they are made in the West, and social conditions are also widely
different.” The learned judge insists that Hindu marriage is still a sacrament.

In the case of R. Balasubramanian v. Vijayalakshmi Balasubramanian2the appellant under sections 13 (1)(ia) and
(ib) of the Hindu Marriage Act, 1955, charging his wife with cruelty and desertion. He alleged that she behaved
erratically; that she would consume overdoses of sleeping pills; she once threatened suicide; she quarrelled with
him without provocation; she took up a job against his wishes. Very significantly he also alleged that she had
conceived after an adulterous union. He claimed to have been shocked when his wife told him of her third
pregnancy and contended that he had ceased having marital relations with the wife since June 1977. The record
showed that on 6-71979 the couple celebrated their tenth wedding anniversary. The wife left the matrimonial home
on 10-9-1979. She gave birth to a baby girl on 21-3-1980 at her parents’ home. The wife denied all the allegations.
In particular she denied that she and her husband had no martial relations during the period the child was
conceived. She stated that she took up a job to escape the husband’s cruelty and nagging; she left her matrimonial
home to perform a pooja very much with the husband’s consent; she did not take her two older children because
they had to go to school; and most significantly she said that she was prepared to undergo any scientific test to
prove that her third child was born of the appellant. She also accused the appellant of cruel conduct and of having
adulterous relationships with two women. She also contended that imputations against her character were
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Chapter VII FAULT GROUNDS OF DIVORCE

themselves acts of cruelty, entitling her to live separately and claim maintenance. The Family Court granted the
husband a decree of judicial separation, which was set aside by the High Court in appeal. The Supreme Court, on
appeal, held that the allegation that the wife had sexual intercourse with a person other than the husband was a
serious allegation against the wife and showed the cruel conduct of the husband entitling the wife to seek relief
against him under the Act or otherwise.

Cruelty: Definition and Meaning

The English Legislature as well as the courts have not attempted to define cruelty and English as well as Indian
courts have emphasised that in the backdrop of spousal relationship, acts or conduct constituting cruelty are
infinitely variable, and then in the ever changing and variable social context with increasing complexities of modern
life, no attempt at defining cruelty is likely to succeed. The Royal Commission on Marriage and Divorce in its Report
(1956) said, “We consider that it is ...not (proper) to have a detailed definition, but to allow the concept of cruelty to
remain open to such adjustments as it is desirable to make through the media of judicial decisions so as to accord
with the changing social conditions.” This is also the view expressed by the Indian Law Commission, and it is
submitted that this should continue to be the approach to cruelty. Indeed, the concept of cruelty has undergone
changes during the last half a century. The mosaic of married life, the Himachal Pradesh High Court observed, is of
myriad patterns. Acts of cruelty are behavioural manifestations stimulated by different factors in the life of spouses
and their surroundings, and therefore, each case will have to be determined by its own set of facts. The Court
added, physical cruelty is often easy to comprehend, but difficulty usually arises in considering what amounts to
mental cruelty; perhaps, mental cruelty is lack of such conjugal kindness which inflicts pain of such a decree and
duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted1. Acts and
conduct constituting cruelty can be so numerous and varied that it would be well nigh impossible to fit them in any
water-tight compartments. Cruelty may be subtle or brutal, physical or mental. It may be by words, gestures or by
mere silence2.

Before the amendment of 1976, the Hindu Marriage Act, 1955 contained a different formulation of cruelty3. The
formulation of cruelty after the amendment of 1976 has been brought at par with its formulation under the Special
Marriage Act, 1954, which has borrowed from the Matrimonial Causes Act, 1950. The Law Commission had
justified the change by saying “the reasonable apprehension aspect of cruelty was borrowed by us from old English
law, and since in England this notion had undergone a change, there was no reason why we should also not
change it under our law”4. The Law Commission did not give any reason as to why in 1976, English law of 1950
should be accepted, and not of 1969 or 1973? And why in 1955 ancient English law version of cruelty had been
enacted, while it was not done so in 1954 when the Special Marriage Act was enacted and borrowed it from the Act
was enacted of 1950? It also did not explain as to why we should go on borrowing from English law or any other
law?

It is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind
of the petitioner that it would be harmful for the petitioner to live with the other party. English Courts in some of the
earlier decisions had attempted to define ‘cruelty’ as an act which involves conduct of such a nature as to have
caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But such a degree
of cruelty is not required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be
an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of
language, occasional outburst of anger may not amount to cruelty, though it may amount to misconduct.1

In a case the allegation was that wife went back to her parental house after solemnization of marriage and did not
return. The wife had left house with permission of petitioner. The parents of wife were said to have misbehaved with
petitioner when he went to take her back. The father of petitioner was allegedly beaten up when he tried to bring her
back. However, best evidence to prove said incidents was not produced by petitioner. The court observed that it
can safely be said that the wife had no role to play on both the occasions. She could not be said to have treated
petitioner with cruelty.2

The physical cruelty consists of acts which endanger the physical health of the complainant and includes the
inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which
causes mental or emotional sufferings, Savitri Pandey v. Prem Chandra Pandey.3

The Supreme Court has attempted to throw light on the concept of mental cruelty by observing that mental cruelty is
a state of mind and feeling, therefore, it is a matter of inference. This inference has to be drawn on facts and
circumstances of the case taken cumulatively.4
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The change in the formulation of cruelty under the Hindu Marriage Act not merely brought it at par with the Special
Marriage Act, 1954, but has also simplified it. In Ashwini Kumar Sehgal v. Swatantar Seghal5, the court observed:
“Cruelty in such cases has to be of the type which should satisfy the conscience of the court to believe that the
relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it
has become impossible for them to live together with mental agony, torture or distress.” A Full Bench of the Bombay
High Court in Dr. Keshaorao Krishnaji Londhe v. Nisha Londhe1, has approved this passage. The court observed
that the decisions rendered by the courts and the Supreme Court including that of N.G. Dastane v. S. Dastane are
no longer good law after the amending Act of 1976. It further said that “cruelty as a ground of divorce under section
13(1)(ia) of the Hindu Marriage Act, 1955 is a conduct of such type that the petitioner cannot reasonably be
expected to live with the respondent”. Now the act or omission or conduct which constitutes cruelty need not cause
any sort of apprehension in the mind of the petitioner. Some of the cases decided under the original Act laid
emphasis on the reasonable apprehension aspect of cruelty, without considering the nature of act, omission or
conduct. It is submitted that now act, omission or conduct constituting cruelty would be of significance in
considering that cruelty has resulted from such act, omission, or conduct. Obviously the effect of such acts and
conducts on the health, mental or physical, or otherwise is still important and determining factor.

Under the original Parsi Marriage and Divorce Act, 1936 the emphasis was on physical cruelty. In fact it did not
used the word cruelty; it uses “grievous hurt”. In connection with the remedy of judicial separation, the Act uses the
word “cruelty”, which can be given a modern meaning. It also uses the words “personal violence”, which can be
equated with physical cruelty. It further widens the scope by laying down that judicial separation will be granted if
the respondent has behaved in such a way as to render it, in the judgment of the court, improper to compel him or
her to live with the defendant. This covers all aspects of mental cruelty. The amending Act of 1978 has also
introduced cruelty as an additional ground. On the other hand, under the Dissolution of Muslim Marriage Act, 1935
the formulation of cruelty is so wide that it includes both physical and mental cruelty.

The Supreme Court has further thrown light on the concept of cruelty by observing that the act of cruelty need not
be of such nature as to create a reasonable apprehension that it would be harmful for the petitioner to live with the
other party. It is enough that the act of cruelty committed by the other party should be with an intention of causing
suffering to the petitioner. Further to determine the magnitude of act of cruelty the social status of parties is a
relevant consideration.2 The Supreme Court further3 ventures define this concept by saying that expression cruelty
has been used in relation to human conduct or human behavior. To constitute cruelty the conduct that is
complained against should be grave and weighty for arriving at conclusion that petitioner cannot be reasonably
expected to live with the other. In Naveen Kohli v. Neelu Kohli,4Supreme Court has observed that conduct
complained should be grave and weighty. It should be such that no reasonable person should tolerate it. It should
not be ordinary wear and tear of marriage. In the instant case, the husband had floated three companies. The wife
published news items against the article of Association of companies and to affect the status of husband as an
established businessman. She opened accounts by forging the husband’s signatures. She filed several criminal and
civil actions against him. Her all actions indicated that she wanted to make his life a miserable hell. Under the
circumstances it was held that was wrecked beyond salvage.

Cruelty can exist even in the absence of specific acts. The test is whether cumulative effect of acts and omissions
on the part of the spouses created a sense of humiliation, insecurity and harassment in the other spouse.1

Thus, it is submitted under all the Indian matrimonial statutes, cruelty can be given the same meaning it is possible
to give cruelty a modern interpretation. Cruelty will include both physical and mental cruelty. It is in this background
that the concept of cruelty should be looked at. The 1897 formulation of cruelty by the House of Lord in Russell v.
Russell2 is still a good starting point in any discussion of cruelty. The formulation of cruelty was made thus:

Cruelty is a conduct of such a character as to have caused danger to life or health, bodily or mental, give rise to reasonable
apprehension of such danger.

This formulation contains the basic element of cruelty and includes both mental and physical cruelty, though it
embodies the typical nineteenth century emphasis upon the necessity of protecting the petitioner and the belief that
no conduct can amount to cruelty in law unless it has the effect to producing actual or apprehended injury to
petitioner’s physical or mental health. It also emphasises that injury need not be actually suffered; a reasonable
apprehension of injury is enough. But where there is no probability of injury, offence is not committed. The difficulty
of applying this test arises on account of the fact that respondent’s conduct may not cause any injury to a normal
person, but it may cause injury to a hypersensitive petitioner. In Jamieson v. Jamieson3, Lord Normand observed:
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The conduct alleged must be judged upto a point by reference to the victim’s capacity for endurance, insofar as that
capacity is or ought to be known to the other spouse...That leaves it open to find, after evidence, that the petitioner was the
victim of his or her own abnormal hypersensitiveness and not of cruelty inflicted by the respondent.

In the modern law, test seems to be that if the conduct or act causes an injury or a reasonable apprehension
thereof to the petitioner, it will amount to cruelty, in Gollins v. Gollins4 Lord Pierce observed:

It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal
standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think cruelty if a reasonable person,
after taking due account of the temperament and all the other particular circumstances, would consider that the conduct
complained of is such that this spouse should not be called to endure it.

In Masarati v. Masarati1, Sachs, L.J., observed: “Today, we are perhaps faced with a new situation as regards the
weight to be attached to one particular factor—that is, the breakdown of marriage”. The learned Judge added that if
it was evident that the marriage had broken down, no public interest would be served by keeping the couple
together.

The court in the case of A. Jayachandra v. Anil Kaur,2held that the expression “cruelty” has not been defined in the
Hindu Marriage Act, 1955. The said expression has been used in relation to human conduct or human behaviour. It
is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of
one, which is adversely affecting the other. It may be defined as wilful and unjustifiable conduct of such character
as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a
danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular
society to which the parties belong, their social values, status, environment in which they live.

Cruelty has not been defined under the Act 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.3

Before proceeding with a detailed discussion of all the aspects of cruelty, the following preliminary matters should
be clearly understood:—
(a) Whether intention to be cruel is an essential element of cruelty;
(b) Whether acts or conduct constituting cruelty is aimed at the petitioner;
(c) Whether the acts or conduct constituting cruelty emanates from the respondent.

Intention to be cruel.—At one time when English law was wedded to the notion that the objective of good law of
divorce was to punish the guilty party, it took the view that intention was an essential element of cruelty. Under the
Matrimonial Causes Act, 1937, cruelty was made a ground of divorce. Thereafter the English courts took the view
that conduct could be cruelty only if the respondent intended to hurt or cause injury to the petitioner or if his acts
were aimed at the other. If the conduct of the respondent was not the result of any intention to harm or injure but of
pure selfishness or indifference, he could not be said to be guilty of cruelty. This resulted in injustice, and the courts
were driven back to the presumption that a person might be taken to intend the natural and probable consequences
of his acts, and tried to mitigate the harshness of the rule. Gradually, the English courts started receding from this
doctrinaire position and in 1952, in Jamieson v. Jamieson1, the House of Lords observed that an actual intention to
injure was not an essential element and unintentional acts might amount to cruelty. Finally in 1963, in Williams v.
Williams2 and Gollins v. Gollins3, where the House of Lords have discussed the entire case law on cruelty, the
intention as an element of cruelty was rejected. In the former case the husband made persistent accusation of
adultery against the wife but he was found insane. Observing that the main concern of the court was to give
protection to the suffering spouse, Lord Pierce said:
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The argument for holding that a man should not be held to have treated his wife with cruelty if he did not know what he was
doing has an attractive simplicity. But so to hold would create a dividing line which in practice is not easy to draw (even with
medical help), which will at times make the court powerless to help when help is most needed and which will cause more
hardship than it alleviates.

In Gollins v. Gollins3, the husband was incorrigibly and inexcusably lazy and just “hung up his hat in the hall”. He
was heavily in debt and his wife had to face his creditors and the bailiff. At no time did he do any physical harm to
her but the strain of his debts finally began to tell upon her health. Rejecting the test that cruelty necessarily
connotes an intention on defendant’s part to be cruel, the court held that, if his conduct could fairly be called cruel, it
did not matter whether it sprang from a desire to hurt or from selfishness or sheer indifference. What is important is
the conduct of the respondent and not the state of his mind.

Motive, malignity or malevolent intention has never been considered as an ingredient of cruelty. As early as 1810, in
Holden v. Holden4, the court observed:

It is not necessary in determining this point to inquire from what motive such treatment proceeds. It may be from turbulent
passions, or sometimes from causes which are not inconsistent with affection, and, are indeed often consistent with it, as
the passion of jealousy. If bitter waters are flowing, it is not necessary to inquire from what source they spring.

There is hardly any Indian case under the Indian Divorce Act, 1869 or the Parsi Marriage and Divorce Act, 1936 on
this aspect of the matter. But in two cases under the Hindu Marriage Act, 1955, the courts have held that intention is
not an essential ingredient of cruelty. InP.L. Sayal v. Sarla Rani1 parties were married in 1948 and had two children
of marriage, but it was not a happy marriage. The wife was crazy to get the love and affection of her husband, and
with that in view, she consulted a fakir who gave her some love-lotion to be administered to the husband. She
administered the same to the husband which resulted in his getting seriously ill. He became ill with slow fever,
giddiness and ultimately got a nervous break-down with vomiting, loss of weight, abdominal burning, back-ache and
various other complications. The husband had to be admitted to the hospital where he remained for some time.
During the entire period of husband’s illness the wife was in attendance on him, day and night, like a dutiful Hindu
wife. She was repentant of her conduct and her eyes were constantly wet with tears. On discharge from the hospital
the husband petitioned for judicial separation on the ground of wife’s cruelty (then cruelty was not a ground for
divorce under Hindu law). The court granted the decree. Shamsher Bahadur, J., observed that considering the state
of mind, the status of parties, and the prevailing notion of the strata of society to which the parties belonged, the
conclusion appear to be irresistible that a state of tension existed between the spouses, at any rate, the husband
was afraid of living with his wife lest such a thing might happen again. The learned judge, after reviewing some
leading English cases, said that intention to injure was not an essential element of cruelty, if act or conduct caused
injury or a reasonable apprehension thereof, it was enough to constitute cruelty. The same view was held by the
Bombay High Court in Trimbak Narayan Bhagwat v. Kumudevi Trimbak Bhagwat2, where the husband, who was
insane, tried to strangulate wife’s brother on one occasion and her son on another. Naik, J., granting wife’s petition
for judicial separation, observed:

The conduct of the husband in this case is such as to amount to cruelty, even in the absence of an intention to be cruel,
Insanity, therefore, should not bar relief claimed by the wife...The shezophrenia from which the husband has a predilection
to suffer periodically is no good defence to the plea of cruelty put forward on behalf of the wife2.

The Supreme Court has also observed that in cruelty mens rea is not important.3Mental cruelty also need not be
intentional.4

Although intention is not an essential ingredient of cruelty, yet an act or conduct which has an intention to injure will
certainly constitute cruelty. There cannot be a graver matrimonial offence than to set out on a course of conduct
with the deliberate intention of wounding or humiliating the other spouse and making his or her life miserable and
then to continue in that course of conduct with the knowledge that it is seriously affecting his or her physical or
mental health. The conduct which is intended to hurt strikes with a sharper edge than a conduct in consequence of
mere obtuseness or indifference1. But in those cases where respondent’s act or conduct could amount to cruelty
only if he intended to injure the petitioner, then there cannot be cruelty if he is incapable of forming an intention. On
the other hand, in these cases where acts and conduct amounts to cruelty in any event, it is immaterial that the
respondent did not intend to be cruel.

Cruelty aimed at petitioner or any other person.—When cruelty came to be recognized as a ground of divorce,
the courts took the view that cruelty should be aimed at the petitioner. The English court took the view that if an act
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was directly aimed at the petitioner, even in the absence of desire to injure or to inflict misery, it would amount to
cruelty. In this view, display of temper, emotion or perversion toward the petitioner could be shown to have caused
injury or a reasonable apprehension thereof to health, limb or life. On the other hand, when an act or conduct was
not directly aimed at the petitioner, such as drunkenness, gambling, sexual offences against third persons and like,
then these acts did not amount to cruelty as they were not directly aimed at the petitioner2. However, sexual
offences directly relevant to husband’s conjugal obligations would amount to ill-treatment of the wife, i.e., cruelty. In
Ivens v. Ivens3, a criminal and indecent assault by the husband on his step-daughter was held to be aimed at wife,
even though there might not have been any intention to hurt or injure the wife.

It may be recalled that section 34 of the Parsi Marriage and Divorce Act, 1936 specifically lays down “the defendant
has been guilty of such cruelty to him or her or their children...” But in other statutes the words used are such as to
lead one to infer that cruelty should be aimed at the petitioner. Thus, both the Hindu Marriage Act, 1955 and
thespecial Marriage Act, 1954 use the words, “treated the petitioner with cruelty”. Section 32(e) of the Parsi
Marriage and Divorce Act, use the words “caused grievous hurt to the plaintiff”. Sections 22 and 10 of the Indian
Divorce Act, 1869 do not lay down specifically that cruelty has to be towards petitioner. Section 2(viii) of the
Dissolution of Muslim Marriages Act, 1939 also uses the language which denotes that cruelty should be towards the
petitioner. It is submitted that whatever be the ambiguity of language, in the modern matrimonial law even if cruelty
is aimed at some near and dear one (though not directly at petitioner) it would amount to cruelty entitling the
petitioner to a decree of divorce or judicial separation, as the case may be. In Trimbak Narayan Bhagwat v.
Kumudevi Trimbak Bhagwat4, this question came before the Bombay High Court. In this case on account of loss in
business and consequent unemployment, the husband lost his mental balance and had to be sent to mental home.
On his release from there, though he still had not regained his balance completely, he came to live in the
matrimonial home. One day, after his return to the matrimonial home, he and his brother-in-law (wife’s brother) were
sleeping in one room, (the wife with her two children in another room and husband’s parents in the third room), the
brother-in-law cried out in the middle of the night that he was being strangulated. The husband was found to be
doing so. Next morning the husband was taking tea and one of the children of the marriage was sitting on the lap of
his mother. Suddenly, the husband pounced on him and started strangulating the child. Thereafter the wife sued the
husband for judicial separation on the ground of cruelty of the husband (at that time cruelty under Hindu law was
not a ground of divorce). The main argument from the side of the husband was that the cruelty was not aimed at the
wife. Naik, J., rejecting the argument observed that it was in physical cruelty that the question of aiming the act of
cruelty at the petitioner arose. In mental cruelty that was not important. If the act or conduct caused mental cruelty,
it was enough whether it was directly aimed at the petitioner or whether it was aimed at some near and dear one of
the petitioner.

Whether act of conduct must emanate from the respondent.—The English courts take the view that act or
conduct aimed at the respondent must be that of the respondent or at his instance. In India most couples live in joint
families, and many a time wives are subjected to cruel acts of the in-laws in which husband may play no significant
part. In Shyamsundar Panda v. Shantamani Debi1, the wife was, soon after the marriage, locked up, kept without
food, ill-treated by her inlaws, while the husband stood there idly taking no part in it but also not doing anything to
protect his wife. The court took the view that intentional omission to protect his wife from the ill-treatment of the
members of the joint family amounted to cruelty on the part of the husband. Relying on Hindu husband’s duty as
pati (protector) to protect his wife, the court said that husband’s failure to protect his wife from the acts and conduct
of cruelty of others, amount to cruelty on his part2.

In Gopal v. Mithilesh3, the Allahabad High Court has taken a different view. In this case a medical graduate got
married in an orthodox family with the specific stipulation that she would neither take a job nor take to medical
profession. It seems the wife adjusted herself in the orthodoxy of her husband’s family, but when on the death of
her father-in-law, the mother-in-law came to live in the matrimonial home, the wife failed to cope with the rigidity of
the orthodox ways of her life, and thereafter began the nagging of the wife by the mother-in-law, who consistently
criticized her style of life and called her names. What hurt her even more was the indifferent attitude of her husband
who remained totally indifferent in his mother’s treatment of the wife, he witnessed it as a helpless spectator who
did not try to intervene and did not protect her, thus failing in his duty of pati, protector of his wife. The lower court
held that the husband was guilty of cruelty. It observed, “this treatment given to the petitioner was cruel because the
mother of the respondent was always nagging at the petitioner, criticizing her in everything and using abusive
language while the respondent himself was indifferent to what was happening and refused to intervene”. But the
Allahabad High Court did not agree. Gopinath, J., who rendered the judgment, observed “the institution of
matrimony under Hindu law is a sacrament, and not a mere socio-legal contract. It is not performed for mere
emotional gratification and is not a mere betrothal. Its content are religious. It is regarded as part of the life or soul.”
Lamenting that the wife appeared to be accidental, while the husband appeared to oriental in views, the learned
judge observed that the husband did not intervene in the nagging and cruel acts of his mother bearing in mind his
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family traditions and his duties towards his mother. The learned judge added that the husband did not probably
intervene as he thought that the differences between the mother-in-law and the daughter-in-law, a feature common
in Hindu domestic life, should in due course of time get patched up. In the backdrop of these views, it was inevitable
for the judge to hold that the husband was not guilty of cruelty. In his words:

The respondent (wife) wanted a relief against the mother-in-law and not against the husband. Divorce is granted for the
protection of an injured spouse from injury apprehended from a misconduct and not for the punishment of a spouse.

It is submitted that deeply drawn as the learned judge was in orthodox tradition and social and family values, the
high ideals of Hindu marriage, duty toward mother, and our peculiar joint family situations, he overlooked one basic
fact of tribulations of living in a joint family, where husband’s failure to protect his wife from the act of cruelty of the
members of the joint family often leads to gruesome tragedies, where wives are driven to commit suicide or become
mentally sick. Aware of these facts, the Hindu law-givers imposed a special duty for the husband to protect his wife
against outsiders and insiders. That is why they called the husband “pati”—the protector. Unfortunately, the learned
judge who dwelt so elaborately on Hindu traditions and values, missed this aspect of the matter. It is submitted that
Mithilesh’s case has been wrongly decided.

Savitri Balchandani v. Mulchand Balchandani1 is an interesting case. It relates to cruelty committed by a child on his
parent. Whenever the father would refuse to do anything at the behest of the mother, the son, acting in consort with
the mother, would grab the testicles of the father and squeeze them. It would obviously be an act of extreme
physical violence and cruelty to any man to be grabbed and squeezed by his testicles; such act causes extreme
physical agony and pain. In this case holding the act of the son as cruelty to the husband, thec Court observed that
when one of the children so identifies himself with one of the parents, and that parent collaborates with the child to
perpetrate cruelty, the cruel conduct of the child would amount to cruelty on the part of the respondent. However,
the Court added a word of caution by saying that normally the cruelty by any of the children of the marriage would
not be relevant.

But, where cruelty was perpetrated by the parents of wife and not by her, divorce was refused to be granted.2

Classification of Cruelty
Cruelty is usually classified under the following two heads:—
(i) Physical cruelty, and
(ii) Mental cruelty.

Physical Cruelty
Acts of physical violence.—Acts of physical violence of one spouse against the other causing injury to body, limb
or health have been traditionally considered to amount to cruelty. What acts of physical violence would amount to
physical cruelty would differ from case to case depending upon susceptibility and sensitivity of the parties. In
Kaushalya W/o Wisakhi Ram v. Wisakhi Ram Mohan Lal1, the husband had been ill-treating the wife and beating
her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Punjab and
Haryana High Court observed that according to the standards of all civilized world, these acts would constitute
cruelty, even though injuries might not be serious as to require medical treatment. It is a clear case of physical
violence. If a husband constantly abuses and insults the wife and occasionally resort to physical violence against
her, it amounts to cruelty2.

A single act of physical violence may amount to cruelty3. Similarly, series of small acts of violence may cumulatively
amount to cruelty. In physical cruelty, actual danger to life need not be proved4. One or two acts of physical
violence are sufficient to constitute cruelty5.

Savitri Balchandani v. Mulchand Balchandani6 (reviewed earlier) and Ashok Sharma v. Santosh Sharma7 are
peculiar cases of perversion and physical cruelty. In the former case wherever the husband would refuse to do the
bidding of the wife, the son at the instance of the wife would squeeze the testicles of the husband resulting in great
physical pain and agony. In the latter case, the wife used to pull the penis of the husband carelessly and
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contemptuously on “inappropriate impulse” which resulted in “excessive pain” to the husband. In Nirmal v. Satya
Paul8, the husband thrashed his wife because she did not bring the desired dowry. These are obviously cases of
physical cruelty.

Threats with or without violence.—When a spouse threatens or menaces the other with acts of physical violence
it would amount to cruelty, obviously, in such a case there should be an apparent apprehension to physical
violence1. In an earlier 19th century case Oliver v. Oliver2, the English Court observed:
(1) Of words it is sufficient to say that, if they are words of mere present irritation, however reproachful, they
will not enable this court to pronounce a sentence of separation.
(2) Words of menace, importing the actual danger of bodily harm, will justify the interposition of the court; as
the law ought not to wait till the mischief it actually done. But the most innocent and deserving woman will
sue, in vain, for its interference for words of mere insult, however, galling; and still less that interference be
given if the wife has taken upon herself to avenge her own wrongs of that kind and to maintain a contest of
retaliation.

Britt v. Britt3 is an English case of physical cruelty. In this case, the husband who had left his wife in 1950, visited
the matrimonial home two years later and struck the wife a blow on the face which gave her a black eye. Again, in
the same year, he met her in a bus and hit her. It was obviously a case of physical cruelty. A single act of cruelty of
an inflamed nature and sufficiently gross to excite terror is sufficient to constitute cruelty.

Violent outburst of temper and verbal abuse even though not accompanied by acts of physical violence would
amount to cruelty, if these acts impaired the health of the petitioner.

Forcing wife to consume Harpic, a toilet cleaner, would raise reasonable apprehension in the mind of wife of danger
to her life.4

Mens Rea not necessary for Cruelty

The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act
complained of could otherwise be regarded as cruelty. Mens rea is not a necessary element in cruelty. The relief of
the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.5

Physical cruelty under Parsi law and Muslim law.—”Causing of grievous hurt” under the Parsi Marriage and
“and Divorce Act, 1936 habitual assaults” under the Dissolution of Muslim Marriages Act, 1939 are grounds of
divorce. In Patnek v. Patnek6, the Bombay High Court held that unless an act amounts to grievous hurt, it would not
be ground of divorce. In Mohd. Sharif v. Nasrine7, the Rajasthan High Court has held that cruelty should be such as
to give rise to a reasonable apprehension that it would cause danger to life, limb or health. It is submitted that this is
not so under Muslim law. It is not so even under Hindu Law though originally Hindu Marriage Act used these words
of course, the court rightly said that allegation should not be of general nature. These should be specific. Section
2(4) of the Parsi Marriage and Divorce Act, 1936 defines grievous hurt as under:
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the power of any member or joint;
(f) permanent disfiguration of the head or face;
(g) any hurt which endangers life.

The last six clauses are reproduction of the first six cases of hurt laid down in section 320 of the Indian Penal Code,
1860 which defines grievous hurt. The seventh clause is partial reproduction of eighth case of grievous hurt.

“Assault” is defined in section 351 of the Indian Penal Code. The section runs:

Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will
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cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that
person, is said to commit an assault.
Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or
preparation such a meaning as may make those gestures or preparations amount to an assault.

The there Illustrations appended to the section run as under:

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is
about to strike Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby
cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z.
(c) A takes up a stick, saying to Z, “I will give you a beating.” Here, though the words used by A could in no
case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances,
might not amount to an assault, the gesture explained by the words may amount to an assault.

Under Muslim law “assault” simpliciter is not a ground for divorce. It must be habitual assault, which in the context,
would mean repeated acts of assault. Beating of wife or constant threats to beat her would amount to cruelty1. In
Hamid Hussain v. Kubra Begum2 and Asma Bibi v. Zainudin3, it was held that mere chastisement of the wife on one
or two occasions would not amount to assault. In Tanni v. Kalloo1, it was held that if it was shown that the husband
gave beating to the wife at regular intervals extending over a considerable period, it would amount to habitual
assault. Similarly, where within the first twenty days of the marriage when wife was living in the matrimonial home,
she was assaulted by the husband, ill-treated and bolted inside a room, it would amount to habitual assault2. It may
be that no single act of assault may amount of cruelty, because of its mildness but if these acts are continued for a
certain duration their accumulated effect would amount to cruelty.

Mental Cruelty
Matrimonial violence and wife battering continues all over the world. In matrimonial life, acts and conduct amounting
to mental cruelty abound. Sometimes acts of mental cruelty have more devasting effect on health than the acts of
physical violence. Mental cruelty takes various forms and shapes. Here we would discuss some illustrative cases.

Mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it
severs the bond between the wife and the husband and as a result of which it becomes impossible for the party
who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to
live with the other party. The respondent after having admitted, the removal of mangalsutra stated that while in
privacy the husband often used to ask her to remove the chain and bangles. She has also stated that in her
parents’ house when her aunt and mother used to go to the bathroom they used to take out mangalsutra from their
neck and therefore she thought that she was not doing anything wrong in removing the mangalsutra when she was
asked to do so by her husband. She also stated that whenever she removed her mangalsutra, she never thought of
bringing an end to the married life and was still wearing her mangalsutra; and it is when her husband made a hue
and cry of such removal of mangalsutra, she profusely apologised. From all these evidences the High Court
concluded that the incident was blown out of proportion and the appellant attempted to take advantage of the
incident by picturising the same as an act of cruelty on the part of the wife. The question, therefore, arises whether
the removal of the mangalsutra by the wife at the instance of her husband would amount to mental cruelty within the
meaning of section 13(l)(ia) of the Act. It is no doubt true that mangalsutra around the neck of a wife is a sacred
thing for a Hindu wife as it symbolises continuance of married life. A Hindu wife removes her mangalsutra only after
the death of her husband. But here we are not concerned with a case where a wife after tearing her mangalsutra
threw it at her husband and walked out of her husband’s house. Here is a case where a wife while in privacy,
occasionally has been removing her mangalsutra and bangles on the asking of her husband with a view to please
him. If the removal of mangalsutra was something wrong amounting to mental cruelty, it was the husband who
instigated his wife to commit that wrong and thus was an abettor. Under such circumstances the appellant cannot
be allowed to take advantage of a wrong done by his wife of which he himself was responsible. In such a case the
appellant cannot be allowed to complain that his wife is guilty of committing an act of mental cruelty upon him, and
further by such an act, has suffered mental pain and agony as a result of which married life has broken down, and
he is not expected to live with his wife. Whenever the appellant asked his wife for removal of her mangalsutra, the
respondent never comprehended that her husband at any point of time would react to such occurrences in the way
he did. Under such circumstances, the appellant was not expected to have made an issue out of it. Thus, removal
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of mangalsutra by the respondent would not constitute mental cruelty within the meaning of section 13(l)(ia) of the
Act.1

In a case, the wife falsely alleged her husband of having illicit relationship and extra-marital affair. It was held that it
constitutes mental cruelty of such nature that husband cannot be reasonably asked to live with wife. The husband
was entitled to decree of divorce.2

In another case3, the appeal filed by the wife arose out of impugned judgment of the High Court passed in
matrimonial proceedings for divorce instituted by the husband on the ground of alleged mental illness of the wife.
The High Court directed that the wife shall give her chief-examination on affidavit and shall appear before the trial
court and be cross-examined, preferably in camera. After her statement is recorded, she shall be referred for
medical examination by the experts. The Supreme Court held that in law the wife had an option to decide in what
manner she would oppose the ground of mental illness alleged against her. The High Court erred in directing that
she would first give evidence on affidavit as her examination-in-chief and thereafter appear for cross-examination.
The proper course which ought to have been adopted by the High Court was to allow her undergo medical
examination, if she so desired, and thereafter give her oral evidence, if she so liked to do. The rigid procedure for
recording evidence as directed by the High Court was unwarranted in law and particularly in matrimonial
proceedings of the nature where the wife has to face charge of her mental unfitness. Hence the court set aside the
impugned part of the direction contained in the order of the High Court, and directed that the matrimonial court
should allow the wife to produce her medical evidence and thereafter she will have an option to give her oral
evidence and it was open to the wife to file a proper application before the Family Court with a request to reopen
her case for enabling her to lead her evidence.

In yet another case, right from the day one after marriage, the wife was not prepared to co-operate with her
husband in having sexual intercourse. When the husband offered to have the wife treated medically, she refused.
As the condition of her health deteriorated, she became irritating and unreasonable in her behaviour towards the
husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his
shirt collar in presence of elderly persons. All attempts made by husband to persuade his wife and her parents to
agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life
proved futile. Within few months of the marriage the wife started to stay away from the matrimonial home and the
husband was deprived of her company. The court held that in such circumstances, the husband who was enjoying
normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that
every married person expects to enjoy and also social embarrassment due to the behaviour of the wife. Further, the
conduct of the wife in approaching the police complaining against her husband and his parents and in not accepting
the advice of the superior judicial officer and taking a false plea in the case that she had conceived but
unfortunately there was miscarriage are bound to cause a sense of mental depression in the husband. The
cumulative effect of all these on the mind of the husband, amounts to mental cruelty caused due to the stubborn
attitude and inexplicably unreasonable conduct of the wife. The husband was therefore entitled to divorce.1

Intention is not required to prove mental cruelty. The act of deprivation of conjugal right on part of a wife towards
her husband is the worst form of cruelty a wife can inflict upon her husband because for a man of integrity and
character, there is no way of satisfying his sexual urge other than in the company of his wife.2

Unusually callous, neglectful and deliberately harassful conduct.— N. Sreepadachar v. Vasantha Bai3, N.G.
Dastane v. S. Dastane4 and Harbhajan Singh v. Amarjeet5 are high-water mark cases illustrating as to how far wife
can go to cause mental agony and torture to the husband and harass him gruesomely. In the first case the court
found that the wife quarrelled with, and hurled viliest abuses, at her husband over trivial matters, on account of
which husband had to spend many sleepless nights. She abused him in the foulest possible language and insulted
and humiliated him. She subjected him to humiliation and shame before the public, made him a laughing stock in
the locality, and made him feel very miserable. On one occasion she abused, insulted and humiliated the husband
in a public bus and caught hold of him by his collar. On another occasion, she made him to cook food for her, and
when he served food to her, she threw plates on his head saying that the food was very badly cooked, and she
insisted that he must apologize to her. Once, when he was going to his office with his colleagues, she caught hold
of him by neck and insulted him. She used to say that she wanted her husband to be killed in some accident, so
that she could have his provident fund and insurance money. In the second case the wife took delight in causing
misery of her husband and his relatives, she willingly suffered the calculated insults which her relatives hurled at her
husband and his parents. She not merely abused her husband and her father-in-law but made false accusation.
She would hurl at her husband abuses like these, “the pleader’s sand of that old hag of your father be forfeited,” “I
want to see the ruination of the whole Dastane dynasty,” “burn the books written by your father and smear the
ashes on your forehead,” “you are not a man you are a monster in human body.” “I will make you lose your job and
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get it published in the newspapers” and like. Once she tore her mangalsutra. She would lock-out the husband when
he would return from his office in the evening. She used to thrash her child mercilessly, even when the child was in
high fever, and she rubbed chilly powder on tongue of the child. During the night she will switch on the lights on her
husband and sit by his side and nag him. In the third case the wife not merely refused to do household work, but, in
presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the
husband. This Vansthali educated graduate wife did not stop there. Her pranks to torture her husband were
boundless. She used to keep her husband waiting outside the house for half an hour or more on his return from the
office. She would abuse him in most filthy language and would constantly threaten him that she would commit
suicide and would implicate him and his other relations in criminal cases. She went to the extent of levelling false
charges of embezzlement against her husband to the bank authorities, where he was employed. It was a different
matter that the Bank authorities did not take any action on her compliant. But she did what she could to endanger
the employment of her husband. What may appear to be trifling if looked in isolation, would amount to terrific if all
trifling acts are pooled together. In Shanti Devi v. Raghav Prakash1, the wife who had alleged that her husband was
impotent, one day put on fire the doctoral thesis of her husband which was yet to be submitted. The husband was a
college lecturer. Apart from the false accusation of impotency, this single act would amount to cruelty.

In Praveen Mehta v. Inderjeet Mehta2 wife’s non-co-operation about sex, refusing of medical treatment, depriving
husband of normal cohabitation, false plea of conception and miscarriage would draw an inference of mental
cruelty.

Wilful, unjustifiable inference by one spouse in the sphere of life of the other is one specie of cruelty, in the same
manner in which rough, domineering or unnatural sexual practice or disgusting accusations of unchastity or adultery
are another specie of cruelty3.

In case where husband was suffering from paranoid schizophrenia and was not able to consummate marriage is
enough evidence of mental cruelty.4

It would amount to cruelty where a husband constantly criticised his young wife over petty and trifling things
behaving boorishly, always disapproving whatever wife did and losing temper and showing menacing attitude1.

In a case, the wife in a letter to her uncle, written after institution of the divorce proceedings, expressed a feeling of
having made her husband miserable and implored the uncle to visit her to settle the dispute with the husband. In
another letter written to her husband, she lamented the separation and blamed herself for the unhappiness in the
family. It was held by the Supreme Court that the High Court rightly took the view that the said two letters could not
be held to corroborate the husband’s allegation of cruelty by denial of sexual relationship.2

obstructing the vocation of spouse.—In U. Sree v. U. Srinivas3, husband was pursuing a career in music. The
wife disliked the same. Her abhorrence to his practice sessions was to the extent that she was totally indifferent
towards it and the relationship between teacher and disciple tradition. She did not care about his public image and
maligned his reputation. This was held to constitute mental cruelty.

False accusation of adultery or unchastity.—There is a long line of decisions in India as well as abroad which
hold that false accusation of adultery or unchastity by one spouse against the other amount to mental cruelty. In
Kusumlata v. Kampta Prasad4, false accusation of adultery were made orally in lawyer’s notice and pleadings. In
Saptmi v. Jagdish5, the husband constantly called his wife a prostitute, a woman of street. In both cases, it was held
that husband was guilty of cruelty. In Mukesh Kumar Gupta v. Kamini Gupta6, wife constantly accused that her
husband was a womanizer and a drunkard. It was held to amount to mental cruelty7. A false charge of adultery
made in cross-examination or in deposition by the husband would amount to mental cruelty1. But probably not, if
made in defence in the written statement2. In Nemai Kumar Ghosh v. Mita Ghosh3, the Calcutta High Court
observed that any imputation against the character of one spouse made by the other without any foundation, on the
basis of mere suspicion, or malice, would amount to mental cruelty. In this case suspicious wife levelled false
charges of illicit relationship of the husband with his sister-in-law.

The baseless charge of immorality against the wife by the husband should be looked at in the backdrop of social
values and mores, as such charge cause great anguish and pain and mental torture which often give rise to
physical ailments. Such accusations obviously constitute cruelty.

In A. v. B.4, D.C. Gheewala, J., observed that to allege that the wife was unchaste by itself amounted to gravest
mental cruelty. After making wild and reckless allegations in the written statement regarding unchastity of wife and
then trying to resile from the same in oral statement would not change the situation.
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Case of Kamlesh v. Paras Ram5, deviates somewhat from the established law. M.M. Punchhi, J., of the Punjab and
Haryana High Court observed that making of false allegation of adultery was only an instance of “legal cruelty”
recognised by courts. The mere allegation of such fact and proof thereof would not, however, entitle the spouse to
divorce under section 13(ia) of the Hindu Marriage Act, 1955, unless it was further proved that they were of such a
grave character so as to cause danger to life, limb or health or gave rise to reasonable apprehension of such
danger. It is submitted that this extension of mental cruelty is not desirable. When a spouse comes to the court with
a petition for dissolution of marriage on the ground that the other spouse has accused him falsely of adultery and if
that allegation is proved, that should be enough for the court to decree dissolution of marriage. It would be an
uncalled for extension to ask the party to establish that such an allegation had caused danger to life, health or limb
or had caused reasonable apprehension in his or her mind that it would be harmful or injurious to live with the
respondent. It is submitted that this was view expressed in 19th century England when Russell v. Russell had its
sway.

In Kamini Gupta v. Mukesh Kumar Gupta6, the husband filed a petition for divorce on the ground of cruelty as the
wife had made false charges of adultery against him. The wife in her written statement averred that her charges
were not false. In her oral testimony she repeated those charges and also named three girls with whom the
husband was alleged to have had sexual relations but she failed to establish a single case of infidelity. While
granting a decree of dissolution of marriage, Avadh Behari Rohatgi, J., of the Delhi Court observed:

There are no categories of cruel conduct. No compartments. The doctrine of danger of life and limb is no longer in the
ascendant. Mental cruelty is now well recognized as ground for divorce.

The judge added that the courts have also evolved a pragmatic test, namely, whether there is r possibility of the
parties living together in connubial happiness, if not, marriage should be dissolved.

False accusation of adultery: Lianunder Muslim law.—When a husband makes a false charge of adultery,
incest, fornication or whoredom, against his wife and fails to prove it, wife is entitled to divorce under Muslim law.
Under Muslim law, it is a separate ground of divorce and not part of mental cruelty as under other personal laws.
This is called lian. In Islamic law lian is described thus: When a man charges his wife with adultery, on the
application of the wife, he may be called upon either to retract the charge or to confirm it on oath, coupled with an
imprecation in these terms; “The curse of God be upon him if he was liar when he cast at her the charge of
adultery.” The wife then must be called upon either to admit the truth of the imputation or, to deny it on oath coupled
with an imprecation in these terms: “The wrath of God be upon me if he be a true speaker of the charge of adultery
which he has cast upon me.” If the wife takes the oath, the Kazi must believe her, and pronounce a divorce. Under
the pure Muslim law, the husband was given every opportunity to retract the charge, since false accusation of
adultery was a serious offence under Muslim law. Dissolution of marriage by mutual imprecation is mentioned in the
Koran and is supported by a tradition. According to the Koran, “those persons who accuse an honourable woman
but do not bring four witnesses to prove their charge, punish them with eighty lashes and do not accept their
testimony thereafter in any case. They are the evil doers”1. The Koran further lays down:

As for those who accuse their wives but have no witnesses except themselves; let the testimony of one of them be four
testimonies (swearing) by Allah that he is of those who speak the truth;
and yet a fifth, invoking the curse of Allah on him if he is of those who lie;
and it shall avert the punishment from her if she bear witness before Allah four times that the thing he saith is indeed false;
and a fifth (time) that the wrath of Allah be upon her if he speaketh untruth.

Under Islam, adultery has been considered to be a serious offence and punishment for adultery was stoning to
death if wife was mooshin, (a mooshin, according to Islam is a person who is free, sane, adult, Muslim and validly
married and whose marriage has been consummated). It seems that the law of lian was introduced with a view to
mitigating the stringency of law of adultery. Lian is attributed to the following tradition: One Hillal accused his wife of
adultery. He was called upon to produce witnesses or to be prepared to receive the punishment of eighty lashes.
Whereupon Hillal exclaimed, “I am truthful and Allah will save me from being flogged.” Thereupon the Koranic
verses relating to oath and imprecation were revealed, and thus came into existence the law relating to lian. The
object of the law of lian was to prevent both the spouses from receiving the punishment of flogging prescribed by
Islam for slander and adultery. In lian the curse on the man becomes a substitute for the punishment for slander
and wrath of Allah is substituted for the specific punishment for adultery. If the charge is proved wrong, marriage is
dissolved.

Under Muslim law of modern India, the wife is entitled to sue for divorce on the ground of false charge of adultery1.
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Lian is mentioned in the Shariat Act, 1937. It seems that the classical form of lian is no longer in vogue in India. But
if a husband makes a false charge of adultery, the wife can sue for divorce on that basis2. The false charge of
adultery does no ipso facto lead to dissolution of marriage, but is a ground for judicial divorce. Obviously, no decree
dissolving the marriage can be passed if the charge is true3. There is a conflict of opinion whether a husband can
retract the charge of adultery once the suit is filed. One view is that he can do so before the close of evidence4. The
Bombay High Court in an early case took the view that retraction had no place in the procedure of Indian courts5,
but in a later case6, it is said that retraction might be made before the end of trial. In Kalloo v. Imaman7, the
Allahabad High Court held that after the coming into force of the Dissolution of Muslim Marriage Act, 1939,
retraction cannot be made once a suit has been filed. It is submitted that cruelty as a matrimonial offence is
complete once it is made and the guilty party cannot “retract” it. This should also be the view taken under Muslim
law. Now a suit on the basis of lian can be filed under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939
clause (ix) is a residuary clause and lays down “on any other ground recognized as valid for the dissolution of
marriage”8.

False charge of impotency.—If one spouse levels false charges of impotency against the other it amounts to
cruelty9.

Impotency of a spouse may also amount to cruelty. In Rita Nijhawan v. Bal Krishan Nijhawan10, the Delhi High
Court observed, “...the law is well-settled that if either of the parties to marriage being of a healthy physical capacity
refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree. In our
opinion it would not make a difference in law whether denial of intercourse is the result of sexual weakness of the
respondent disabling him from having a sexual union with the appellant or it is because of any wilful refusal by the
respondent...”. In Hanuman v. Chandra Kala1, the proposition was reaffirmed. In this case reliance was placed on
heresy evidence. The court observed that when medical evidence of male impotency was given, it should not only
be shown that he had well-formed genital organ and thus capable of having sexual intercourse, but it should be
shown that he was capable of having erection so as to penetrate the female organ. If that was not done, then a
decree of divorce has to be granted. This view has been confirmed by the Supreme Court2in the case under section
125 of the Code of Criminal Procedure, 19733.

Undue familiarity.—In Lalita Devi v. Radha Mohan4, the husband indulged in a love affair with a woman even
promising her with marriage (there was no evidence of adultery) it was held that it amounted to cruelty. The court
observed that continuous ill-treatment of the wife and indulgence in undue familiarity with another woman amounts
to cruelty. Improper association with a member of opposite sex by a spouse short of adultery amounts to cruelty5.
Leading adulterous life and contracting second marriage is cruelty.6

Deprivation of property.—Under section 2(viii), of the Muslim Dissolution of Marriage Act, 1939 if husband
disposes of his wife’s property, it amounts to cruelty. In Jagdish Mitter v. Juna Saini7, a case under Hindu law,
where the husband took away his wife’s ornaments the court held that it amounted to cruelty. The court observed
that woman’s ornaments have both a sentimental and economic value to her and their deprivation by the husband
would amount to cruelty.

Drunkenness.—It is a well-established rule of English matrimonial law that drunkenness per se does not amount to
cruelty. This has been followed in India. But if drunkenness leads to harassment or mental torture of the other
spouse, it may amount to cruelty. In Rita v. Brij Kishore8 M.L. Jain, J., observed:

No doubt drinking is a constituent of culture all over the world, and is almost a cult in certain societies. Yet, even here as
elsewhere a habit of excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. No
reasonable person marries to bargain to endure habitual drunkenness, a disgusting conduct. And yet it is not an
independent ground of any matrimonial relief in India. But it may constitute treatment with cruelty, if indulged in by a spouse
and continued, in spite of remonstrances, by the other. It may cause great anguish and distress of the wife who never
suspected what she was bargaining for and may sooner or later find living together not only miserable but unbearable. If it
was so, she may leave him and may, apart from cruelty, even complain of constructive desertion.

However, in this case cruelty was not established, though it was proved that the husband was a habitual drunkard
and though there was no reason to disbelieve the wife that his drunkenness was distressing and was no more
endurable, there was no satisfactory evidence that the drunkenness was accompanied by insults, abuses or
violence. In fact no case was pleaded that drunkenness was causing any damage to the health of the wife.

Under modern English law persistent drunken behaviour is now considered a behaviour which the other spouse is
not expected to endure1 so is violent, drunken and alcoholistic behaviour2.
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False Criminal charge.—A false criminal case to harass the husband would be an act of cruelty depending upon
the circumstances of a case. In Shyam Lata v. Suresh Kumar3 on account of constant ill-treatment of the wife by
her husband and in-laws, the wife made a report to the police, upon which the husband and his relatives were
arrested and criminal proceedings under sections 107 and 151 of the Code of Criminal Procedure were filed against
them. Later on, the proceedings were dismissed for want of prosecution. On this basis, the husband sought divorce,
as he averred that such an action of the wife amounted to mental cruelty, M.M. Punchhi, J., did not consider it to
amount to cruelty. The reason seems to be this that the complaint was not false (in fact the husband’s harassment
of wife was proved) but is was dismissed for want of prosecution. The learned judge observed:

Everything what a spouse says against another, if remained unproved, is not always wrong, and, if wrong not always
deliberately false, and if false, not necessarily cruel, and if cruel, not necessarily of such a magnitude so as to come within
the ambit of cruelty on the strength of which, divorce can be granted4.

In Raj Kishore v. Raj Kumari5, the wife filed a false criminal complaint under section 494 of the Indian Penal Code,
1860. The Court holding that this amounts to mental cruelty observed:

Indeed, the conduct of respondent 1 in launching a criminal prosecution against her husband with such allegation would
amount to mental cruelty as well. Admittedly, the appellant is a government servant of the State of Bihar and rule 23 of the
Bihar Government Servants Conduct Rules, 1976, lays down that no government servant having a spouse living can enter
into a marriage with another person. In other words, a government servant would be guilty of misconduct if he marries
another woman during the subsistence of his marriage with one woman and this misconduct may lead to his dismissal from
his service. In view of the said allegation by the wife, the Government might have drawn up a departmental proceeding
against the appellant and in any event, he would have an apprehension of such a proceeding and its possible
consequences. The fact that she wanted to send her husband to prison and to face the possible departmental action
against him are sufficient indications of the fact that she had separated from the appellant on permanent basis and had no
intention to resume cohabitation as no wife, who had even the least desire to return to her husband, could think of taking
such drastic step against her husband. Then, as said above, her conduct also amounted to mental cruelty to the husband.

In Kalpana Srivastava v. Surendra Nath Srivastava1 also, the wife lodged a false complaint against her husband
and in-laws for non-bailable offences leading to their gross harassments as they have to rush to obtain bail2. It was
held to amount to cruelty.

But mala fide intention on the part of other party is must for it to become ground of cruelty.3

Reprehensible conduct.—Mental cruelty is reprehensible act and conduct on the part of the respondent. In K.
Swarna Kumari v. M.B. Chowdhary4, the wife alleged that husband was guilty of sodomy and was treating her
cruelly. Cases of Basantha, Dastane and Amrit Kaur, Krishna v. Alok Ranjan and Kalpana Srivastava v. Surendra5
also show the most reprehensive conduct of the wife. In Krishna v. Alok Ranjan6, it was established that wife’s
frequent departure from the matrimonial home to her father’s house without her husband’s permission and staying
their for a long time caused undue mental hardship to the husband which necessitated medical treatment. It was
also established that the wife was highly impulsive, emotional and suspicious of others. She used to lose her
temper often and misbehave with her husband and in-laws. Once she lodged a false complaint against him to
police, leading to the entry of the police in the matrimonial home. Even after she left matrimonial home for good,
she was offensive to her husband making various false allegations. On these facts the Calcutta High Court found
the wife guilty of cruelty, and dissolved the marriage.

Chittatosh Mookerjee, J., observed that legal cruelty consists of first, illtreatment and secondly, the resultant danger
or apprehension thereto. It is submitted that under the matrimonial law not much emphasis is now laid on the
second element, particularly after the amendments made by the Amending Act of 1976. Conduct need not be
judged with reference to the victim’s capacity or incapacity for endurance. If the act of conduct constitutes cruelty
that should be enough. The resultant danger or apprehension thereof need not be proved.

In Kalpana Srivastava v. Surendra Nath Srivastava1, the wife’s conduct was more or less as reprehensible as in
Krishna’s case. She consistently refused to prepare tea for her husband’s guests. She lodged a false complaint
against her husband and in-laws for non-bailable offences and harassed them and they had to rush to the court to
obtain bail. She got her pregnancy terminated without any valid reason and without husband’s consent. Despite his
best efforts to persuade her give up her hostile and adamant attitude, she did not mend her ways. O.P. Saxena, J.,
rightly observed (the point which was missed by Mookerji, J., in Krishna’s case) that after the 1976 amendment the
only thing that the petitioner is required to establish is that the respondent “has after the solemnization of the
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Chapter VII FAULT GROUNDS OF DIVORCE

marriage treated the petitioner with cruelty”, and he need not prove that it has caused a reasonable apprehension in
his mind that it will be harmful or injurious for him to live with the other party. The judge added, when marriage has
irretrievably broken down on account of persistent acts causing mental cruelty to one party, the marriage has to be
dissolved.

Where wife first agreed on divorce by mutual consent after obtaining lump sum maintenance and later backed out.
In front of passport authorities she claimed to be unmarried. Also filed criminal complaints against husband, held
guilty of cruelty.2

Cruelty and Irretrievable breakdown of Marriage.—Romesh Chander v. Savitri3is an interesting case. The
marriage was dead for all practical purposes, though parties have lived together for 25 years. Husband agreed to
transfer his house. The Supreme Court dissolved the marriage on husband transferring his house to the wife. The
Supreme Court exercised its power under article 142, Constitution of India3.

Asha Handa v. Baldev Raj Handa4, depicts the reprehensible conduct of the husband. The wife who was employed
had alleged that the husband used to take away her entire salary and even denied her bare pocket expenses; when
her child was sick, he did not care to procure medicines; he frequently insulted her and even assaulted her
occasionally and one day he threw a patila on her and hit her on the back. Ultimately, she was compelled to leave
the matrimonial home. The husband in his written statement denied the allegation generally but not specifically. The
court held that in the absence of specific denials, the allegations should be deemed to be admitted and passed a
decree of dissolution of marriage. L.D. Jain, J., who delivered the judgment of the court, quoted the following
passage with approval of Lord Reid in Gollins v. Gollins1:

A judge does, and must, try to read the minds of parties in order to evaluate their conduct. In matrimonial cases we are not
concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and
the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever start with a
presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the
spouses think and behave as reasonable people.

In Chander Prakash v. Sudesh Kumar2, wife left the matrimonial home the next day after she had joined it and went
to live at an unknown place. Sometime thereafter she was found staying with her cousin and during her stay there
she was seen at various public places with different persons. It was held that this amounted to cruelty as it
amounted to great mental and moral torture of the husband. In Serah v. Pyli3, the Kerala High Court observed that
any conduct of one spouse which causes disgrace to the other spouse or subject him to a course of annoyance and
indignity amount to cruelty. The harm apprehended may be mental suffering as distinguished from bodily harm, for
pain of mind may be even severer than bodily pain, and a spouse disposed to evil may create more misery to a
sensitive and affectionate spouse by a course of conduct addressed only to the mind than the fits of anger when he
was to inflict occasional blows upon her person. There cannot be more reprehensive conduct than to keep one’s
concubine in the matrimonial home and have sex with her and promise to marry her, while the wife is living in the
matrimonial home. This amounts to cruelty4.

In Pawan Kumar v. Chanchal Kumari5, divorce was granted to husband where parties were admittedly living
separate for 13 years, even though, the wife could not prove allegations of cruelty against the husband. It was held
that since evidence on record clearly showed that marriage was completely dead for more than a decade, the
husband was entitled to divorce.

In Dr. Naresh Purohit v. Dr. P.K. Shobhana1, both the spouses were doctors. There were constant quarrels
between the two and there were allegations that wife did not care for him when he was sick and that she tried to
commit suicide. On her part she described her abandonment of matrimonial home as escape. It was held that under
the circumstances to ask them to continue in the wedlock would be cruelty, hence divorce was granted. This is
welcome trend in the absence of any specific provision as to irretrievable breakdown of marriage, the provisions of
section 13(1A) being very limited, to free the couple from matrimonial tie where the marriage has become a farce.

The Supreme Court has given its approval to this emerging new trend where a marital tie is allowed to snap where
it is serving no purpose in Durga Prasanna Tripathy v. Arundhati Tripathy.2(A case on desertion) In A. Jayachandra
v. Aneel Kau r3 the court has observed that irretrievable breakdown of marriage is, though not a ground for
dissolution of marriage, but in extreme cases, to do complete justice and shorten agony of parties, a decree to
dissolve the marriage may be passed. In Satish Sitole v. Ganga4 the husband could not make any ground for
divorce. The parties were living separate for 14 years and were levelling acrimonious charges against each other.
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Chapter VII FAULT GROUNDS OF DIVORCE

Reconciliation had also failed. Divorce was granted by fixing adequate alimony for the wife. But irretrievable
breakdown as a ground cannot be added per se as it would mean amending the Act.5

Agony of breakdown of marriage cannot be excluded from realm and category of cruelty. Hence, divorce can be
granted on cruelty.6

Wife refusing to follow husband.—The wife who resigned her job thrice to follow her husband, finally refused to
do so as parties have decided to settle at Bombay. It was held that she was not guilty of cruelty in declining to follow
her husband who was again transferred to another place7.

Refusal to have marital intercourse.—Persistent refusal to have marital intercourse without any cause amounts
to cruelty1. In Avinash Prasad v. Chandra Mohini2, the Allahabad High Court held that when wife voluntarily
deprives the husband of her society and cohabitation for a long period of time, it amounts to mental and moral
cruelty. In Dr. Srikant Rangacharya Adya v. Anuradha3, K.A. Swami, J., observed:

Failure to comply with one of the essential obligations of the marital life by the husband would amount to subjecting the wife
to cruelty. It is one of the essential and principal obligations on the part of the husband to satisfy the sexual urge of his wife
which is natural instinct. Married life without a sexual life will be a curse to the wife. Thus, failure to or inability of or refusal
to effectuate the sexual intercourse by the husband without any reason on the part of the wife, would amount to subjecting
the wife to cruelty.

Divorce on the Ground of Cruelty and Desertion

In this case both parties were divorcees at the time of marriage. After marriage, wife did not allow the husband to
have sexual intercourse. This conduct of wife was held to amount to mental as well as physical cruelty to husband.
Further, the wife stayed in her matrimonial home only for few days and for rest of the time stayed in her parent’s
house. Wife was also guilty of desertion. Therefore, husband is entitled to decree of divorce.4

In English case, B. v. B.5, the wife in her petition for divorce on the ground of husband’s cruelty averred that the
husband had been indifferent to the marital intercourse. He had sex with his wife with long intervals of week and
even months. The wife was 20 years old and the husband was 25 years old. The wife submitted that the indifferent
attitude of the husband towards sex was leaving dexterous effect on her health and on account of it, she had been
suffering from extremely nervous tension. The English court did not consider it to amount to cruelty. Similarly, in P.
v. P.6, English court held that a husband’s abstinence from sexual intercourse on account of his lack of desire for
sex, did not amount to cruelty. It is submitted that as seen above, Indian courts have taken a contrary view.
However, Lord Denning, M.R., in Sheldon v. Sheldon7, took the view that persistent refusal or failure or neglect to
have marital intercourse would amount to cruelty. Interestingly, the husband had marital intercourse with his wife for
the first eight years of the marriage but thereafter he refused to have it for six years it was adversely affecting her
health. Similarly, wife’s refusal to have sex with her husband for one full years amounts to cruelty1. In this case it
was second marriage for both the parties. The wife refused sexual intercourse and averred that she was never
interested in the second marriage. It was held to be an act of cruelty.2

In Nijhawan v. Nijhawan3, the Delhi High Court, after reviewing some English cases observed:

Thus the law is well-settled that if either of the parties to marriage being a healthy physical capacity refused to have sexual
intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any
difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from
having a sexual union with the appellant, or it is because of any wilful refusal by the respondent, this is because in either
case the result is the same namely frustration and misery to the appellant due to denial of normal sexual life and hence
cruelty.

Similarly, in Shakuntala v. Om Prakash4, Leila Seth, J., observed:

A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not
possible due to ill-health on the part of one of spouses, it may or may not amount to cruelty depending upon the
circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it would
amount to mental cruelty, especially when the parties are young and newly married.
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Again in Neelam v. Vinod5, the Court observed:

In the present case, the problem started on the very first night. The appellant declared that she was not interested in life nor
in sexual relationship. One can imagine the shock this must have given to the respondent who must have been full of
anticipation and desire. The next day she left the house and had to be persuaded to return. She refused to go for
honeymoon. She reluctantly agreed after much persuasion to go to matrimonial home a week later. She was depressed
and disinterested at a time when a bride would normally be joyous, happy, anxious to share togetherness.

These cases have been followed in Anil Bhardwaj v. Nirmlesh Bhardwaj6, wherein the court observed that failure or
refusal to effectuate sexual intercourse by a spouse without any reason amounts to cruelty.

Where wife for no reason frequently went to her paternal home and stayed there for long period thereby denying the
husband healthy physical relationship, it would constitute mental cruelty. 1

It should be noticed that courts in India have not emphasised it to be relevant whether on account of denial of sex
by one spouse, the health of the other party is being affected. Even in the pleadings, the petitioner has not been
required to plead that the indifferent attitude toward sex or refusal to have sex is having, as has been pleaded in
most English cases, deleterious effect on his health or that he is suffering from nervous tension. If denial or refusal
to have sex has been established, it has been held to amount to cruelty. Thus the emphasis is on act or conduct. If
act or conduct of certain type have been held to amount cruelty, and that has been considered enough without
considering whether it is actually affecting the health of the petitioner or not. Probably it has been assumed that
certain acts do cause mental tension and torture and hence amount to cruelty.

Refusal to consummate the marriage: Refusal to have marital intercourse without contraceptives2.—Living
beings are instinctively engaged in the process of procreation. In all early civilizations procreation was considered
as a holy act. Hindus over-emphasised the need of begetting a son. The begetting of a son was a holy, spiritual act
as the putra (son) delivered the father from put (hell)3. Sage Baudhyayana declared:

Through a son one conquers the world, through a grandson one obtains immortality, and through a great grandson one
ascends to the highest heaven4.

Although always eulogising the aurasa son5, the craze for having a son “somehow or other” reached such a frenzy
that at one time the Hindus recognized as many as twelve sons, which included the soil-born, seed born and
somebody else’s children taken in gift or by purchase6.

Not merely Hinduism but most other religions of the world consider any interruption with the process of procreation
as a highly irreligious act, almost a sacrilege, a profanation. The Roman Catholic Church still prohibits use of
contraceptives.

The modern man, the homo faber, considers the sexual act not merely as a process of procreation, but also a
source of pleasure, enjoyment, even pass-time and entertainment. In ancient times this led to illicit intercourse and
legalization of illicit intercourse, and therefore, man created institutions of concubinage, prostitution, polygamy and
temporary marriages7. At that time adultery, fornication and incest prevailed in the society. Today’s man is justifying
and proclaiming freedom of sex under the name of permissiveness. Whenever an illicit intercourse or “free
intercourse” is indulged into, it is seldom with the desire of procreation. Rather, both parties are keen to avoid, and
the woman certainly is, since it is she who suffers the consequences of conception, pregnancy and childbirth. Since
then man had been looking for contraceptive, for the nirodh, and has been using several things, certain oils, balms,
herbs and like things which have been considered to be safe contraceptives. The Kamshastra talks of coitus
interuptus as a contraceptive and it is now propagated widely. With man more and more taking to permissible
society the use of contraceptives is becoming part of normal sexual life. The population explosion and consequent
need for birth control has given a great boost to the propaganda for using contraceptives. Not merely this, what was
once considered to be crime and sin in being made legal, that is to say termination of pregnancy has been legalized
in many countries. Science and technology has come to the aid of mankind not merely for having safe “illicit sexual
intercourse but also to the fulfilment of the objective of containing population explosion by perfecting sterilization
surgery”1. India which at present is following the cafeteria approach, to family planning offers several measures for
the birth control. Apart from the usual contraceptives including “the pill,” the two technological and scientific
methods that are offered are sterilization and termination of pregnancy. Under the Medical Termination of
Pregnancy Act, 1971 in certain circumstances a woman can get her pregnancy terminated without the consent of
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her husband2. Consent of the guardian is needed in those cases where the girl is below eighteen years of age or a
lunatic3.

All these methods of family planning or containment of population have their repercussion in the family law. The
spousal right to have children and woman’s right to personal liberty which includes the right to beget and to refuse
to beget children. It is now accepted that the woman’s desire to be relieved of her pregnancy is part of her
fundamental right to life and personal liberty. And, it seems, to have children is also part of the fundamental right to
personal liberty. These arguments obviously have their repercussion on the spousal rights too. But so far, in the
family law area the main argument is: Whether the prevention of child birth, by the use of contraceptives,
sterilization surgery or termination of pregnancy by a spouse without the consent of the other amounts to invasion
of the right of the latter to have a family, and does the consequential mental, physical or psychological strain and
injury to health amount to cruelty so as to entitle the other spouse to seek termination of the marriage.

The question has come up before English courts in some cases. In P. v. P.1, the wife was suffering from oppressive
psychological fear of conception which she found impossible to overcome and, consequently, did not allow her
husband normal sexual intercourse and the opportunity of a becoming a father. The husband suffered great mental
strain causing injury to his health. He sued for divorce on the ground that the conduct of the wife amounted to
cruelty. The Court observed that “the wife was consistently depriving her husband of the amount of intercourse
which she ought to really have been affording and depriving him of the opportunity of becoming a father, which she
knew that he wanted, and that these matters seriously affected his health.” It was of the opinion that such conduct
of the wife became unendurable for the husband in the sense that the “husband should not be called upon to
endure it”. The verdict was given that the wife’s conduct amounted to cruelty. In Bravery v. Bravery2, the wife
petitioned for divorce. The wife alleged that the husband underwent a sterilization surgery without her consent and
despite his knowledge that she had expressed a desire to have more children. The majority found that the husband
did not undergo sterilization without her consent and that she did not suffer in health as a consequence of it.
However, Denning, L.J., in his dissenting judgment, found that he underwent the sterilization operation without her
consent. He went a step further and observed that even assuming that she did consent at the time of surgery, she
was not debarred from complaining of its ill effect in later years when in fact it did injure her health. The learned
judge said:

There was no just cause or excuse for this operation at all. If the husband has undergone it without telling his wife about it
beforehand, no one could doubt that it would be cruelty. It was an act most disruptive of the married state, and she was the
victim of it. It was indeed aimed at her, because it was done so as to prevent her having another child.

Knatt v. Knatt3, was also a case of similar nature. The husband practised coitus interuptus against the wishes of the
wife and would not let her have a child despite her keen desire to have one. This caused great frustration to the
wife, her health deteriorated and she suffered great mental strain. On her petition for divorce, the Court observed
that for a man deliberately and without good reason permanently to deny his wife who has a normally developed
material instinct a fair opportunity of having even a single child is itself cruelty. Thus, the English Court seems to lay
down that permanent and unreasonable starvation of the maternal or paternal instinct by itself amounts to cruelty4.
In Forbes v. Forbes5, the wife would not permit her husband to have sexual intercourse without contraceptives. The
husband very reluctantly agreed to do so. Not finding the husband very co-operative, she, later on, started using
contraceptive herself. The husband was very keen to have children. He made all possible efforts to persuade his
wife to agree to have children, but he failed. Consequently, he filed a petition for divorce on the ground of the wife’s
cruelty. The Court granted divorce to the husband. It is very interesting to note that the Court, in its observations,
tried to blend the religious notions with the natural human desire to have offspring. The learned judge observed that
quite apart from the exhortation in the solemnization of matrimony that the marriage was ordained for the
procreation of children (this is the original idea of marriage not merely in Christianity but in all religions including
Hinduism), the learned judge observed:

It is natural instinct in most married men to propagate the species and to bear the responsibilities and enjoy the comforts of
their own children. If a wife deliberately and consistently refuses to satisfy this natural and legitimate craving, and the
deprivation reduces the husband to despair, and affects his mental health, I entertain no doubt that she is guilty of cruelty.

In Stanly Hedger v. Florence, a case under Divorce Act, the husband was against having a child and the wife was
constrained to take precautions against conception. It was held to be mental cruelty.1

The worst or the best of family planners have so far not come out with suggestions that one should have no
children. The key slogan of Indian family planners has been, “Two or three but no more” or lately, “One for you, one
for me, and no more”. Yet, no one has come out with the slogan, “None for you, none for me, and none for us”.
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Thus, a spouse who refuses to have even a single child is obviously depraved and pervert, unless for health
reasons he or she is not in a position to do so. And in such a case the law has, it is submitted, rightly come up to
the challenge of science and technology by giving a new twist to its fault concept of cruelty. It is submitted that it is
good social engineering through law. However, thereby it is not suggested that it provides a wholesome solution to
the problem. Law has also to look to the problem of a spouse whose desire for progeny is insatiable, who wants to
have, two three and more children. It has been rightly suggested that in these matters regard should be had to the
age, physical and mental health of the wife and the husband, the number of children the couple already had, and
the social, and economic status and background of the parties2. Further more, this has to be looked at in the
perspective of the national policy of family planning. Thus, this is one of those areas where individual interest in the
control of population explosion has to be harmonized with the individual and spousal interest to procreate as he or
she pleases. But, despite the national objective of “two or three”, one cannot insist that one must have at least “two”
and one cannot have more than “three”. The social engineering differs here materially from technological
engineering. The latter must fix correct specifications, otherwise the whole structure would crumble, but if the social
engineer would lay down such rigid specifications, there is more likelihood of the social structure coming down. The
social engineering has to be flexible. Measures like compulsory sterilization are technological engineering, and are
inhuman.

Getting pregnancy terminated without the consent of the husband—In Sushil Kumar Verma v. Usha1, the wife
got her very first pregnancy terminated without the consent of the husband and for no valid reason; she in fact
concealed the fact of termination of her pregnancy from the husband. It was held that she was guilty of cruelty. In
Satya v. Siri Ram2, the wife got terminated her pregnancy twice without any reason and despite the fact that her
husband and the entire family was very keen to have a child. The court held that this amounted to cruelty,
particularly in the context of parties being Hindus. Tiwana, J., said:

Now if the wife deliberately and consistently refuses to satisfy husband’s natural and legitimate craving to have a child, the
deprivation reduces him to despair, and it naturally affects his mental health. This is more so in the case in hand where the
parties to the litigation are Hindus. In this sort of case the court has to attach due weight to the general principle underlying
the Hindu law of marriage and sonship and the importance attached by Hindus to the principle of spiritual benefit, of having
a son who can offer a funeral cake and libation of water to the manes of his ancestors. It would be no answer to say that it
is now open to the respondent to adopt a son.

False complaints to the employer.—In M.K. Malhotra v. Kirti Malhotra3, serious allegations were made by the wife
in representations to the Prime Minister levelling baseless allegations against her husband. She not only did make
this representation to the Prime Minister but also managed to get letters written by a few Members of Parliament.
Letters were also addressed to the Home Minister making baseless allegations against the husband. The Ministry
of Home Affairs, where the husband was employed issued a show cause notice and conducted a regular and
detailed enquiry at the level of Joint Secretary. The Enquiry Officer came to the conclusion that no misconduct
could be attributed to the appellant. A similar enquiry was also conducted by the Office of the Commissioner for
Scheduled Castes and Scheduled Tribes who also arrived at the same conclusion. The respondent made all these
false allegations knowing fully well that the outcome of the enquiry could have resulted in the dismissal of the
appellant from Government service. In M.D. David v. K.G. Merey,4 the Court held that the husband, during the
period of enquiry must be deemed to have suffered mental cruelty and the imputation made during the trial must
have caused him more pain and misery than physical beating and that the husband could not reasonably be
expected to live with the wife4. In Harbhajan Singh v. Amarjeet Kaur5, the wife appeared to be a perverted woman.
She did all imaginable or unimaginable things to harass and torture her husband and went to the extent of lodging
false complaint against her husband to his employer. She made complaints to the Bank authorities where her
husband was employed to the effect that he had committed certain fraud and forgeries in the bank account and that
he had withdrawn certain amounts from her account by forging her signatures. She also alleged that the husband
had misused LTC concession by taking his sister on tour, while he was not allowed to do so as this benefit could be
avail of only for wife and children. The Court observed that such allegations if proved would have resulted in
husband’s dismissal. The Bank ignored these complaints. Holding these allegation as amounting to cruelty as the
court felt that there could not be worst mental torture than this, V.D. Gyan, J., observed:

…certain allegations against the plaintiff in respect of withdrawing the amount by deceiving should not be taken very
seriously. The matrimonial cause is not to be converted into a criminal trial. What was more important is the nature of
complaint made by the defendant wife and the consequences likely to result therefrom. If such a conduct is indulged in and
as in this case it is amply proved to have been indulged in by the defendant wife, then it certainly amounts to cruelty
towards the husband irrespective of the trifling nature of the allegations or the fact that the employer bank has not pursued
the same but it certainly points to cruelty indulged in by the respondent towards her husband.
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In Balesman v. Balesman1 (an English case), the court held that making of a unjustifiable remark to husband’s
superiors which is potentially damaging his career amount to cruelty. But writing letters by the wife to the would-be-
bridegroom of husband’s sister scandalizing her husband family was held not be cruelty2.

Nagging.—In England and the United States there is a long line of cases holding that constant and persistent
nagging by wife amounts to cruelty3. An arrogant wife showing total disregard and lacking consideration for her
husband insulted him, humiliated him and abused and nagged him and member of his family. It was held to amount
to cruelty4. Similarly where wife constantly threatened her husband that she would commit suicide, and constantly
nagged and abused him, it was held that this amounted to cruelty5.

Cases of N.G. Dastane v. S. Dastane,6N. Sreepadachar v. Vasantha Bai7 and Harbhajan Singh v. Amarjeet Kaur8,
which we have reviewed earlier are also cases of nagging.

False, scandalous, malicious, baseless charges.—There is long line of decisions holding that false, scandalous,
malicious, baseless and unproved allegation made by one spouse, whether in letters or written statement or orally
or by any other mode amounts to cruelty1. In Shakuntala Kumari v. Om Prakash Ghai,2 the wife wrote a scandalous
letter to the Secretary, Lok Sabha (where the husband was employed) to malign him. This caused great mental
agony to the husband. In Lajwanti v. Chandok3, wife wrote scandalous letters to the police and sent anonymous
letters to several authorities against her husband. Similarly, in Kiran Kapoor v. Surinder Kumar,4Sharda Nand v.
Kiran5 and Girdharilal v. Santosh,6false complaints to police and other authorities were made by one spouse against
the other. In Jorden v. S.S. Chopra7, the husband wrote letters to the superior officers of the wife who was working
as I.F.S. probationer containing scandalous and damaging allegations against the wife. He tried to malign his wife
to damage her career. In these letters he scandalized the wife by accusing her of adultery and generally
assassinated her character. In all these cases the court held that these false and malicious allegation by one
spouse against the other amounted to cruelty. Case of V. Bhagat v. D. Bhagat8, carries the same theme forward.
Wife in her written statement alleged that a streak of insanity ran in the family of her husband. This was false. The
Supreme Court held that it amounted to cruelty. In Savitri Balchandani v. Mulchand Balchandani9, the court
observed:

…false, defamatory, scandalous, malicious, baseless and unproved allegation made against the spouse in letters and
alleged complaints to superior, or persons in authority are cruelty.

The court held that even if such allegations are made in written statement these would amount to cruelty, as the
court has power to take into consideration subsequent events10. This view has also taken in Parihar (Priti) v. Parihar
(Kailash Singh)11 and Pushpa Rani v. Krishan Lal12, wherein it was held that the scandalous and false matter
contained in written statement as well as in letters written subsequent to the filing the petition could be taken into
consideration. In the former case, the wife-respondent had written such letters to Air Force authorities where the
husband was employed. The court said that the irresponsible insinuations and allegations, which were made during
the course of litigation against the husband and his family could not be brushed aside. In the latter case, such
matters were contained in the written statement, her deposition and cross-examination. In Ashok Sharma v.
Santosh Sharma1, the same view has been expressed. A contrary view has been expressed by Tiwatia, J., of the
Punjab and Haryana High Court in Jarnail Kaur v. Sarwan Singh2. It is submitted that the court should take into
account the scandalous, malicious and false statements made in the written statement as well as subsequent to the
filing of the petition, elsewhere such as in disposition and letters send to others, such as police authorities and
employer of the other party, as this would avoid multiplicity of the proceedings. In Ashok Sharma v. Santosh
Sharma,1 the Delhi High Court observed that the doctrine that false, defamatory, baseless, scandalous and
malicious allegations in written statement could be taken into consideration for the purpose of granting relief in
matrimonial matters was based upon the twin principles that litigation between the parties should be shortened and
complete justice should be done between the parties3.

Indignity, neglect and indifference.—In Gurucharan Singh v. Sukhdev Kaur4, wife left the matrimonial home and
refused to take with her or to bring up a two months old child of the marriage consequence of which the child died.
The court held that neglect and indifference towards the child of the marriage amounted to cruelty towards
husband. In a South African case, Deek v. Deek5, the husband adopted an attitude of persistent silence towards his
wife and deliberately and persistently ignored her existence which made her life miserable and intolerable. It was
held to amount to cruelty. Similarly, in an English case, Jamieson v. Jamieson,6 the husband who gave inadequate
house allowance to his wife was always rude to her often threatened her and humiliated her in the presence of the
children and when she wanted to discuss the matters with him he would slam the door. He even threatened to
commit suicide. It was held that this conduct amounted to cruelty. In Rajinder Singh v. Tarawati7, the husband, an
armyman, was once seriously injured while driving a jeep. The army authorities sent an S.O.S. to her but she did
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not come and pay any visit to her husband for eight months, while the husband was in Army hospital and later on
when he was admitted to a Delhi hospital. It was held this conduct of neglect and indifference on the part of the wife
amounted to cruelty. In a Canadian case, Jone v. Jone8, the husband spent all his earning on his mistress with
whom he lived and thus compelled the wife to take a job for her maintenance. He openly proclaimed his preference
for his mistress. These weighed heavily on the mind of the wife undermining her health. It was a clear case of
callous indifference and neglect of wife. It amounted to cruelty.

Wife’s frequently leaving matrimonial home amount to cruelty1.

Case of N. Sreepadachar v. Vasantha Bai2, N.G. Dastane v. S. Dastane3 and Harbhajan Singh Monga v. Amarjeet
Kaur,4 which have already been reviewed, also fall in this category.

Sex perversion.—Sex perversion has been held to amount to cruelty. Homosexual practice between the wife and
another woman has been held to amount to cruelty5. If a wife is lesbian, it amounts to cruelty6. In Kusum Lata v.
Kampta Prasad7, the Court said that persistence in inordinate sexual demands or sexual malpractices by either
spouse amount to cruelty. Forcing one’s spouse to submit to abnormal and unpleasant sex practices is cruelty8.
Resorting to unnatural carnal relationship would amount to cruelty.9

Communication of disease.—If a husband is suffering from a communicable disease, and he knows he is likely to
communicate it to his wife by sexual intercourse yet he recklessly indulges in sex act with her, it amounts to
cruelty10. When a husband is suffering from a venereal disease and knowingly has intercourse with his wife, even if
she is not infected, it amounts to cruelty11. The charge of communication of the disease should be specifically taken
up in the pleadings and not as a mere general charge of cruelty12. But if disease is not communicable, yet it is foul,
emits such foul smell that cohabitation is not possible, will it amount to cruelty? The question came for consideration
before the Jammu and Kashmir High Court in two cases. In Rup Lal v. Kartaro Devi13, the court said that it would.
But over-ruling this decision in Jia Lal Abrol v. Sarla Devi,14 it is said it would not. In fact in both cases the wife was
suffering from leprosy (though not in virulent form) and on account of purification she emitted foul smell. Since
virulent leprosy is a ground of divorce and not leprosy alone, the court held that unless the husband could show an
injury to him, it would not be cruelty. The learned judge further said that intention to injure is also necessary. It is
submitted that if it is shown (as was in both the cases) that cohabitation has become impossible, then it should
amount to cruelty. Every incurable disease does not amount to cruelty, but only that in which cohabitation becomes
impossible or even difficult.

Subjecting the wife to prostitution.—To compel a wife to submit to the overtures of others out of the ignorable
desire to make money by prostituting her amounts to cruelty1. If husband tries to persuade the wife to take lovers
and become a prostitute, it amounts to cruelty2.

Under Muslim Law, attempting to force the wife to lead an immoral life is legislatively laid down as amounting to
cruelty3.

Under Parsi law also, if husband compels his wife to lead the life of a prostitute, it is a separate ground of divorce4.

Asking wife to hide her identity as wife is mental cruelty.5

Demand for dowry and ill-treatment.—In Adarsh Parkash v. Sarita6, the husband and his parents were greedy
people. Their desire for dowry was insatiable. They went on demanding dowry even after two years of marriage,
and since the parents of wife could not meet these, they started ill-treating the wife with a view to coerce her
parents to give dowry. The Delhi High Court held that this amounted to cruelty.

In Shobha Rani v. Madhukar Reddy7, the wife petitioned for divorce on the ground of persistent demand made on
her by her husband and in-laws. The High Court took the view that there was nothing wrong in these demands as
money was needed by the husband for his personal use and in such a case wife should extend help. Reversing the
judgment, the Supreme Court held that demand for dowry is prohibited under the law. That itself was bad enough. It
constituted cruelty, and a decree for dissolution of marriage was passed8.

Threat to commit suicide.—In N.G. Dastane v. S. Dastane9, the Supreme Court opined that threats given by the
wife to her husband that she would put an end to her life if husband would not behave in certain manner would
amount to cruelty. Similar view was expressed by Leila Seth, J., in Shakuntala v. Om Prakash1. In Savitri
Balchandani v. Mulchand Balchandani,2 on the return of the husband from abroad, the wife took poison as soon as
she saw him. She was luckily saved. The court held that attempt to commit suicide with a view to coerce the other
party into doing something which he is not inclined to for whatever reason, amounts to cruelty. In Meera v. Vijay
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Shankar Talchidia3, wife’s consuming three tablets of Crocin with a view to commit suicide to involve her husband in
criminal charge was held not to amount to cruelty. Wife unusual behaviour, such as urinating in her clothes and
outside the house, not properly dressing herself and like unusual behaviour has held to amount to cruelty4.

Wife’s demand to live separately.—In case where the husband is the only son of his parents or whose parents
are ill, wife’s demand to live separately may amount to cruelty. But not in every case it can be so. It will depend on
facts and circumstances of each case5.

Temperamental differences.—Petty squabbles and minor temperamental differences do not amount to cruelty. In
J.L. Nanda v. Veena Nanda6, a couple of advanced age sought divorce on the ground of temperamental differences
and petty squabbles in their early days of married life. Married in 1961, they lived together till 1971 and were
blessed with a son in 1964. They departed company in 1971, and but for a short period in 1975, they had been
living separately from each other. In his petition for divorce, the husband averred that from the very beginning
respondent wife did not like to live in the joint family. She used to behave in a peculiar manner, always created ugly
scenes, indulged in quarrels and taunting and ultimately forced the appellant to shift to a government allotted house
and live separately away from other members of the family. Even then her behaviour continued to be the same and
because of her behaviour ultimately he suffered a nervous breakdown and had to be hospitalised for about 45 days.
The trial Court granted the decree. But, on appeal, both the Single Judge and the Division Bench dismissed the
suit. When the matter reached the Supreme Court, it found no reason to accept the husband’s appeal. G.L. Oza, J.,
observed that parties had a grown-up son who was maturing into a lawyer, implying thereby that at such a mature
age, parties should not seek divorce. The Judge observed, “Some times the temperament of the parties may not be
conducive to each other which may result in petty quarrels and troubles although it was contended by the appellant
that he had to suffer various ailments on account of this kind of behaviour meted out to him by the wife”; but the
court felt that it could not be held on the basis of any material that of the sufferings of appellant was the direct result
of her [respondent’s] conduct. It is submitted that this was not a case of “wear and tear” of married life, but
irretrievable breakdown of marriage.

Parsi law: Court’s discretion to pass a decree for divorce or judicial separation.—Proviso to clause (dd) of the
Parsi Marriage and Divorce Act, 1936 lays down that in a petition for divorce on the ground of cruelty, the court has
discretion to pass a decree of divorce or judicial separation.

Mental Cruelty under Muslim Law

Under the Dissolution of Muslim Marriages Act, 1939, cruelty has been defined in very broad terms, section
2(viii)(a) uses the words “cruelty of conduct even if such conduct does not amount to physical ill-treatment”. This
language is wide enough to include all the aforesaid cases of cruelty that have been discussed earlier. Not merely
this, it would cover all kinds of misconduct, or misbehaviour serious and not very serious, on the part of the
husband, and thus goes much beyond the “legal cruelty” as the term is understood under English law and the
Indian matrimonial statutes1. In Abdul Aziz v. Bashiran Bibi2, a Pakistani case, it was held that a course of conduct
pursued by the husband calculated to break the spirit of the wife by physical or moral force was systematically
exerted towards wife to such a degree and to such a length of time resulting in undermining her health, it would
amount to cruelty. Similarly, where wife is turned out of the matrimonial home or where the breach between the
marital relationship is irreparable or where parties have been on bad terms for a considerable time or where the
husband sued the wife in a criminal court on a false charge, it would amount to cruelty3.

The following have been held to constitute cruelty: where husband did not fetch back wife who had gone to her
parents home with his consent and refuses to pay maintenance4, where the wife is forced to live separately from the
matrimonial home on account of misconduct of the husband and she is allowed to come back only on humiliating
terms5, imputation of immorality and then prosecuting her under section 498 of the Indian Penal Code, 18601 harsh
and irritating conduct of the husband whether by use of foul language or by foul conduct, habitual use of filthy and
abusive and insulting language6.

Where mother-in-law and sisters-in-law taunted her and husband never intervened rather scolded the wife, it would
be mental cruelty. 7

Wife’s dislike or detestation of the husband8 and incompatibility of temperament9 have been held not to amount to
cruelty.

The second type of cruelty stated in the section is that husband associates with women of evil repute. This will
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include adultery as well as living in adultery. But it need not be adultery or living in adultery. Cases of less than
adultery would be covered. Thus if a husband is a pimp, he would be a person who associates with women of ill-
repute. Similarly, mere association with such women would be covered under this section, such as undue familiarity
with such women. In every case, the association has to be with prostitutes.

The third case of cruelty where husband attempts to force his wife to lead an immoral life. This aspect of cruelty has
been discussed earlier.

Under the fourth case of cruelty if the husband disposes of his wife’s property or prevents her from exercising her
legal rights over it amounts to cruelty. Under Muslim law wife does not lose her rights over her property on her
marriage. Even after marriage whatever she acquires belongs to her. She has full right to deal with her property.
Her husband had no right to interfere with any kind of her property. In Zabaida v. Sardar Shah1, the Lahore High
Court opined that the clauses are not happily worded. Abdul Rahman, J., observed: “It is not easy to say whether it
was only meant to refer to a person who had been in the habit of selling his wife’s property for his own selfish ends
or also covers the single act of a person who sells or assigns his wife’s property of any value, however insignificant,
and not for his own advantage, but, say, for the purpose of procuring medicine for his ailing wife when he did not
have the means to buy it himself out of his own money. Nor am I sure that the Legislature was not intending to
provide for cases where a person gets rid of the whole or substantial portion of his wife’s belongings, but also for
cases where a husband happens to dispose of a ring say of Rs. 3 in value... I should interpret the word ‘property’ in
the sense of a substantial portion of wife’s property and its disposal in the sense of getting rid of that property not
for wife’s benefit but for the selfish ends of the husband, not with the object of meeting a pressing need but more in
the sense of waste and this when done with the object of depriving the wife of her property and not with her consent
or for things in and from which her consent might have been reasonable or legitimately presumed, implied or
inferred.” It is true that disposal of a trifle, or fraction of property, may not amount to cruelty under the clause but
then, it is submitted that the learned judge has tried to narrow down the clause so much that unless substantial
portion of property is disposed of, it would not amount to cruelty. Muslim law does not recognize any doctrine (such
as Hindu law does), whereunder the husband can take away wife’s property even in need. Then what is a trifle
depends not upon the pecuniary value of a thing. A ring, in its pecuniary value, may be worth only Rs. 3, but its
sentimental value may be great. It is submitted that any disposal of property which hurts the sentiments of the wife,
or cause emotional or mental strain on her will be covered under this clause. Thus in Badrulnisa Bibi v. Syed
Mohammad Yusuf2, the wife had left her goods at husband’s house and neither took them back nor did she ask her
husband for their return. The court held that this did not amount to deprivation of her property. The court added that
the husband must dispose of his wife’s property with selfish ends to acquire benefit1. It is submitted that this is not a
correct view. With what intention he deprives his wife of her property is immaterial. What is material is that the wife
is deprived of her property or her husband interferes in her rights over it. He cannot take away his wife’s property
even for his own needs without her permission2.

In Jagdish Mitter v. Juna Saini3, a case under Hindu law, where the husband took away wife’s ornaments, it was
held that this act amounted to cruelty.

Where husband disposes of his wife’s property with her consent but does not pay her the sale-proceeds, it would
amount to deprivation of property4.

The fifth case of cruelty is where husband obstructs his wife in the observance of her religious professions or
practices. It has been seen earlier in this work that a Muslim can marry a non-Muslim. This clause will apply even
when a husband obstructs his non-Muslim wife from observance of her religious practices or professions. Under
Islam it seems that the husband could restrain his non-Muslim wife from going to Church or synagogue5. It is
submitted that this clause obviously applies to a non-Muslim as well as Muslim wife. A submission has been made
that if a Muslim wife converts to another religion, this clause will not apply, since apostasy is a ground for
dissolution of marriage under Muslim law. However, it is submitted, till the marriage is terminated on that basis, the
husband has no right to interfere with the observance of the practices of her new religion. If he does so, it would be
a ground of divorce for the wife.

Aboobacker v. Mamu6 is a case wherein this clause came for interpretation. Krishna Iyer, J., said that the religious
practices, the obstruction of which amounts to statutory cruelty under section 2(vii)(e) of the Dissolution of Muslim
Marriage Act, 1939 are, “those observances, the performance of which makes a man or woman Muslim and
departure from which deserves to be castigated as un-Islamic—not deviation from every inconsequential though
orthodox, ritual or mode of life. The statutory vice lies in fundamental violations and obstructions. Again, if every
fugitive passion for fashion coming from either spouse can, with Lass Vegas levity, work a legal disruption of
wedlock, marriages will become plaything of passing fancies and too fluid to be regarded as a firm institution—a
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view most subversive of our cultural heritage. It will be cruel to the concept of cruelty and outraging the modesty of
the statute to cast the net of guilt so wide as to catch within it such pleasurable pleasures as persuasion to see a
cinema or don a dainty saree on her young figure.” In this case, the two instances of cruelty complained of by the
wife were the fact that the husband forced the wife to see a cinema and to don a sari. In this case, the wife also
alleged that the way of life that the husband led was un-Islamic. The learned judge rightly observed that un-
Islamicness of the husband was not covered under the clause, though on facts the judge also found that it was not
so; mere departure from standards of suffocating orthodoxy and from the bigoted beliefs and ritualistic
observances, do not constitute un-Islamic behaviour, nor is the subscription to religious reforms and modern way of
life un-Islamic.

The sixth case of mental cruelty is where a Muslim having more than one wife does not treat them equitably. This is
based on the following verse in the Koran:—

...many women who seem to be good to you, two, three or four and if ye fear that ye cannot do justice (to all) then one
(only). Thus, it is more likely that he will do justice.

The enjoynment of the Kuran is that a Muslim should treat all his wives equally, irrespective of the fact whether she
is virgin, saibba, Muslim, non-Muslim, newly wed or wedded earlier. Under Islamic law a husband was liable to
punishment if he violated the rule of equality among the wives, but their marriage could not be dissolved on this
basis1. In an early case, Ashmabai v. Umar2, the court said that only on a very gross failure of the husband to
render his wife just rights, would be covered under this clause. It is submitted that in view of enjoinment of the
Koran, this restricted meaning of the clause is not correct. Thus a husband who fails to treat his wives equitably
exposes him to the exercise of the right of divorce by his wife. The inequitable treatment may be gross or no so
gross, or even mild. In Umat-ul-Hafiz v. Talib Hussain3, husband went abroad leaving behind his two wives in India.
He provided maintenance for one, but ignored the other. The court granted divorce to neglected wife. Similarly,
where there was no real intention on the part of the husband and no effort was made by him to treat the plaintiff wife
as his wife at all, much less to treat her equitable in accordance with the injunction of the Koran or even on a footing
which having regard to human imperfections and to the circumstance of the husband could be considered as
honest effort in that direction. This was a case of gross inequity and the court granted divorce4. If a husband fails to
treat his wife equitably, whether the fault is his or that of his parents or other relation, wife is entitled to divorce5.
Where husband showed more love and affection towards second wife and she was living separate for 8 years and
he had paid no maintenance she was entitled to dissolution of marriage.6 But where a wife refuses to join the
matrimonial home and insists to live in her father’s house and wants her husband to join her there and being
disgusted with her unreasonable attitude he takes a second wife, the former wife cannot succeed in her suit for
divorce7.

Cumulative Acts and Conducts Amounting to Cruelty

A question has come before the courts as to whether each act or conduct complained to by the plaintiff should by
itself amount to cruelty or whether it is the cumulative effect of all acts and conduct, (or in other words, over all
effects of all the acts and conduct) which should be taken into consideration. Now, the predominant authority is in
favour of the latter view. No hard and fast rules can be laid down as to what acts or conduct will amount to cruelty in
any given case. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding
whether or not a particular state of affairs amounts to legal cruelty, the court has to consider the social status, the
environment, the education, the mental and physical conditions, and the susceptibilities of the innocent spouse as
also the custom and manners of the parties. Whether acts or conduct complained of, constitute cruelty have to be
construed in reference to the whole matrimonial relationship1. It may be that various acts or conduct complained of,
by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may amount to
cruelty. In general, cruelty is, in its character, a cumulative charge. Cruelty may consist of a single act or conduct of
the respondent, or it may consist of a series of acts, none of which by itself can be said to constitute cruelty, but in
their totality they may amount to cruelty. It can also happen that the mental cruelty may be coupled with physical
cruelty2. It may be emphasised that the existence of cruelty depends not on the magnitude of acts or conduct but on
consequences they produce on the others party3. The general rule is that the matrimonial relations must be
considered as a whole and this rule is of special value when cruelty consists of not violent acts but of injurious
reproaches, complaints, accusations and taunts. Thus, any conduct of one spouse which causes disgrace to the
other spouse or subjects him or her to a course of annoyance and indignity amounts to legal cruelty. The harm
apprehended may be mental suffering as distinct from bodily harm, for pain of mind may be even severer than
bodily pain and a spouse disposed to evil may create more misery in a sensitive and affectionate spouse by a
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Chapter VII FAULT GROUNDS OF DIVORCE

course of conduct addressed only to the mind than in fits of anger he were to inflict occasional blows upon her
person4.

Cruelty is a feeling which one forms in view of the conduct of the other party. It may consist of physical as well as
mental torture.5

Harbhajan Singh v. Amarjeet Kaur6 is a very instructive case. In this case parties belonged to Sikh faith. The
following instances of cruelty were cited by the husband, and most of them stood proved:—
(i) She is adamant, thinks high of herself and low of the petitioner and members of his family.
(ii) She insults the petitioner and members of his family.
(iii) On the date of marriage the petitioner’s brother-in-law had purchased a bottle of beer and while it was held
by his cousin the wife snatched it and threw it away.
(iv) The wife refused to help in making plaits and foldings his turban.
(v) The wife used to insult the petitioner by saying that even her father’s servants had better standards of
living.
(vi) The wife refused to clean the dining table and insisted that her husband should provide her with servants.
In order to insult the husband, she asked him to clean the table himself and prepare tea as well.
(vii) At times she refused to cook, with the result that the petitioner had to go hungry to his office.
(viii) At times the wife would not open the door of the house and the petitioner had to keep standing for about
half an hour.
(ix) The wife would not permit the husband to sleep with her saying that he was not worthy of even picking her
chappals. The wife invariably threatened to commit suicide involving the petitioner and his family members
in criminal case so as to ruin them.
(x) Cohabitation was ordinarily a difficult thing, if at all it could be done it was at the behest of the wife. She
was never soft and affectionate. The appellant’s desires were never honoured. As a result of the bad
temperament and treatment meted out, the petitioner suffered from hypertension and high blood pressure.
(xi) The wife lodged false complaints against the husband to his employer bank, that he had defraud the Bank
by withdrawing certain amounts, that he had misused L.T.C. concession and that he had been using bank
stationary for his personal use.

After an elaborate examination of the evidence of these instances of alleged cruelty, Gyani, J., observed:

Certain allegations against the petitioner in respect of withdrawing the amount by deceiving should not be taken very
seriously. The matrimonial cause is not to be converted into a criminal trial. What was more important is the nature of
complaint made by the wife and the consequences likely to result therefrom. If such a conduct is indulged in, and as in this
case it is amply proved to have been indulged in by the wife, then it certainly amounts to cruelty towards the husband
irrespective of the trifling nature of the allegations or the fact that the employer bank has not pursued the same but it
certainly points to cruelty indulged in by the respondent towards her husband.

In conclusion, the learned judge made the following observation which brings the law in consonance with our social
facts and needs and confirms to the modern notions of divorce:

There is no escape from the conclusion that there is no chance or possibility of any conjugal harmony restored between the
parties. Reading the evidence as a whole the irresistible conclusion which falls is that by incompatibility of temperament the
respondent wife can no more live together with the appellant. Although she has all along maintained that she does not wish
to separate herself from the husband but reading the evidence as a whole, the conclusion cannot be escaped that the
marriage has broken down irretrievably and, therefore, deserves to be dissolved.

Taking a totality of view of the evidence on record the incompatibility of temperament of the two spouses virtually
rendering conjugal harmony as impossible. The inevitable course is to separate the two quarrelling parrots if they
cannot live together in the same cage.

Thus, it is submitted, the acts and conduct complained of should be considered in reference to the whole
matrimonial relationship1. It may be that various acts or conduct complained of in isolation to each other do not
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Chapter VII FAULT GROUNDS OF DIVORCE

amount to cruelty, but in their overall effect they may amount to cruelty2. In some Indian cases the view has been
propounded that what amounts to cruelty is not the magnitude of acts or conduct but the consequences they
produce on the other party3. The caution is sounded by the House of Lords in Jamieson v. Jamieson4 thus, every
act must be judged in relation to its surrounding circumstances and, one might add, in relation to the spouse’s
temperament. Acts which appear on the face to be unpardonable may in particular circumstances be, if not justified,
at least excused by the petitioner’s own conduct and the amount of provocation he has offered to the respondent. In
King v. King5, the House of Lords observed that such questions are always questions of degree and the court must
bear in mind the intensive and degree of the respondent’s conduct whilst making allowance for the intensity and
degree of provocation offered by the petitioner and all other relevant facts.

As to what acts and conducts would amount to cruelty, the English courts have used several expressions. The
conduct should be such which is “inexcusable”, “unpardonable”, “unforgivable”, or “grossly excessive”. The shortest
expression is “grave and weighty”6. In short, conduct should be such that no reasonable person would endure.
Although the respondent’s conduct must be weighty, the question before the court is whether this conduct of this
respondent to this petitioner is cruelty. In deciding whether or not a particular state of affairs, conduct or act
amounts to cruelty, the court has to consider the social status, the environment, the education, the mental and
physical conditions and the susceptibilities of the innocent spouses as well as custom and manners of the spouses.
The test cannot be objective. It is subjective.

The Supreme Court in Vinod Kumar Subbiah v. Saraswathi7, has expostulated as to what would not be ordinary
wear and tear of marriage. Calling petitioner the son of prostitute, summoning police on false or flimsy grounds,
making it impossible for any close relative to visit would all be cruelty.

Wife going to Husband’s Office and Telling not to Work and Come Home Amounts to Cruelty to Husband The wife
going to office of her husband and asking him not to work and if he does not come during lunch time to home and
scolding her mother-in-law as Randi and Kulta amounted to cruelty by wife and she deserved divorce by court.1

Ordinary wear and tear of matrimonial life.—Even though a very wide meaning has been given to legal cruelty,
yet it is evident that every act or conduct of one party which makes the other unhappy or miserable cannot amount
to cruelty. Lord Denning said: “Temptation to open the door of cruelty too wide must be resisted lest we may slip
into a state of affairs where the institution of marriage itself is imperilled”2. Thus, the fact that the respondent is
moody, whimsical, mean, stingy, selfish, boorish, irritable, inconsiderate or irascible, will not be sufficient to amount
to cruelty. Similarly, mere neglect or want of affection, disavowal of love, wounding of the feeling or even expression
of hatred will not be a conduct constituting cruelty. Just because the respondent is in the habit of using vulgar,
obscene or rude language or of making offensive remarks, or lacks manners may not amount to a conduct
constituting cruelty. In Raj Kumari v. Ram Prakash3, the wife used to abuse her husband and at times refused to
cook food for him as a protest for his sending money to his parents. She also brought a tawiz to create in him
hatred for his parents. The court held that this does not amount to cruelty. In Narayan Prasad Choubey v.
Prabhadevi4, the wife all long disobeyed her mother-in-law who, a typical Hindu mother-in-law as she was, wanted
her daughter-in-law to be always obedient to her and not to question her commands. The mother-in-law did not
want her to touch certain articles during the periods, but she deliberately touched them; the mother-in-law did not
want her to take bath in cold water but she always took bath in cold water. The mother-in-law did not allow her to
visit neighbours or to go to pictures. The wife resented all this. The wife one day destroyed her mother-in-law’s
tobacco to which the latter was an addict. The court said that all these idiosyncrasies of the wife did not amount to
cruelty, even though they made the husband unhappy. In Anna Saheb v. Tarabai5, the husband on certain
occasions persuaded his wife to accompany him and even pressed her for the same. This led unpleasantness as
the wife did not want to go with him. The court said that such conduct on the part of the husband was perfectly
justified and it could not be said that he treated her with cruelty. Where husband could not prove any of the alleged
cruelty on the part of the wife, it was held to be a case of normal wear and tear of marriage and because there were
two children of the marriage, decree of divorce was set aside.1

That ordinary wear and tear of matrimonial life does not amount to cruelty is now well-established proposition. The
Punjab and Haryana High Court very pertinently observed:

Marriage is a very close and intimate relationship between a man and a woman and when two persons almost strangers to
each other are suddenly thrown together into such a relationship, it is inherent in the situation that they must go through a
period of adjustment, which may be rough or smooth, depending upon the parties concerned. What happens during this
period, has, therefore, to be seen in this context. In other words, if courts are to help preserve marriages too much should
not be made of petty instances of things said or done, until parties have had time to know each other and settle down.
There can, of course, be no hard and fast rule for this as each case has to be considered in its own set of circumstances2.
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Similarly in Santosh Kumari v. Parveen Kumar3 where wife lived only four-five days in the matrimonial home and
complained of cruelty by the husband, Punchhi, J., observed:

...period of four-five days stay immediately after marriage cannot give wife sufficient grounds to claim divorce on the basis
of cruelty, especially when the incidence quoted by her were in the nature of initial wear and tear of marriage. That itself
was a period of adjustment and a little rubbing here and there could not be ruled out altogether. Such short duration could
hardly give a ground to the wife to seek divorce.

What does not amount to cruelty.—It has been held that outburst temper without rancour4 merely writing love
letters to a third person5 non-payment of interim maintenance6 or desertion per se7 or mere flirtation8 does not
constitute cruelty.

When a spouse is provoked to cruelty or where violence or assault is used in self-defence, it does not amount to
cruelty9. In Gurbachan Kaur v. Swaran Singh10, a newly wedded wife was falsely accused of pre-marriage
pregnancy. The wife retaliated by making accusation that the husband was having illicit relationship with his
brother’s wife. This allegation was also false, but the court refused to grant divorce to the husband as it felt that wife
was provoked to make that statement. Acquiescence to the acts or conduct of the defendant is also a good defence
to a charge of cruelty, but submission to acts must be voluntary. If the petitioner has no option but to submit, he or
she cannot be precluded from basing the ground upon these act1. In Meachur v. Meachur2, the husband repeatedly
assaulted his wife for visiting her sister (this can happen in India, too) contrary to his wishes. It was held to be no
defence to the charge of cruelty that the wife could have avoided them by giving in to her husband’s demand which
was obviously unreasonable.

Unemployment of husband, though a factor destabilizing the marriage cannot constitute cruelty. If mental level and
standard of living do not come upto the expectations of the wife or her parents that does not constitute cruelty3.

Further wife’s petition on the ground of cruelty was refused as her own conduct was found unreasonable. She had
made false allegations of adultery against her husband4.

Single act of filing complaint under section 498A, IPC may not constitute cruelty.5

Husband took the ground of mental cruelty. But it was found that wife quarrelled with him as he was having an illicit
relationship with neighbour. He was held not entitled to divorce6.

Removal of mangalsutra at the instance of the husband is not cruelty.7

Failure to conceive is not cruelty.8

Quarrels between the spouses on trivial matters does not amount to cruelty9. Merely calling husband dhobi or son
of dhobi is not sufficient to make life miserable. Reluctance of working wife to do household chores is not cruelty.10

Refusal of wife to part with salary is not cruelty.11

Also where wife suddenly suffered ovarian failure which was curable and there were good chances of conception,
she cannot be called impotent and this fact cannot cause mental cruelty to husband.12

Where wife slapped the mother-in-law after losing temper and she never came forward to adduce evidence and
some disobedience shown towards husband would not constitute cruelty.1

Pleadings.—It is specific requirement of pleadings that when cruelty is taken as ground of matrimonial relief,
averments must be specific, concise, unambiguous and precise2. Vagueness and ambiguity in the averments can
be fatal to the relief.

Divorce on the basis of pleadings.—In the special circumstances other case, in V. Bhagat v. Bhagat3, the
Supreme Court granted divorce on the basis of pleadings.

Cumulative and alternative pleas.—It is very usual that cumulative and alternative grounds of divorce are taken in
most pleadings. In this connection Maya Chatterji v. Shiv Chandra Chatterji4 is an interesting case. It lays down that
if a person files a petition on the grounds of adultery and desertion and if he fails to prove the charge of adultery, his
petition cannot succeed even if he succeeds in proving the charge of desertion, as existence of both is not possible
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cumulatively. In the opinion of Deoki Nandan, J., if the charge of adultery which was levelled by the petitioner
against the wife was false and the petitioner had levelled that charge against the wife, knowing it to be false, no
court of conscience would grant a decree of divorce to the petitioner on the ground of desertion, for in that case the
very fact that the petitioner had levelled a false charge of adultery against his wife, or suspected her character,
would afford a reasonable excuse to the wife, not to live with the petitioner, or to cohabit with him. Indeed, the judge
added, charge of adultery and desertion do not go well with each other and if the charge of adultery fails against the
wife, there is nothing left in the petition to support his prayer for divorce.

The morale of this decision is that when counsel drafts a petition, he must be careful in drafting pleadings, as to
which ground of divorce is really feasible (i.e. after consulting the client who alleges both adultery and desertion,
counsel should assess on the basis of available evidence as to which charge has the reasonable possibility of
success, and then draft the petition). It has become fashionable in drafting the matrimonial petitions to take all
possible grounds of divorce, both cumulative and alternative in the hope that at least one of them would be
established. But that is a wrong strategy.

In Saroj Rani v. Sudarshan Kumar Chadha5, the important question before the court was whether a consent decree
for restitution of conjugal rights would bar a petition under section 13(1A)(ii) of the Hindu Marriage Act, 1956 on the
ground that the consent decree was a collusive decree and therefore, divorce could not be granted in view of
section 23(1)(c) of the Act. In this case in wife’s petition for restitution a consent decree granting the relief was
passed. Since there was no resumption of cohabitation for a period of one year, the husband sued for divorce under
section 13(1A)(ii) of the Act. The trial court declined to pass the decree on the ground that consent decree being
collusive, divorce was barred. On appeal, the Punjab and Haryana High Court disagreeing with the trial court,
passed a decree of divorce. The Supreme Court confirming the decree observed that the consent decrees per se in
matrimonial matters were not collusive, where the parties had agreed to the decree in pursuance of the attempt
made by the court at reconciliation, and if that decree remained unsatisfied, the husband could not be denied
divorce on the ground that this would amount to his taking advantage of his own wrong. Then, the Court added,
whatever be the reason the marriage had broken down irretrievably, and the parties could not live as husband and
wife, and thus in such a case, it was better to close the chapter.

In Satya Pal Sethi v. Sushila Sethi1, also husband filed a petition on two grounds, viz., cruelty and desertion,
wherein the wife counter-charged him with adultery. In this case he failed to establish either, but the wife succeeded
in establishing the charge of adultery. However, she did not claim any relief, i.e., she did not pray for divorce or
judicial separation. It was pressed before the court that since wife’s charge of adultery had been established the
marriage should be dissolved. The court declined to oblige and observed that if the respondent did not desire any
relief, even if her plea in defence (which constitutes a ground for matrimonial relief) succeed, the court did not
possess any jurisdiction to dissolve the marriage.

Particulars of cruelty in the pleadings.—Rules of the High Courts under the matrimonial statutes lay down that in
a petition for matrimonial relief certain particulars shall be stated in the petition. In case petition is on the ground of
cruelty, particulars of cruelty in the pleadings should be stated para-wise. For instance, rule 4 of the Hindu Marriage
(Punjab) Rules, 1956 require that a petition should state the following:—
(i) the date and place of the marriage;
(ii) whether the petitioner and the respondent were Hindus by religion at the time of the marriage and whether
they continue to be so up to the date of the filing of the petition;
(iii) the status and place of residence of the parties to the marriage before the marriage and the time of filing
the petition;
(iv) the principal permanent addresses where the parties have cohabited, including the addresses where they
last resided together;
(v) whether there have been previous proceedings with regard to marriage by or on behalf of any party; if so,
the result of these proceedings;
(vi) whether any children were born of the marriage and, if so, the date and place of birth and the name and
sex of each child separately, and whether alive or dead;
(vii) the matrimonial offences charged set in separate paras with the times and places of their alleged
commission.

In Savitri Balchandani v. Mulchand Balchandani1, a petition for dissolution of marriage on the ground of cruelty
(facts have been stated earlier), it was argued on behalf of the wife that since the petitioner husband had not given
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particulars of cruelty para-wise, the pleadings being defective, the petition should be dismissed. Mohinder Narain,
J., who delivered the judgment of the court felt that there were sufficient particulars given in the petition and if the
respondent felt that these were insufficient, she could have sought better and further particulars from the petitioner
under rule 5 of Order VI of the Code of Civil Procedure, 1908. But since she did not do so it might be assumed that
particulars in the petition were sufficient. The learned judge added:

I am of the view that unless an application for better particulars is made before filing of the written statement, at the stage of
the appeal, or even otherwise, no grievance can be made that rules relating to the contents of the petition have not been
complied with, I am further of the view that it would not be right to dismiss a petition merely because it is asserted or
contended that the rules have not been complied with. If an objection is taken about the deficiency of pleadings, that the
pleadings lack material particulars, an opportunity must be given to make up the deficiency if it can be made up. It is only
when the petitioner refuses to comply with the orders of the court regarding furnishing of the particulars that further action
can be taken by the court.

Similarly, in Sudha v. Mahesh Chand2, the Delhi High Court said that the object of the rule 7(iv) calling upon the
appellant to give specific acts of cruelty by giving occasions and the places where the said acts were committed is
only with a view to enable the respondent to know what case he had to meet and thus to prevent a surprise at the
trial. Thus, where in a petition for dissolution of marriage on the ground of cruelty, there was a categorical
allegations that immediately after the marriage, the respondent-husband told the appellant-wife that he had no mind
to marry, he would never have any marital relations with her and that he made her to sleep separately from him and
when requested by her to have marital relations with her, he used to threaten her with death, it was held that the
trial court was wrong in holding that the averments regarding cruelty were vague, when there was specification of
place in the petition, being the matrimonial home and the occasion mentioned was immediately after the marriage.

Burden of proof or quantum of proof.—In all matrimonial causes, burden of proof is on the petitioner. Thus when
a petition is filed on the basis of cruelty, the petitioner must prove all the elements of legal cruelty.

At one time (when offence theory of divorce has its sway), it was the view that adultery, cruelty or desertion must be
proved beyond all reasonable doubts3. But in N.G. Dastane v. S. Dastane4, Chandrachud, J., (as he then was),
after considering certain English and Australian decisions, took the view that cruelty may be proved on balance of
probabilities. Relying on words “satisfied” in section 23 of the Hindu Marriage Act, 1955 (in other Indian matrimonial
statutes also the same word has been used), the learned judge said that “satisfied” means “satisfied on a
preponderance of probabilities” and not satisfied beyond reasonable doubts. It is a welcome departure from the
rigid test of “beyond all reasonable doubts”, particularly when in modern law, adultery, desertion and cruelty are not
so much regarded as matrimonial offences, but more or less as instances leading to breakdown of marriage. In
Prem Prakash Rubin v. Sarla Rubin1, a case under the Divorce Act, 1869, the Madhya Pradesh High Court said
that though onus of proving cruelty has on the Plaintiff, the uncorroborated testimony of the plaintiff if inspires
confidence can be accepted and this will be sufficient to discharge the burden.

Further the Supreme Court has laid down that proof beyond reasonable doubt is not applicable in matrimonial
disputes. The court has to see that conduct should be grave and weighty though a word of caution has been
sounded that courts should not act in hyper-sensitive way while weighing the gravity of conduct.2 Proof of physical
violence need not be established but continued ill treatment, cessation of marital intercourse, studied neglect
indifference of one spouse towards other leads to inference of cruelty.3 Further in matrimonial disputes family
members, relatives, friends of either spouse, neighbours are the most natural witnesses. Their evidence should be
tested on objective parameters and not thrown overboard on ground of relationship.4

Desertion and Cruelty: Divorce: Matter Remitted to Lower Court

The order of divorce was given by Family Court on ground of desertion and cruelty by considering the evidence in
detail. Appeal was made in High Court. The “cryptic” unreasoned order was passed by High Court. It was held by
the Supreme Court that the High Court did not consider evidence at all. Therefore, the High Court was wrong in
observing that, there were no specific instances of cruelty or desertion. It was further held that the High Court also
relied upon defence evidence though same was not relied upon by Family Court for reasons recorded and hence
the conclusions reached by the High Court could not be endorsed. The matter was remitted to Lower Court and the
Supreme Court declined to consider matter on merits, though parties staying separately for more than two
decades.5
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Cruelty and Desertion by Wife: Divorce

Both the parties were divorcees at the time of marriage. The wife did not allow husband to have sexual intercourse
with her. The sister of wife deposed that later was not willing to marry second time and for this reason there was no
sexual relations between spouses. It was held that the conduct of wife amounts to mental as well as physical cruelty
to husband. Further the wife stayed in her parent’s house. It was also found by the court as desertion by wife from
matrimonial home, hence husband was entitled to divorce by the court.1

Insanity
Under the modern English Law—the Matrimonial Causes Act, 1973—it is not specifically made a ground of divorce.
It is submitted that insanity can also not be covered, as some suggest, under section 1(2)(b) of the Matrimonial
Causes Act, 1973, that clause provides: “The respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent.” Insanity cannot be a behaviour of the respondent.

Insanity is a ground of divorce as well as of judicial separation both under the Hindu Marriage Act, 19552 and the
Special Marriage Act, 19543 and the language of both the clauses is identical. Under the Dissolution of Muslim
Marriage Act, 1939 two years’ insanity of the husband is a ground on which wife can sue for divorce4. But under the
Indian Divorce Act, 1869, insanity is neither a ground for divorce nor judicial separation. The Indian Divorce
(Amendment) Act, 2001 has introduced insanity as a ground of divorce5. This ground is available to both husband
and wife. Under the Parsi Law, pre-marriage insanity and post-marriage insanity are two separate grounds for
divorce.

Mental Disorder of Wife: Divorce in Favour of Husband

In such instant case, the wife used to beat her husband and son and used to cry in night and also made attempts to
commit suicide. Hence, it was held that with those kind of behaviour in house, it could not be said that husband
could have reasonably lived with his wife. Her illness also was proved from medical reports. The husband was
allowed for divorce.6

Hindu Law.—Section 13(1)(iii) of the Hindu Marriage Act, 1955 contains “insanity” as a ground of divorce. It lays
down that a petition may be presented for divorce by either party on the ground that the other party has been
incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.—In this clause—

(a) The expression “mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
(b) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not
including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible
conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.

Special Marriage Act.—Section 27(e) of the Special Marriage Act, 1954 contain “insanity” as a ground of divorce.
Its language is the same as under Hindu Marriage Act, 1955.

Muslim Law.—Under the Dissolution of Muslim Marriage Act, 1939, the term “insanity” has been used in a wide
sense—wider than under other Indian matrimonial statutes. Insanity with or without lucid intervals existing at the
time of marriage or arising after marriage, or existing before the consummation of marriage or arising after the
consummation is a wife’s ground of divorce both among the Shias and Shafis1. The Act lays down that if “the
husband has been insane for a period of two years”, the wife can sue him for divorce. Under the Act, insanity may
be continuous or intermittent; it may be curable or incurable; it may be pre-marriage or post-marriage; it may be
existing before the consummation or may exist thereafter. Thus it includes all the aspects of insanity included under
the Shafi school. It is submitted that insanity as a ground of divorce has wider meaning then legal insanity under
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section 84 of the Indian Penal Code, 1860 and unsoundness of mind under the other Indian matrimonial statutes.
No attempt should be made to restrict it scope by applying precedents under other statutes. In short, general
unsoundness of mind or mental derangement of any type or mental disorder of any nature resulting in the disability
to manage one’s affairs or to understand the ways of society or inability to understand matrimonial obligations
would be covered under insanity. Obviously mere eccentricities, whimsicalness, crudeness or boorishness would
not come within the scope of insanity. In sum, insanity of any quality is ground for divorce. Anything which is not
covered by any form of insanity will not be ground for divorce.

Parsi Law.—Since under Parsi Marriage and Divorce Act, 1936, concept of voidable marriage is not recognised,
pre-marriage insanity is a ground for divorce, section 32(b) of the Act runs:

that the defendant at the time of marriage was of unsound mind and has been habitually so upto the date of suit.

The amending Act of 1988 has inserted a new clause which deals with postmarriage insanity and is worded
identically with Hindu Marriage Act, 1955 andspecial Marriage Act, 1954. Clause (bb) of section 32 of the Act runs:

…..that the defendant has been incurably of unsound mind for a period of two years or upwards immediately preceding the
filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent
that the plaintiff cannot reasonably be expected to live with the defendant.
Explanation.—In this clause,—

(a) The expression “mental disorder” means mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including
subnormality or intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part
of the defendant, and whether or not it requires or is susceptible to medical treatment.

Christian Law
Under Divorce Act, 1869, this ground has been introduced in section 10(iii) which runs as under—

the respondent has been incurably of unsound mind for a continuous period of two years immediately preceding the
presentation of the petition.

Under Christian Law the insanity should be of two continuous years. If the respondent is of unsound mind for two
years continuously, only then this ground shall come into picture.

Insanity: Meaning.—Prior to the amendment of these clauses under the Hindu Marriage Act, 1955 and thespecial
Marriage Act, 1954, by the Marriages Laws (Amendment) Act, 1976, the clauses in both the statutes were worded
thus: the respondent “has been incurably of unsound mind for continuous period of not less than three years
immediately preceding the presentation of the petition.” Under the present clauses there is no period prescribed
under the Dissolution of Muslim Marriages Act, the word is “insane” and insanity has to be for a period of two years.
Under the Parsi law in reference to post-marriage insanity a period of two years is prescribed, in other respect the
clause has, identical language as in the Hindu Marriage Act, 1955.

“Insanity” has already been discussed in Chapter II Part 3 under the title “Soundness of Mind”. All aspects of
“insanity” have been discussed there. Reference may be made to the same. All aspects of unsoundness of mind in
reference to the new clauses of the Hindu Marriage Act, 1955, thespecial Marriage Act, 1954 and Parsi Marriage
and Divorce Act, 1936. These clauses under all the statutes, use, two expressions “incurably of unsound mind” and
“mental disorder”. Thus “mental disorder” is defined in Explanations (a) and (b) of the clause.

The definition of the terms “mental disorder” and “psychopathic disorder” (mental disorder includes psychopathic
disorder) have been borrowed from the Mental Health Act, 1959 (an English statute).

Insanity as a ground of divorce has the following two requirements:—

(i) The respondent has been incurably of unsound mind, or
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(ii) the respondent has been suffering continuously or intermittently from mental disorder of such a kind and to
such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Incurable unsoundness of mind.—Although the clause now do not lay down any period of insanity (under the old
clauses, i.e., before the amendment of 1976, the period was of three years), but unsoundness of mind has to be of
some duration, as the words are “has been”. Further, insanity to be established as incurable has also to be of some
duration. Where the doctor opined that mental disorder was not incurable, divorce was denied to husband.1 At what
period of time unsoundness of mind could be called incurable would differ from case to case. Under Parsi law
period is prescribed as of two years. It seems the test of incurable unsoundness of mind would be: the one who is
incapable of managing himself and his affairs including the problem of society and of married life put without
reference to the causes of such incapacity2. This has been the earliest formulation of insanity. As per Stroud’s
Judicial Dictionary—

Unsoundness of mind may be occasioned either by person of intellect, manifesting itself in delusion; antipathies or the like
or it may arise from a defect of the mind. The mind may be originally so deficient as to be incapable of directing the person
in any matter which requires thought or judgment which is ordinarily called idiocy or the defect may arise from the
weakening of a mind originally strong by disease or accident by physical nature, by which memory is lost and the faculties
are paralysed, although there is no perversion of mind nor any species of that insanity which is ordinarily called mania.

In Ajitrai Shivprasad Mehta v. Bai Vasumati3, the Court observed that the test to be applied is whether by reason of
his mental condition, he is capable of managing himself and the affairs and if not, whether he can hope to be
restored to a stage in which he will be able to do, and the test of the capacity is that of a reasonable person.
Obviously a mere mental defect is not unsoundness of mind. In Bipin Chandra v. Madhuriben4, the Gujarat High
Court propounded the following three propositions:—
(i) it is for the petitioner to establish unsoundness of mind, i.e., burden of proof is on the petitioner,
(ii) the unsoundness of mind should be incurable, and
(iii) respondent cannot be compelled to undergo medical examination, though on account of his refusal, an
adverse inference may be drawn.

It is submitted that if the respondent is capable of exercising his option of not submitting for medical test, then he is
certainly not of unsound mind.

In sum, the test of unsoundness of mind is such mental incapacity which makes one incapable of managing himself
and his affairs including the problem of the society and of married life, and it will be incurable if there is no
reasonable hope of his being restored to a mental health in which he will be able to do so.

Mental disorder.—Another test of insanity is laid down in the second clause of section 13(1)(iii) of the Hindu
Marriage Act, 1955, section 27(1)(e) of thespecial Marriage Act, 1954 and section 32(bb) of the Parsi Marriage and
Divorce Act, 1936. According to the clauses if the respondent is suffering from a “mental disorder” continuously or
intermittently and mental disorder should be such that the petitioner is not reasonably expected to live with him.
Thus the requirements are two:
(i) respondent is suffering continuously or intermittently with a mental disorder, and
(ii) the mental disorder is of such a quality that the petitioner is not reasonably expected to live with the
respondent.

Continuous or intermittent mental disorder.—Under this clause “mental disorder” need not be continuous. It may
be intermittent. However under Divorce Act, 1869 incurable unsoundness of mind should be for a continuous period
of two years. “Mental disorder” is defined to mean, a state of arrested or incomplete development of mind,
psychopathic disorder, and any other disorder or disability of mind and includes schizophrenia. InN.G. Dastane v. S.
Dastane1, the Bombay High Court has dwelt in detail on schizophrenia and a reference may be made to the same.
Now it seems schizophrenia of any quality at any stage, curable or incurable, will be included. In Tarlochan Singh v.
Jit Kaur2, the wife was found to be suffering from schizophrenia before marriage and continued to suffer from it after
the marriage. In this case the court chose to grant a decree of divorce and not of nullity. The psychopathic disorder
is defined:

“Psychopathic disorder” means persistent disorder or disability of mind (whether or not including subnormality of
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intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and
whether or not it requires or is susceptible to medical treatment.

According to Gillespie and Henderson3:

“Psychopathic disorder” means disorder of the mind (whether or not accompanied by subnormality of intelligence) which
results in abnormally aggressive, seriously irresponsible conduct on the part of the patient, and requires, or is susceptible to
medical treatment.

The authors further observed:

They constitute a rebellious individualistic group who fail to fit in to their social milieu, and whose emotional instability is
largely determined by a state of psychological immaturity which prevents them from adapting to reality and profiting from
experience. They may be adult in years, but emotionally they are so slow and backward and uncontrolled that they behave
like dangerous children. They lack judgment, foresight and ordinary prudence.

The conduct of the person who suffers from psychopathic disorder is determined by sub-conscious or instinctive
level as distinguished from reason or intention1.

Who can petition.—The language of the clause, namely, “the petitioner cannot reasonable be expected to live with
the respondent” indicates that either party can sue. In other words, even the person suffering from insanity or
mental disorder can sue. In England, the practice is that a committee of next friends or a solicitor can sue for
divorce on behalf of the person of unsound mind. It is because such a person may not be able to decide for himself
whether or not he or she is reasonably be expected to live with the respondent. The rationale behind this practice is
that, may be, the other party embarks on a course of exploitation of his spouse of unsound mind morally or
materially.

In India the question has not come before the courts. It would be in the interest of the spouse who is suffering from
unsoundness of mind to provide redress to him when it is felt that he is being exploited by the other spouse.

Ofcourse, the spouse who is sane can sue for divorce on this ground.

Burden of Proof
The burden of proof is on the petitioner who sues on the basis of respondent’s insanity to establish that respondent
is incurably of unsound mind or suffers from mental disorder1. But in the case of the petition by insane person for
divorce, the burden of proof would be on the respondent that the petitioner is a person of sound mind.

In a petition for divorce on the ground of insanity, where parents of the respondent are not examined and the doctor
treating the wife neither named nor examined, the petition is liable to be rejected2.

Where allegation against wife was that she was suffering from paranoid schizophrenia and she wanted a second
opinion. Rejection of her application was held wrong on the ground that the doctor was of 25 years standing and
she has not made personal allegations against him. Since the issue was of serious nature having ramifications of
divorce as well as her career.3 Also where the allegation of schizophrenia was not proved. Husband lived with the
wife for two years without medical assistance, mental disorder not proved.4

In Asha Rani v. Amrat Lal5, the Punjab and Haryana High Court has expressed the view that in a petition for divorce
on the ground insanity, a preliminary inquiry as contemplated by rule 15 or Order XXXII of the Code of Civil
Procedure, 1908 is necessary, Order XXXII has been enacted in the Code with a view to protecting the interests of
minors and persons of unsound mind so that minors and insane persons are represented by suitable persons.
Rules 1 to 14 have been framed in reference to the minor, and rule 15 makes these rules applicable to persons of
unsound mind6.

In Ram Narayan Gupta v. Rameshwari Gupta1, the Supreme Court observed that when ground of matrimonial relief
was mental disorder, then mere branding of the spouse as schizophrenic was not sufficient. It was incumbent on
the petitioner to establish that mental disorder of the respondent was of such a nature and such decree that
petitioner could not reasonably be expected to live with him or her. In this context M.N. Venkatachaliah, J., has
dilated on mental disorder. The learned judge said that all mental abnormalities are not recognised as grounds for
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grant of divorce. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage,
few marriages would, indeed, survive in law. “Schizophrenia” in it’s true sense, is said to be difficult mental-affiction.
It is said to be insidious in its onset and has hereditary predisposing factor. It is characterized by the shallowness of
emotions and is marked by a detachment from reality. In paranoid state, the victim responds even to fleeting
expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution.
Even well meant acts of kindness and expression of sympathy appear to the victim as insidious traps. In its worst
manifestation, this illness produces a crude wrench from reality and brings about a lowering of the higher mental
functions. But the personality disintegration that characterises this disease may be of varying degrees. Not all
schizophrenics are characterised by the same intensity of the disease. The same view as taken in Kadambani Sahu
v. Reshamlal Sahu1.

Where the wife refused to submit herself who a medical committee and the names of psychiatrists and medicines
were found in her own handwriting and mental disorder was proved2.

Mental disorder discovered after 13 years of the marriage is untenable. There were allegations that she had torn off
wedding garland just after wedding. Raising these allegations after 13 years3.

In Joykitty Mathew v. Valsamma Kurvilla4, the Kerala High Court expressed the view that under the Indian Divorce
Act, 1869 the burden of proof is more stringent than underhindu Marriage Act, 1955. But it is submitted that this is
not a correct view, particularly after the Supreme Court decision inN.G. Dastane v. S. Dastane5, which has laid
down the test of preponderance of probabilities6.

In Suvaranlata v. Mohan Anandrao Deshmukh,7 the divorce court had given finding that wife was suffering from
schizophrenia but in custody proceedings this fact was found to be incorrect. Since branding mother of child as
schizophrenic would have serious effect on child, such finding was set aside.

Leprosy
With the exception of1the Parsi Marriage and Divorce Act, 1936, leprosy is a ground of divorce under all other
Indian personal laws. Under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 it is both a ground of
divorce and judicial separation. Under Muslim law it is only wife’s ground for divorce.

The wordings of the clause containing the ground of leprosy are different under all three statutes. Under the Hindu
Marriage Act, 1955 leprosy has to be virulent and incurable, while under thespecial Marriage Act, 1954 the
respondent must be suffering from leprosy which has not been contracted from the petitioner. On the other hand,
under Dissolution of Muslim Marriage Act, 1939 only thing need be shown is that the respondent is suffering from
leprosy.

Hindu Law.—Clause (iv) of sub-section (1) of section 13 of the Hindu Marriage Act, 1955 lays down that the
divorce can be obtained by a spouse if the other:

has been suffering from a virulent and incurable form of leprosy.

Under the Hindu Marriage Act, 1955 the requirement of the ground are the following two:—
(i) leprosy should be virulent, and
(ii) leprosy should be incurable.

Special Marriage Act.—Clause (g) of sub-section (1) of section 27 of the Special Marriage Act, 1954 lays down
that the petitioner can seek divorce if the respondent—

has been suffering from leprosy, the disease not having been contracted from the petitioner.

Under the Act the requirement is that the disease has not been contracted from respondent. This obviously
indicated that disease should be in a communicable form. Usually leprosy in a communicable form is virulent as
well as incurable.

Muslim Law.—Clause (vi) of section 2 of the Dissolution of Muslim Marriage Act, 1939 lays down that wife may sue
her husband for divorce if he—
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Chapter VII FAULT GROUNDS OF DIVORCE

is suffering from leprosy.

Christian Law.—Clause (iv) of section 10 of the Divorce Act, 1869 runs as under—

respondent has for a period of not less than two years immediately preceding the presentation of petition has been
suffering from virulent and incurable form of leprosy.

Leprosy: Meaning
Socially looked at, leprosy has always been considered as a loathsome disease and a leper has always been a
social out-caste. Everywhere in the world there are leper colonies where they are segregated from others. Many
systems disinherit them. Under the old Hindu law leprosy was a disqualification from inheritance. Contagiousness of
leprosy and repulsive and revulsive outward manifestations are responsible for creating a psychology where man
not merely shuns the company of lepers but looks at them loathfully and scornfully. Probably, this apathy towards
lepers created a movement in favour of lepers and great leaders all over the world favoured a human approach
towards them. Gandhiji did a lot to ameliorate their lot. Mother Teresa is also engaged in the same work. All over
the world, humanists, sociologists and social workers have been leading movement for a human approach towards
lepers. However, in most systems leprosy has been a ground for divorce. It is submitted that having a humanist
approach towards lepers is one thing, but to compel a healthy spouse to live with a leper is another matter. A bridge
has to be built between them. We should not allow our minds to be swayed by feelings of emotional loathing and
revulsion with which leprosy patients have been treated throughout human history in all countries throughout the
world and that we should take up a very human and balanced outlook and accept leprosy “as simply another
disorder that requires medical attention.” That this is a correct social approach to leprosy should not provide any
justifications “for compelling a person to live with a spouse who is suffering from an aggravated form of leprosy and
who can give him and his children leprosy almost any moment in their daily life. There is no doubt that the law-
makers do not treat the subject of divorce lightly and must have taken into consideration the consequences of one
spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a
way out for the former1.

There are various types of leprosy. They are classified as under:

(a) Lepromatous leprosy,
(b) Tuberculoid leprosy,
(c) Maculoanaesthetic leprosy,
(d) Polyneuritic leprosy,
(e) Borderline leprosy, and
(f) Indeterminate leprosy.

Of these, lepromatous leprosy, at present, is the most dangerous and aggravated form of leprosy. In this leprosy,
the person suffering from it has low resistance and mycobacterium leproe multiply very fast, almost in astronomical
number. It is in malignant form and highly contagious. It is incurable and there are hardly any chances of self-arrest
and regression.

Probably borderline leprosy and indeterminate leprosy are not contagious and cannot be contracted from another
by mere physical contact. Leprosy, however, is not always loathsome, contagious, incurable and virulent. Some
forms of leprosy are slight, curable, un-contagious and non-virulent. Thus leucoderma, wrongly called leprosy, is not
envisaged as a type of leprosy constituting ground of divorce or judicial separation under any matrimonial statute in
India. That seems to be the reason that under the Hindu Marriage Act, 1955 leprosy to be a ground of divorce
should be virulent and incurable while under thespecial Marriage Act, 1954 it should be in communicable form.

Leprosy in law is not the same thing as leprosy in medical science, though medical evidence to show that leprosy is
virulent and incurable is admissible and necessary.
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Leprosy under Hindu Law

Virulent Leprosy.—Under the Hindu Marriage Act, 1955 leprosy to be a ground for divorce or judicial separation
should satisfy two qualifications viz. (a) it should be virulent, and (b) it should be incurable.

It appears that malignant or venomous leprosy is virulent leprosy. Lepromatous leprosy which is malignant and
contagious and in which prognosis is usually grave is a form of virulent leprosy. The word “virulent” is not a medical
term, nor it has been defined in the Act. According to Chamber’s Dictionary: “virulent” means ‘highly poisonous or
malignant, venomous, or acrimonious. In Swarajya Lakshmi v. G.C. Padma Rao1, the Court was concerned with
lepromatous leprosy which is recognized by all medical authorities as malignant and contagious and, therefore,
virulent. Mukherjee, J., in his judgment has collected the meaning of lepromatous leprosy from medical authorities.
The Supreme Court held that lepromatous leprosy is virulent. This type of leprosy is malignant and contagious. It is
also incurable form of leprosy. Thus a leprosy which is malignant and contagious is virulent leprosy. The test of
virulent leprosy is that it should be malignant and contagious. In this context one should look at section 27(1)(g) of
the Special Marriage Act, 1954, which uses the words “disease not having been contracted from the petitioner”.
Only a contagious disease can be contracted.

Another interesting aspect of this decision is that Mukherjee, J., rejected the argument that the word “virulent”
should be given the same interpretation which has been given to it under Hindu law where virulent leprosy is a
disqualification for inheritance. The learned judge observed:

‘Virulent’ as a ground for exclusion from inheritance is treated from an entirely different angle in the Hindu religious and
legal texts. The general emphasis in those contexts was of the competence of a man to perform his social and religious
obligations and no word has been used in those texts which could be referred to as the corresponding Sanskrit word for
‘virulent’. The decisions of the different High Courts and the Privy Council where the word ‘virulent’ has been used for
interpreting the Hindu law on the subject have used it to describe the leprosy of the most serious and aggravated type. This
does not therefore give any sure and reliable guide in interpreting the word ‘virulent’.

Incurable.—Under the Hindu Marriage Act, 1955 ‘leprosy’ as a ground for divorce should not only be virulent but it
should also be incurable. Before the clause was amended by the Amending Act of 1976 it was laid down that
leprosy should be for a duration of at least three years. The Marriage Laws (Amendment) Act. 1976 has omitted the
period of three years. It seems that the period was redundant. No leprosy can be said to be incurable unless some
period elapses from the time it was diagnosed as such. When it is found to be incurable (even, say after three to six
months), then there is no need for prescribing any period. That seems to be rationale for deleting the period of three
years.

Despite the fact that modern medical science provides cure for some type of leprosy, yet all types of leprosy are not
curable. Whether or not leprosy is curable would depend on medical evidence in each individual case. A mild type
of leprosy which is curable is obviously not the type of leprosy envisaged as a ground for divorce under the clause.
Sometimes its spread can be arrested by a treatment continued for a considerable period but relapses are frequent.
Then such a leprosy will be considered as incurable1.

Interlocutory orders for undergoing treatment.—When on the basis of evidence, the trial court comes to the
conclusion that respondent is suffering from virulent and incurable leprosy, whether the trial court can pass an
interim order that the respondent should undergo treatment under a specialist for a period of six months or so and if
at the end of that period it was found that her leprosy was not curable, then the husband could move the court for
decree of divorce. The Orissa High Court has held that such an order was illegal because it militated against the
very object of section 13(1)(iv) of the Hindu Marriage Act, 1955. Once the petitioner was able to discharge his onus
of showing that the respondent was suffering from virulent and incurable leprosy, a decree in his favour should be
passed. There was no provision under the Hindu Marriage Act, 1955 under which such an order could be passed.
The inherent power under section 151 of the Code of Civil Procedure, 1908 could also not be utilized for this
purpose.

Leprosy under Special Marriage Act

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It appears to be rather odd that under the Special Marriage Act, 1954, leprosy of any type, whether virulent or non-
virulent and whether curable or incurable is a ground of divorce just as it is under Muslim law. Only qualification is
that it should not have been contracted from the petitioner. If it is not contracted from the petitioner, any type of
leprosy can form the ground of divorce but leprosy should be contagious.

Leprosy under Muslim Law

The unique aspect of leprosy as wife’s ground for divorce under Muslim law is that it need not be incurable or
virulent. It may also be of any duration. In Md. Ibrahim v. Altafan2, the Allahabad High Court observed that leprosy
of any type and of any duration is a ground of divorce under Muslim law.

Under Shia law if wife is suffering from leprosy or Juzam (leucoderma), the husband can sue her for divorce. It is
submitted that leucoderma would not be included in leprosy under clause (vi) of section 2 of the Dissolution of
Muslim Marriage Act, 1939, where husband’s leprosy simpliciter is wife’s ground of divorce.

Leprosy under Christian Law

Leprosy as envisaged under the Divorce Act, 1869 has to be continuous for a period of two years immediately
preceding the presentation of petition. Further it has to be virulent and incurable to invoke this ground.

Venereal Diseases
Venereal disease is not a ground for judicial separation under the Divorce Act, 1869. On the other hand, it is a
ground for divorce under thehindu Marriage Act, 1955,1Special Marriage Act, 1954,2 the Dissolution of Muslim
Marriage Act, 19393and Parsi Marriage and Divorce Act, 19364. It is also a ground of judicial separation under the
first two statutes. While under the former two statutes the ground is in identical language, under the last two
statutes its language is slightly different. Under the former two statutes venereal disease has to be in a
communicable form, while under the Dissolution of Muslim Marriage Act, 1939 the disease should be virulent.
Under the Parsi Marriage and Divorce Act, 1936, the requirement is that the defendant had infected the plaintiff with
the disease. In Divorce Act, 1869, it has been recently added.5

Hindu Marriage Act.—Clause (v) of sub-section (1) of section 13 of the Hindu Marriage Act, 1955 which contains
the venereal disease as a ground of divorce lays down that a spouse may present a petition for dissolution of
marriage on the ground that the other spouse—

has been suffering from venereal disease in a communicable form.

Special Marriage Act.—Clause (f) of sub-section (1) of section 27 of the Special Marriage Act, 1954 which lays
down venereal disease as a ground of divorce provides that a spouse may present a petition for divorce on the
ground that the respondent—

has been suffering from venereal disease in a communicable form.

One should observe that the language of both the clauses under the Hindu Marriage Act, 1955 and thespecial
Marriage Act, 1954 is identical.

Muslim Law.—Clause (vi) of section 2 of the Dissolution of Muslim Marriage Act, 1939 which contains the venereal
disease as a ground of divorce lays down that a Muslim wife may sue her husband for divorce on the ground—

that the husband...is suffering from...virulent venereal disease.

Parsi Law.—Clause (e) of section 32 of the Parsi Marriage and Divorce Act, 1936 which contains venereal disease
as a ground of divorce lays down that a spouse may sue the other spouse for divorce on the ground—

that the defendant has since the solemnization of the marriage… infected the plaintiff with venereal disease.
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Clause (v) of section 10 of the Divorce Act, 1869 runs as under—

the respondent has, for a period of not has than two years immediately preceding the presentation of petition has been
suffering from venereal disease in a communicable form.

Venereal Disease: Meaning

In regard to the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954, the Marriage Laws (Amendment) Act,
1976 has simplified this ground. Prior to amendment, the disease was required to be of three years duration. The
amendment has done away with the period. Now under the Special Marriage Act, 1954 and the Hindu Marriage Act,
1955 the venereal disease to be ground of divorce or judicial separation should be in a communicable form. On the
other hand, under Dissolution of Muslim Marriage Act, 1939 it should be virulent, while under the Parsi Marriage
and Divorce Act, 1936 a spouse cannot sue for divorce, unless he or she gets infected with the venereal disease
from the other spouse. If the spouse seeking divorce does not get infected from the disease from the other spouse,
it is immaterial that the other party is suffering from a venereal disease in a communicable form or in an aggravated
or virulent form.

According to Encyclopaedia Britannica:

Venereal disease comprise a number of contagious diseases that are most commonly acquired in sexual intercourse.
Included in this group are both a destroyer of life (Syphilis) and a preventer of life (Gonorrhea). The group includes at least
three other diseases: chancroid, Iymphogranuloma venereum and granuloma inguinale. These five are linked not because
of similarity of causative agents, tissue reactions and symptoms produced, but because of the principal means of spread of
each disease is by sexual intercourse especially promiscuous sexual intercourse, as implied by their group name, Venereal
which is derived from the name of goddess of love, Venus. Not only are the causative agents different morphologically but
they also represent five distinct classes of micro-organisms: spirochetes, bacilli, viruses, and the Donovan body (perhaps a
bacterium).

The most common form of venereal disease are Syphilis and Gonorrhea, and of these two, former is considered to
be more dangerous. Gonorrhea is considered to be treatable and in most of the cases complete cure can be
obtained. Syphilis in early stage in also curable. Congenital syphilis is not a disease in a communicable form and is
thus not considered to be ground of divorce.

The three other communicable venereal diseases are named as chancroid, lymphogramuloma venereum, and
granuloma inguinale.

In Mr. X. v. Hospital Z.,1 (though a case under Article 21 of the Constitution of India, i.e., right to privacy where the
question was as to the disclosure of a person being HIV positive by the hospital is violative of Article 21?) in the
context of marriage it was held that the basis of this institution is a healthy body and moral ethics. Since law
provides venereal disease as a ground for divorce, it implies that a person suffering from venereal disease prior to
marriage must be injuncted from entering into marriage so as to prevent him from spoiling the health and
consequently the life of an innocent spouse.

Duration and disease having contracted from the petitioner.—It is immaterial that the disease is curable or was
contracted innocently.

The duration of the disease is not mentioned in any of these statutes, it may, therefore, be of any duration.
However, under the Divorce Act, 1869 it has to be for a period of not less than two years immediately preceding the
presentation of petition.

The Hindu Marriage Act, 1955 does not say that the disease should not have been contracted from the petitioner. If
the disease is contracted from the petitioner, under section 23(1)(a) of the Hindu Marriage Act, 1955, the decree of
divorce cannot be passed as it would amount to taking advantage of one’s own wrong. Under the Parsi Marriage
and Divorce Act, 1936, it is specifically laid down that the disease having not being contracted from the petitioner. It
is submitted that even though there is no such clause as in the Special Marriage Act, 1954 or the Dissolution of
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Chapter VII FAULT GROUNDS OF DIVORCE

Muslim Marriage Act, 1939, or the Divorce Act, 1869 the equitable principle that one who seeks equity must have
clean hands would apply. “Venereal disease” has been included in the statutes as a fault ground.

English Law.—Under English law, if the respondent was suffering at the time of marriage from a venereal disease
in a communicable form, then marriage is rendered voidable and the other party can obtain a decree of annulment
of marriage1.

If the respondent infects the petitioner with a venereal disease, then in English law it is considered to be cruelty and
on that basis divorce may be obtained2.

Conversion or Apostasy
Conversion to another religion is known as apostasy under Muslim law. Conversion to another religion is a ground
of divorce under the Hindu Marriage Act, 19553, and the Parsi Marriage and Divorce Act, 19364. Apostasy is a
ground of divorce under Muslim law.

Conversion as such is not a ground of divorce under the Indian Divorce Act, 1869. Husband’s bigamy plus
conversion is a wife’s ground of divorce and not simple conversion5. Under the Act, conversion or conversion plus
marriage with another is not a ground of divorce for the husband.

Under the Special Marriage Act, 1954, the question of conversion as a ground of divorce does not arise as the Act,
stipulates for inter-religious marriages.

Hindu Marriage Act.—Clause (j) of sub-section (1) of section 13 which contains this ground lays down that a
spouse may petition for divorce on the ground that the other party—

has ceased to be a Hindu by conversion to another religion.

Parsi Marriage and Divorce Act.—Clause (i) of section 32 which contains this ground lays down that a spouse
may sue for divorce on the ground—

that the defendant has ceased to be a Parsi by conversion to another religion:

Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff
came to know of the fact.

Divorce Act.—Earlier this ground was available only to the wife. But after coming into force of Act 51 of 2001 this
ground is available to both. Section 10(ii) of the Divorce Act, 1869 runs as under—

the respondent has ceased to be Christian by conversion to another religion.

Dissolution of Muslim Marriages Act.—Conversion or apostasy is a ground of divorce under Muslim law. Section
4 of the Dissolution of Muslim Marriages Act, 1939 clarifies this position in regard to Muslim wife. The section runs:

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself
operate to dissolve her marriage:
Provided that after such renunciation, or conversion the woman shall be entitled to obtain a decree for the dissolution of her
marriage on any of the ground mentioned in section 2:
Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who
re-embraces her former faith.

HINDU LAW

Conversion
When a person adopts another religion by formally converting to it (in accordance with the formalities prescribed by
the religion to which conversion is sought), he ceases to be the follower of his former faith and becomes the
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Chapter VII FAULT GROUNDS OF DIVORCE

follower of his new faith. Ordinarily, conversion is effected by undergoing the formalities or ceremonies of
conversion laid down by the religion to which conversion is sought. Different religious prescribe different modes of
conversion.

Conversion: Meaning.—Under Hindu law, a person does not lose his faith by mere renunciation of it; nor does he
belong to another faith by merely professing it or practising it. Thus, if a person, Christian by faith, becomes an
admirer of Hinduism, so much so that he starts practising and preaching it, he does not thereby becomes a Hindu.

The Dharmashastra did not prescribe any ceremony for conversion to Hinduism. It seems that ancient Hindu law
did not provide for conversion of followers of other religions. Among the Hindus, it is only the Arya Samajists who
prescribe a ceremony of conversion, known as sudhi. A person who undergoes the ceremony of sudhi converts to
Hinduism but then he is Arya Samjist Hindu. A non-Hindu becomes a Hindu if he undergoes the ceremonies of
conversion1.

In a series of cases1, culminating with the Supreme Court decision in Perumal Nadar v. Ponnuswami Nadar
(minor)2, it has been laid down that a person may also become Hindu if after expressing an intention, expressly or
impliedly, he lives as a Hindu and the community or caste, into the fold of which he is ushered in, accepts him as a
member or that community or caste. In such case one has to look to the intention and conduct of the convert, and if
the consensus of the community into which he was initiated is sufficiently indicative of his conversion, then the lack
of some formalities cannot negative what is an accomplished fact3. In such a case no formal ceremony of
purification or expiation is necessary to effectuate conversion. It is immaterial to which class of Hindus convert
belongs. It is also not necessary to show that he practises or follows tenets of any sect or sub-sect of Hindus.
However, because a Hindu of a higher caste becomes a shareholder of the Kerala Scheduled Castes and Schedule
Tribes Welfare Board does not mean that he has been accepted as a member of the Scheduled Caste and thus has
become a Scheduled Caste4.

A person who is a reconvert to Hinduism, Jainism, Buddhism or Sikhism is also a Hindu, both under the uncodified
Hindu law5 and codified Hindu law6. A person who ceases to be a Hindu by converting to a non-Hindu religion will,
again, become a Hindu if he reconverts to any of the four religions of Hindus7. It is not necessary that he reconverts
to the same religion from which he converted to the non-Hindu religion. Thus, a Jain who converted to Islam will be
a Hindu if he reconverts to Sikhism. However, technically, this is not a case of reconversion but of double
conversion. In a case where a person belonging to a Scheduled Caste who had converted to Christianity,
reconverts to Hinduism, he and his children will belong to the former Schedule Caste only if the members of that
caste admit him to their fold8. For reconversion to Hinduism no particular ceremony or any expiatory rite is
necessary, unless the practice of caste makes it mandatory9.

In sum, under modern Hindu law two propositions are well-established. A non-Hindu will become Hindu by
conversion:
(i) if he undergoes a formal ceremony of conversion or reconversion prescribed by the caste or community to
which he converts or reconverts, or
(ii) if he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing
that intention coupled with the acceptance of him as a member of the community into the fold of which he
was ushered into.

The Kerala High Court in Mohandas v. Devaswom Board1, has gone a step further from the proposition propounded
by the Supreme Court in Peerumal v. Poonuswami2. It held that when a person declares that he is a follower of
Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intention, it amounts to
his having accepted the Hindu approach to God. He becomes a Hindu by conversion. In this case one Jesudas, a
Catholic Christian by birth and famous play-back singer used to give devotional music in a Hindu temple and
worshipped there like a Hindu. He had also filed declaration, “I declare that I am a follower of Hindu faith.” On these
facts the court held that Jesudas was a Hindu and could not be prevented from entering the temple.

Conversion as ground of Divorce.—Under clause (ii) of sub-section (1) of section 13 of the Hindu Marriage Act,
1955 the following two conditions must be satisfied before the ground can be invoked:
(i) Respondent has ceased to be a Hindu, and
(ii) Respondent has converted to another religion.

Ceases to be a Hindu.—A person does not cease to be a Hindu merely because he declares that he has no faith
in his religion. A person will not cease to be a Hindu if he does not practise his religion, or does not have faith in his
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Chapter VII FAULT GROUNDS OF DIVORCE

religion or renounces his religion or leads an unorthodox life, so much so even if he eats beef and insults all Hindu
Gods and Goddesses. He will also not cease to be a Hindu even if he expresses his faith in another religion and
even starts practising another religion. Such a person will continue to be Hindu. Thus, ceasing to be a Hindu is
hardly material except in the context of conversion3.

Conversion to another Religion.—The second requirement is that the respondent has converted to a non-Hindu
faith. A person who, at the time of his marriage was a Hindu by religion converts to Sikhism, Jainism or Buddhism,
will not cease to be Hindu, since a person who is Sikh or Buddhist or Jain by religion is a Hindu.

This ground will be available only when the respondent converts to a non-Hindu faith, such as to the Christianity,
Islam or Zoroastrianism. What is required is a conversion to a non-Hindu faith, and such conversion can take place
when the respondent undergoes the formalities prescribed by the faith to which he seeks conversion. Sincerity of
conversion or genuineness of belief in the new faith is immaterial. It is also not necessary that the respondent, after
conversion, should practice his new faith.

The conversion of the respondent to a non-Hindu faith does not amount to automatic dissolution of marriage. The
petitioner has to file a petition to obtain a decree of divorce. If a petitioner chooses to continue to live with his
spouse who has converted to another religion, there is nothing to debar him from doing so.
MUSLIM LAW

Conversion under Muslim law.—Mere renunciation of Islam by a Muslim amounts to apostasy under Muslim law.
So does conversion of Muslim to any other religion amounts to apostasy. Apostasy may be express or implied.
When a Muslim says, “I renounce Islam” or “I do not believe in God and the Prophet Mohammad”, the apostasy is
expressed, when a Muslim uses grossly disrespectful language towards the Prophet or the Koran, the apostasy is
implied. Formal conversion to another religion also amounts to apostasy. A mere declaration such as “I renounce
Islam” is enough. Formal conversion need not be resorted. A non-Muslim may become a Muslim by professing
Islam, i.e., by acknowledging that there is only one God and Mohammad is his prophet, or by under-going the
ceremonies of conversion to Islam. A convert to Islam is ordinarily governed by Muslim law.

“Profession with or without conversion is necessary and sufficient to remove the disability of having another religion”
thus observed Lord Macnaughten in Abdul Razaak v. Aga Mohammed1. In this case a wealthy Muslim, Abdul by
name, had died, apparently, without any heir. But one Abdul Razak, made a claim to his estate on the plea that he
was the son of the pre-deceased brother of Abdul. The brother of Abdul had married a Burmese woman, Mah Thai,
a Buddhist by religion, but it was not established that she had been converted to Islam either before, or after the
marriage. It was established that she used to recite the Muslim prayers. The Court came to the conclusion that,
since the marriage of Abdul’s brother with the Buddhist woman was void under Muslim law, Abdul Razak, though a
Muslim, could not succeed to Abdul’s estate, being an illegitimate child. The converse situation arose in Mst.
Resham Bibi v. Khuda Baksha2, wherein a Muslim wife, with a view to ending an unhappy marriage, renounced
Islam, and prayed to the court that Muslim law of apostasy should be applied to her and her marriage should be
deemed to have been automatically dissolved from the date of her apostasy. Curiously enough, the District Judge
ordered a plate of pork to be brought in the court room, and the wife was asked to eat out of it. On her refusal to do
so, the Court concluded that her apostasy was insincere. Accepting the appeal, the Appellate Court, observed.
“One may relinquish a faith which is an easy thing to do, but one may not acquire liking for those things which one
has been taught to detest throughout one’s life.” The court accepted the wife’s statement that she no longer
believed in Allah, in Mohammed as her Prophet and in the Koran, and thus ceased to profess Islam. The court then
said: “...a person’s religious belief is not a tangible thing which can be seen or touched. It is the mental condition of
one’s believing in certain articles of faith that constitutes one’s religion and if one ceases to believe in them, which
again is a mere mental condition, one automatically ceases to profess that religion3. In this case, Din Mohammad,
J., remarked that the motive of the declarer was immaterial; a person might renounce his faith for love or avarice;
one might do so to get rid of his present commitments, or truly to seek salvation elsewhere, but that would not affect
the factum of change of faith. And, in matters like these, it was the factum alone that matters and not the latent
spring of action which resulted therefrom1.

Whether mere profession of Islam sufficient to make a non-Muslim a Muslim, is not entirely free from doubt. It is
true, as Lord Macnaughten had stated, no court of law can test or gauge the sincerity of religious belief. In all cases
where, according to Muslim law, unbelief, or difference of creed, is a bar to marriage with a true believer, it is
enough if the alien in religion embraces Islam2. It is submitted that a non-Muslim will become a Muslim by
professing Islam, provided it is no colourable or mala fide or made with a view to perpetrating fraud upon law3.

It appears to be a well-established proposition of law that a non-Muslim, on undergoing the ceremonies of

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conversion prescribed under Islam, becomes a Muslim. In Islam, the ceremonies of conversion are very simple. A
person seeking conversion to Islam may go to a Muslim mosque. On the Imam asking him, “Are you voluntarily
embracing Islam,” if he answers affirmatively, he is given the Kalma to recite. On the completion of the recitation of
the Kalma, the conversion ceremony is over, and the non-Muslim becomes a Muslim. The Imam then confers a
Muslim name on the convert. In most mosques, a register is kept in which the name of the person embracing Islam
is entered and the convert puts his signature thereto4.

Conversion of a Muslim from one sect to another does not amount to apostasy, and a person changing from one
sect to another continues to be a Muslim5.

The genuineness of belief in the new faith is immaterial, and even when convert does not practise the new faith, he
will continue to be a Muslim. But it is necessary that the conversion should be bona fide, honest, and should not be
colourable, pretended or dishonest. In the leading case, Skinner v. Orde6, a Christian woman was cohabiting with a
married Christian man, with a view to legalizing their living together as husband and wife, both of them underwent a
ceremony of conversion to Islam. After conversion they married. Later on, when the question of validity of this
marriage arose, the Privy Council held that the marriage was null and void on the ground that conversion was not
bona fide: moreover, it was a fraud upon the law, since the parties underwent the ceremony of conversion with a
view to eluding their personal law7.

The question of colourable, fraudulent and dishonest conversion, has come up before the Indian High Courts in a
number of cases, where non-Muslim has embraced Islam, either to claim divorce on the ground of apostasy, or, to
enter into a polygamous marriage. Thus, in the matter of Ram Kumari1, a Hindu Married woman adopted Islam, and
assuming that this meant automatic dissolution of her marriage, took second husband. She was prosecuted and
convicted for bigamy. In Rokeya Bibi v. Anil Kumar2, this aspect of the matter has been very cogently and brilliantly
discussed by Chakravarti, J. In this case, a married Hindu woman, with a view to getting rid of her impotent
husband, embraced Islam, and sought a declaration that on her conversion to Islam her Hindu marriage stood
dissolved. Observing that the question whether conversion was bona fide or merely a device for terminating the
marriage was very important, the learned judge said: “It may be that a court of law cannot test or gauge the sincerity
of religious belief, or that, where here is no question of genuineness of a person’s belief in a certain religion, a court
cannot measure its depth or determine whether it is an intelligent conversion or an ignorant superficial fancy. But a
court can and does find the true intention of man lying behind their acts and can certainly find out from the
circumstances of a case whether pretended conversion was really a means to some further end... Indeed, it seems
to us to be elementary that if a conversion is not inspired by religious feeling and undergone for its own sake, but is
resorted to merely with the object of creating a ground for some claim of right, court of law cannot recognize it as a
good basis for such claim, but held that no lawful foundation of the claim has been proved. When conversion gives
a legal right through a mock conversion and set up as basis of that right is to commit fraud upon the law. We are
clearly of opinion that where party puts forward his conversion to new faith as creating a right in his favour to the
prejudice of another, it is proper and necessary for a court of law to enquire and find our whether the conversion
was a bona fide one. The court found that conversion was not bona fide, since in the mind of the convert, the
unhappiness caused by her husband’s impotence and conversion to Islam as a means to escape from that
unhappiness, were interconnected3.”

Apostasy as a ground of divorce.—Apostasy leads to dissolution of marriage. In classical Islam apostasy was
considered to be a criminal offence. A male apostate was liable to be awarded death sentence and a female
apostate to life imprisonment. But this is no long so in India.

Under the Indian Muslim law, the rule came to be established that apostasy of either wife or husband operated as a
complete and immediate dissolution of marriage, or instant dissolution, in the words of Amir Ali4.

However, as to the Muslim wife’s conversion to a Kitabia faith, Amir Ali took the view that it did not lead to
dissolution of marriage. He gave the following three reasons:
(i) the marriage between a Muslim and Kitabia woman is lawful under Muslim law,
(ii) the adoption of Kitabia faith by a Muslim wife should not affect the status of marriage, and
(iii) If this would be the consequence, more wives will find apostasy as a mode of dissolution of their
marriages.

But the Indian High Courts took the view that the apostasy of either spouse leads to the dissolution of marriage. The
position is now different after the coming in to force of the Dissolution of Muslim Marriage Act, 1939 It is as under:
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Chapter VII FAULT GROUNDS OF DIVORCE

(i) The apostasy of the husband still results in an instant dissolution of marriage. Thus, where on the apostasy
of the husband, the wife married another man, even before the expiration of idda, it was held that she was
not guilty of bigamy1.
(ii) If a Muslim wife who belonged to another faith before her marriage, reconverts to her original faith, or to
some other faith, then also, it results in the instant dissolution of marriage2.
(iii) The apostasy of a Muslim wife does not result in the dissolution of marriage, instant or otherwise3.
Apostasy of the wife does not bar her right to sue for divorce on any ground specified in section 2, of the
Dissolution of Muslim Marriage Act, 19394.

It seems that the Hanafis took the view that the apostasy lead to instant dissolution of marriage only when marriage
was not consummated. But if the marriage was consummated, the cancellation of marriage remained suspended till
the completion of the period of idda: with this view the Shafis also agreed5. Amir Ali is of the view that even in the
Hanafi law this was the position taken by the later jurists6.

According to the Shias, if the husband apostates before the consummation of marriage, the wife is entitled to half of
the dower, but if it is she who apostates, then no claim for dower can be advanced. If marriage is consummated she
is entitled to full dower. The Hanafis take the view that the results of the dissolution of marriage on the ground of
apostasy are the same as of talak.

Amir Ali is of the view that when both parties apostate and adopt another faith, the marriage remains intact by
consensus7.
CHRISTIAN LAW

Conversion
The Indian Divorce Act, 1869 permits a wife to divorce her husband if he has converted to another religion and
married another woman1. But if the wife converts to another religion, the husband has no such right2.

This position has undergone a sea change after the Amendment of the Act. Now this ground is available to both
husband and wife.3

The Native Converts Marriage Dissolution Act, 1866, lays down that if a person converts to Christianity and his or
her spouse for a period of six continuous months deserts him or repudiates the marriage he can bring a petition for
restitution of conjugal rights. If the decree for restitution of conjugal rights is not complied with for a period of one
year, the convert spouse may sue for divorce. But if after conversion, the non-convert spouse does not refuse to
cohabit with the convert-spouse, the statute, obviously, does not provide any relief.
PARSI LAW

Conversion
Under the Parsi Marriage and Divorce Act, 1936 the requirements of the ground are:
(a) The defendant has ceased to be a Parsi by conversion to another religion.
(b) The suit for divorce is filed within two years of the plaintiff’s knowledge of respondent’s conversion.

It is necessary that both the conditions are satisfied. It may be noted that under the Parsi law, it is not necessary
that one of the spouses should convert to another religion. What is required is that the other spouse has ceased to
be a Parsi. The period of two years within which the plaintiff has to file the suit for dissolution has to be reckoned
not from the date when defendant ceased to be a Parsi but from the date of plaintiff’s knowledge of that fact.
RENUNCIATION OF WORLD

“Renunciation of world” is a ground of divorce only under Hindu law, as renunciation of the world is a typical Hindu
notion.

The life of a Hindu is organized into four Ashramas, or stages of life, of which the Sanyas Ashram (which implies
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Chapter VII FAULT GROUNDS OF DIVORCE

renunciation of the world) is the last Ashram. The Ashrama Dharma is based on the purashartha, individual’s
striving to attain the Ultimate. The theory of purusharthas provides the key to the understanding of the individuals
striving to attain salvation in relationship to society. These purusharthas are four: dharma, artha, kama and moksha.
Of these the dharma pervades throughout the four ashramas. Dharma is created for the well-being of all creation.
All that is free from doing any harm to any created being is Dharma, for, indeed, dharma is created to help all
creations free from any harm.4 “Dharma, is so called because it protects all, dharma preserves all that is created.
Dharma then is surely that principle which is capable of possessing the universe”1. Kama implies desires in men
and enjoyment and satisfaction of the life of senses, including sexual desires, Kama, thus, refers to the totality of
the inmate desires and drives in men. Artha, implies acquisition of wealth and it refers to the means necessary to
acquire worldly prosperity, such as wealth and power. Moksha means attainment of salvation. Dharma controls
everything. Artha and kama are to be acquired in accordance with dharma. The stability of the universe depends
upon dharma, artha and kama, too, depend for their proper management upon dharma. Dharma is the foremost of
all. Artha is said to be middling, and kama is the lowest of the three. Dharma is the holder of the balance in terms of
which artha and kama have to be dealt with, weighed, practised and acquired. Therefore, we should conduct our
lives in accordances with dharma2. Manu says that good of man consists in the harmonious co-ordination of the
three3. As Kulluka puts it, with reference to the supreme end of moksha, the other three objectives of life become
but the means for the attainment of that end salvation (moksha).

The purusharthas are to be practised in the four ashramas. The ashramas are but stages in the journey of life on
the way of final liberation. Vyasa says the four stages of life form a ladder or flight of four steps—the ladder or flight
is attached to the Brahma. By ascending the ladder one reaches the Brahma. In the social sense ashramas are
stages in life, each stage is a training ground for the individual. From one stage to another he passes till he attains
moksha. The four ashramas are, Brahmachary Ashrama, Grihastha Ashrama, Vanprastha Ashrama and the
Sanyasa Ashrama. In the childhood one lives in Brahmacharya Ashrama, acquires education; in the Grihastha
Ashrama an individual satisfies his natural desires of enjoyment and pleasure and acquires wealth. In the old age
the individual seeks moksha. With the upanayana ceremony the young boy is initiated into the Brahrmacharya
Ashrama. In this stage the individual fulfils his obligations to his ancestors, to the members of his family and to
strangers and Gods. On the approach of old age, he enters into the Vanaprashtha Ashrama. In this Ashrama, he
completely becomes detached from the world and worldly life and lives in a forest, a life of utter simplicity and
austerity. But he continues to perform the sacrifices. After the Vanaprashtha Ashrama, the individual enters the last
Ashrama, the Sanyasa Ashrama. It is a life of total renunciation of world. But a person may enter into a holy order
even at the young age and it is not contrary to Hindu religion. Therefore, one may ask that if Sanyasa Ashrama is in
accordance with Hindu religion why should it have been made a ground for divorce? The reason seems to be that
one can follow the religious faith or belief one has, but it should not amount to hardship to one’s spouse. And when
one spouse leaves the other, even by becoming a Sanyasi, it prima facie causes hardship to the other party.
Looked at from this angle, to become a Sanyasi, is nothing but desertion and probably an extreme form of
desertion, where there is no hope that the Sanyasi spouse will ever return to resume cohabitation. This seems to be
the reason for making it a separate ground for divorce.

Clause (vi) of sub section (1) of section 13 of the Hindu Marriage Act, 1955 lays down that a spouse may seek
divorce if the other—

has renounced the world by entering into any religious order.

Thus, the requirements of the clause are the following:—

(a) the other party has renounced the world, and
(b) has entered into a holy order.

Renounced the world—A person renounces the world when he ceases to take any interest in worldly affairs or
retires to a single room or ceases to take any interest in cohabitation or takes a vow of celibacy or becomes a
mauni (i.e. takes a vow that he will not talk) or, in short, he or she ceases to have any social intercourse, yet he
does not join a holy order, then it may amount to desertion or cruelty or it may not amount to anything, but it would
not be covered under the clause as the second condition has not been fulfilled. Just because a person has become
a chela does not mean that he has joined a holy order1.

Entering the holy order.—A person enters into holy or religious order when he undergoes the ceremonies and
rites prescribed by the order into which he enters2. Unless these ceremonies are undergone, it would not amount to
entering into holy order. It is difficult to visualize a situation when a person enters into a holy order and still does not
renounce the world. But, if a person enters into the holy order, yet comes home howsoever degraded he may be in
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the eyes of religion or society, and resumes cohabitation or after entering into the holy order continues to cohabit,
then also the ground will not be available, because though he has entered a religious order, he has not renounced
the world.

Again, merely entering into any holy order may not amount to renunciation of world. For instance, when a Sikh
becomes a Granthi or a Hindu becomes a Pujari in a temple, he does enter into a holy order, yet he is not required
to renounce the world. In fact, he can lead the life of a grihasthi. In such a case this ground is not available.

Presumption of Death
The ground of divorce on the basis of presumption of death exists under the Hindu Marriage Act, 1955, thespecial
Marriage Act, 1954, the Dissolution of Muslim Marriages Act, 1939 and the Divorce Act, 1869. There is no such
provision under the Parsi Marriage and Divorce Act, 1936. In England it was enacted for the first time under the
Matrimonial Cause Act, 1937.

Under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Divorce Act, 1869 the provision is
similar, having the same period of seven years, while under the Dissolution of Muslim Marriages Act, 1939 the
period is four years.

Hindu Marriage Act.—Clause (vii) of sub-section (1) of section 13 of the Hindu Marriage Act, 1955, which contains
the provision lays down that a spouse may file a petition for divorce on the ground that the other spouse—

has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard
of it, had that party been alive.

Special Marriage Act.—Clause (h) of sub-section (1) of section 27 of the Special Marriage Act, 1954, which lays
down this ground provides that a spouse may present a petition for divorce on the ground that the other spouse—

has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard
of the respondent if the respondent had been alive.

Divorce Act 1869.—Clause (vi) of section 10 of the Act—

respondent has not heard of as being alive for a period of 7 years or more by those persons who would naturally have
heard of the respondent if the respondent had been alive.

Dissolution of Muslim Marriages Act.—Clause (i) of section 2 of the Dissolution of Muslim Marriage Act, 1939,
which contains the ground lays down that the wife may sue her husband for dissolution of marriage on the ground—

that the whereabouts of the husband have not been known for a period of four years.

This should be read alongwith section 3 of the Act, and proviso (b) to section 2. Section 3 runs:

In a suit to which clause (i) of section 2 applies—

(a) the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he
had died on the date of the filing of the plaint shall be stated in the plaint,

(b) notice of the suit shall be served on such persons, and

(c) such persons shall have the right to be heard in the suit:

Provided that the paternal uncle and brother of the husband, if any, shall be cited as party even if he or they are
not heirs.

Proviso (b) to section 2 runs:

A decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the
husband appears either in person or through an authorised agent within that period and satisfies the court that he is
prepared to perform his conjugal duties, the court shall set aside the said decree.
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Chapter VII FAULT GROUNDS OF DIVORCE

Rule of Evidence
In most systems of the world it is laid down that if the whereabouts of a person are not known for a certain duration
by those who would have known about him, he would be presumed to be dead. In English law the period of
absence is seven years. So it is under the Indian law. Section 108 of the Indian Evidence Act, 1872, which
embodies this presumption runs as under:

...When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by
those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the
person who affirms it.

Thus, the law lays down that where the whereabout of a person are not known for seven years by his near and dear
ones, he would be presumed to be dead. But then there is no presumption as to exact date of his death1. It cannot
be said that he dies during the first year or the last year of the period of seven years, or on at any time during that
period. The important question in matrimonial law is: whether a spouse can remarry on the basis of the presumption
of death. Suppose, he does so, and after sometimes his former spouse who was presumed to be dead reappears,
will he be guilty of bigamy ? Somewhat similar question arose in Chard v. Chard2, where P and R were married in
1909. P last heard of his wife R in 1917. Presuming her to be dead, he remarried in 1923. However after sometime
P himself petitioned that his 1933 marriage was null and void as the conditions of the presumption that his first wife
was dead had not been proved. On facts, the court accepted this argument and declared that the 1937 marriage
was void. With a view to avoiding such complication, in some systems, the presumption of death has been made a
ground of divorce. Once a decree of divorce is obtained on this basis, even if the spouse who is presumed to be
dead makes appearance, no offence of bigamy will be committed and the validity of the second marriage can also
not be challenged.

English law.—In England, this provision was for the first time enacted in the Matrimonial Causes Act. It has been
reproduced in subsequent Matrimonial Causes Act and at present it is enacted in section 19 of the Matrimonial
Causes Act. The relevant provision of the section 19 runs:
(1) Any married person who alleged that reasonable grounds exist for supposing that the other party to the
marriage is dead may, subject to sub-section (2) below, present a petition to the court to have it presumed
that the other party is dead and to have the marriage dissolved, and the court may, if satisfied that such
reasonable grounds exist, grant a decree of presumption of death and dissolution of the marriage.
(2)...
(b) In any proceedings under this section the fact that for a period of seven years or more the other party
to the marriage has been continually absent from the petitioner and the petitioner has no reason to
believe that the other party has been living within that time shall be evidence that the other party is
dead until the contrary is proved.

In Thompson v. Thompson,3 the Court said that the words “the petitioner has no reason to believe that the other
party has been living within” seven years should be read as, “if nothing has happened within that time to give the
petitioner reason to believe that the test of whether “there is reason to believe” relates to the standard of belief of a
reasonable man; pure speculation is excluded.

Hindu Marriage Act, Special Marriage Act and Divorce Act.—The ground under the Hindu Marriage Act, 1955
and thespecial Marriage Act, 1954 is substantially the same, notwithstanding some minor difference in the wording
of the clauses.

Whereas the wordings in the Divorce Act, 1869 run as under—

Clause (vi) of section 10 of the Act—

respondent has not heard of as being alive for a period of 7 years or more by those persons who would naturally have
heard of the respondent if the respondent had been alive.
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Chapter VII FAULT GROUNDS OF DIVORCE

As has been seen earlier, under section 108 of the Indian Evidence Act, 1872, 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 normally heard from him or about him
had he been alive. The burden of proving that such a person is not dead but alive lies on him who affirms it. The
question that becomes important in matrimonial law is: whether the other spouse on the basis of presumption of
death can assume that he or she has become a widower or widow and therefore marriage stands dissolved. And,
on this assumption, whether he or she can contract a second marriage. One can do so only at his own risk. If after
some time the missing spouse re-appears, whether the validity of second marriage can be maintained. The answer
is in the negative. Not merely the second marriage will not be valid, the spouse can also be prosecuted for bigamy.
To avoid the risk of missing spouse re-appearing on the scene rendering the second marriage void, clause (vii) of
sub-section (1) of section 13 provides that a petitioner may obtain a decree of dissolution of marriage on this
ground. Once the marriage is dissolved the petitioner is free to marry again and even if the missing spouse returns
the next day of the passing of the decree or before the second wedding, he can do nothing. The absence of the
respondent for seven years without his whereabouts being known by his near relatives and friends who would have
naturally heard of him is a ground for divorce. Thus freed, the petitioner may marry again and have children of
unquestioned legitimacy. However, if the second marriage is performed on the basis of presumption of death
without getting a decree of divorce, no person other than the missing spouse can question the validity of the second
marriage1.

Since some miscarriage of justice is likely to result in a petition for divorce on the basis of presumption of death, the
High Court Rules provide some safeguards.

Muslim Law.—Under the Dissolution of Muslim Marriage Act, 1939 the period is four years. This period is based on
classical Maliki law. Under Maliki law if the whereabouts of the husband were not known for a period of 4 years, the
judge could pronounce a divorce. The judge was required to postpone the consideration of wife’s petition for a
period of another four years. Now clause (i) of section 2 of the Act, lays down a uniform provision. The clause does
not use the words that the whereabouts of the husband are not known to those persons who would have naturally
known, had he been alive. But section 3 of the Act lays down that in a suit of divorce on this ground: (a) the names
and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on
the date of the filing of the complaint should be stated therein, (and if paternal uncle and brother of the husband are
alive they should be cited as parties even if they are not heirs), (b) notice of the suit shall be served on such
persons, and (c) such persons shall have the right to be heard in the suit. A decree passed on this ground shall not
take affect for a period of six months from the date of such decree, and if the husband appears either in person or
through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal
duties, the court shall set aside the decree.

Obviously, it is not necessary to prove death. If the above procedure is gone into that is enough.

The unique aspect of the Muslim law provision is that the decree does not come into effect immediately on its
passing. It remains suspended for a period of six months. During this period of six months, the marriage will subsist,
and the wife cannot remarry. The decree will become effective after the expiry of the period. If the husband
reappears, the decree will stand cancelled.

It is obvious that this cumbersome procedure of making husband’s relation as parties and then keeping the decree
in suspense is made with a view to ensure that in his case the husband is alive, his whereabout may still be traced
and he himself is given an opportunity to reappear. Under the Hindu Marriage Act, 1955 or thespecial Marriage Act,
1954 no such procedure is laid down.

Burden of Proof
The burden of proof that the whereabout of the respondent are not known for the requisite period is on the petitioner
under all the matrimonial laws.
SEVEN YEARS’ IMPRISONMENT

Except under Hindu law and the Divorce Act, 1869 where seven years’ imprisonment is neither a ground for divorce
nor for judicial separation, under all other Indian matrimonial statutes it is a ground for divorce. Under thespecial
Marriage Act, 1954, it is both a ground for judicial separation and divorce, while under the Dissolution of Muslim
Marriage Act, 1939 and the Parsi Marriage and Divorce Act, 1936, it is ground of divorce. The wordings and
requirements of this ground under these statutes are slightly different.
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Chapter VII FAULT GROUNDS OF DIVORCE

Special Marriage Act.—Clause (c) of sub-section (1) of section 27 of the Special Marriage Act, 1954, which
contains the ground lays down that a spouse may petition for divorce on the ground that the other spouse—

is undergoing a sentence of imprisonment for seven years for an offence as defined under the Indian Penal Code (45 of
1860).

Parsi Marriage and Divorce Act.—Clause (f) of section 32 of the Parsi Marriage and Divorce Act, 1936, which lays
down the ground provides that a spouse may sue the other for divorce on the ground—

that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined under the
Indian Penal Code (45 of 1860):
Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone
at least one year’s imprisonment out of the said period.

Dissolution of Muslim Marriage Act.—Clause (iii) of section 2 of the Dissolution of Muslim Marriage Act, 1939,
which contains this ground for divorce runs:—

that the husband has been sentenced to imprisonment for a period of seven years or upwards.

This ground should be read with proviso (a) to section 2 of the Act which lays down that:

no decree shall be passed on ground (iii) until the sentence has become final.

Rationale.—The rationale behind this provision is that like desertion (which may be of two years or of indefinite
duration) the cohabitation stands disrupted for seven years, besides one being dubbed as a spouse of a prisoner.
One may or may not stand the seven years’ separation, but one may find the agony of a prisoner’s wife or husband
too hard to withstand. Thus, if a spouse finds either or both difficult to suffer, he or she may seek divorce.

While under the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 the other spouse must
have been sentenced to a term of imprisonment of seven years for an offence under the Indian Penal Code, there is
no such qualification under the Dissolution of Muslim Marriage Act, 1939— sentence must for a period of seven
years, it may be under any law, though as the word “sentence” indicates, it must be a sentence passed by a
criminal court. Therefore, a preventive detention or detention as prisoner of war, even if for a period of seven years,
would not be the type sentence stipulated under this clause. But the Act requires that it should be a final sentence.
A sentence will be final when it is no longer open to challenge in appeal or revision.

Section 40 of the Indian Penal Code, 1860 defines “offence” as a thing punishable by the Code.

The minimum limit of sentence is seven years term. But suppose a person is sentenced to a term of imprisonment
for six years and a fine of Rs. 50,000. In case he fails to pay the fine he would be required to undergo a further term
of imprisonment for one year. Suppose he fails to pay the fine, and therefore required to undergo the total sentence
for a period of seven years. It seems that then the case will be covered under this clause. Similarly, if a person is
sentenced for a term of imprisonment for seven years’ under any other statute, then if the offence falls within the
definition of “offence” under section 40 of the Indian Penal Code, 1860, the case will be covered under this clause.

Parsi Law: Must have undergone at least one year’s imprisonment.—Under the Parsi Marriage and Divorce
Act, 1936, a suit for divorce on the ground of seven years’ term of imprisonment can be filed only if the defendant
had undergone at least one year’s imprisonment prior to the filing of the suit.

PARSI LAW: NON-RESUMPTION OF MARITAL INTERCOURSE AFTER AN

ORDER FOR SEPARATE MAINTENANCE HAS BEEN PASSED FOR A
PERIOD OF TWO YEARS
Under Parsi law, non-resumption of marital intercourse after an order of separate maintenance for a period of two
years by the party against whom such an order is passed entitles the other party to a decree of divorce1. The Parsi
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Chapter VII FAULT GROUNDS OF DIVORCE

law conceives it essentially as a fault ground and therefore only the innocent party, i.e., the party who has obtained
the decree or order, can sue for divorce.

Clause (b) of section 32 of the Parsi Marriage and Divorce Act, 1936 before the amendment of 1988 which contains
this ground lays down that a spouse may sue the other for divorce on the ground—

that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against
the defendant by a magistrate awarding separate maintenance to the plaintiff, and the parties have not had partial
intercourse for three years or more since such decree or order.

The amending Act has re-modelled the clause thus:

That an order has been passed against the defendant by a magistrate awarding separate maintenance to the plaintiff, and
the parties have not had marital intercourse for two years or more since such order.

Under the clause basis for divorce is:

Non-resumption of marital intercourse for a period of two years after an order for maintenance is passed by a Magistrate.

“The Magistrate’s order” contemplated under the clause is the order of maintenance, interim maintenance and
expenses on proceedings passed under section 125 of the Code of Criminal Procedure, 1973.

The clause lays down that there should be non-resumption of “marital intercourse” and not of cohabitation. It is
submitted that if parties resume cohabitation, (which ordinarily includes marital intercourse, but may not in a given
case, such as on account of advance age), the ground will not be available. After the resumption of cohabitation
within two years, the spouse resuming cohabitation, cannot say that though he resumed cohabitation yet, since no
marital intercourse took place thereafter, the ground was still available to him. On the other hand, it seems this
clause does not contemplate resumption of cohabitation fully. Even if parties resume marital intercourse (any sexual
intercourse between a married couple is always a marital intercourse) though not cohabitation (i.e., they do not live
together), the ground would cease to be available.

It is a simple ground in the sense that once non-resumption of marital intercourse for a period of two years or more
is established, divorce would follow as a matter of course. The court will have no alternative but to pass a decree
dissolving the marriage.

This is also a ground for judicial separation under the Parsi law.

The burden of proof that resumption of cohabitation has not taken place for a period of one year is on the petitioner.

ADULTERY, FORNICATION, BIGAMY, RAPE OR UNNATURAL OFFENCE:

RESIDUARY GROUND OF DIVORCE

Muslim Law
The Dissolution of Muslim Marriages Act, 1939 in its section 2(ix) contains a residuary clause for divorce. This
clause lays down that the wife may sue for divorce—

on any other ground which is recognized as valid for the dissolution of marriage under Muslim law.

The Dissolution of Muslim Marriages Act, 1939 was not stipulated as a complete code of Divorce for Women. In its
eight clauses section 2 provides certain specific grounds on which a Muslim wife can sue her husband. The other
modes of divorce available to a Muslim wife under Muslim law are not affected by the Act and this is what this
clause lays down. Thus a Muslim wife can still obtain divorce by lian, (which has already been discussed), Khula,
mubaart and talaq-i-tafweez. (which would be discussed later on).
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Chapter VII FAULT GROUNDS OF DIVORCE

Parsi Law
Clause (d) of section 32, Parsi Marriage and Divorce Act, 1936, which contains this ground lays down that a spouse
may sue the other for divorce on the ground—

that defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence:
Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the plaintiff
came to know of the fact.

Bigamy, which has already been discussed, is a ground of void marriage under all matrimonial causes in India,
except Muslim law which recognizes polygamy (though not polyandry). Adultery, has also been discussed earlier, is
a ground of divorce under the Dissolution of Muslim Marriage Act, 1939, Special Marriage Act, 1954, Hindu
Marriage Act, 1955 and the Divorce Act, 1869. “Fornication” is also a ground of divorce. Under Parsi law it is
defined as “voluntary sexual intercourse between two unmarried persons or two persons not married to each other.

Rape and unnatural offence would be discussed in the subsequent pages of this chapter when these would be
discussed as wife’s additional grounds of divorce under other statutes.

Wilful Refusal to Consummate Marriage

This is a ground which has been provided in the amended Divorce Act, 1869. This provision has provided a ground
of divorce in the event when the respondent wilfully refuses to consummate marriage and the marriage is therefore,
not consummated. This ground provides for two things.First ingredient is wilful refusal, i.e., intention not to
consummate marriage ought to be there, secondly as a consequence of this intention the marriage remains
unconsummated. As one may recall, impotency is a ground of void marriage under this Act. The instant provision
envisages a situation where purposefully, willingly the respondent does not consummate marriage. Whereas in
impotency there is an incapacity to consummate the marriage.

Non-compliance of decree of Restitution of Conjugal Rights for a period of two years or upwards—

This ground has been made a fault ground under the Divorce Act, 1869 by virtue of the Act 51 of 2001. Unlike a separate
provision with same effect underhindu Marriage Act, 1955 which we normally call as grounds of or rather mode of
determining what constitutes irretrievable breakdown of marriage, this provision is part of fault grounds, thereby, the
controversy that whether bars to matrimonial relief apply to this provision or not, does not arise. If it is a fault ground,
obviously, bars would apply.

WIFE’S GROUNDS OF DIVORCE

Except the Parsi Marriage and Divorce Act, 1936, all other systems of Indian personal laws, recognize some
separate grounds of divorce for wife. Most of them are by way of protective discrimination in favour of wife. The
Hindu Marriage Act, 1955 recognizes four additional grounds on which the wife alone can sue for divorce1. The
Special Marriage Act, 1954, recognizes two additional grounds of divorce2. Since under Muslim law recognition of
unilateral divorce gives very wide power of divorce to the husband and since there were hardly any grounds on
which a wife could seek divorce, the Dissolution of Muslim Marriages Act, 1939 lays down nine grounds of divorce
on which wife alone can sue for divorce3. Under the Hindu Marriage Act, 1955,Special Marriage Act, 1954 and the
Parsi Marriage and Divorce Act, 1936, the wife can sue for divorce on all those grounds on which husband can sue
for divorce. Under the former two statutes wife’s ground of divorce are additional grounds of divorce, on which she
alone can sue for divorce and husband cannot sue her for divorce on those grounds. The Parsi Marriage and
Divorce Act, 1936 recognizes the principle of equality and lays down grounds of divorce of which either spouse
(husband or wife) can sue for divorce4. It goes to the extent of recognizing unnatural offences (which is wife’s
ground of divorce under the Hindu Marriage Act, 1955 andspecial Marriage Act, 1954 as ground of divorce both for
the husband and the wife5). It is only the Divorce Act, 1869 which discriminates against the wife6. The fact of the
matter is that it is a statute based on the state of English Matrimonial law prevailing then. Following the Matrimonial
Causes, Act, 1857, it recognizes only one ground on which husband can sue the wife, namely, wife’s adultery. But
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Chapter VII FAULT GROUNDS OF DIVORCE

wife cannot sue the husband on husband’s bare adultery. It has to be ‘adultery plus’—adultery alongwith some or
other matrimonial misconduct7.

It should be noticed that the additional grounds on which wife alone can sue are also fault grounds under all the
matrimonial statutes.

Hindu Marriage Act

Section 13(2) of the Hindu Marriage Act, 1955, which contains four additional grounds of divorce on which wife
alone can sue for divorce, runs:

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married
again before such commencement or that any other wife of the husband married before such commencement
was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1956), or in a proceeding
under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since
the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and
she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Special Marriage Act

Section 27(1A) of the Special Marriage Act 1954, which contains two additional grounds of divorce on which wife
alone can sue runs:

A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty or rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956(78 of 1976), or in a proceeding
under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife not withstanding that she was living apart and that since
the passing of such decree or order, cohabitation between the parties has not been resumed for one year or
upwards.

Dissolution of Muslim Marriage Act

Section 2 of the Dissolution of Muslim Marriage Act, 1939 contains nine grounds on which a Muslim wife can sue
for divorce. The section has been quoted earlier in this chapter; reference may be made to the same. Since most of
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Chapter VII FAULT GROUNDS OF DIVORCE

the grounds are the same which are available to either spouse under most of the other matrimonial statutes, these
grounds have been discussed earlier in this Chapter, and where there is variation of these grounds under Muslim
law, it has been pointed it out. The grounds contained in clauses (ii) and (iv)—”that the husband has neglected or
has failed to provide for her maintenance for a period of two years”, and “that the husband has failed to perform,
without reasonable cause his marital obligations for a period of three years”—have been discussed along with
“desertion”.

Apostasy, which is ground of divorce under Muslim law, and its modification as contained in section 4 of the
Dissolution of Muslim Marriage Act, 1939 has been discussed under the head “conversion” which is a ground of
divorce under the Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce Act, 1936 also.

Similarly, pre-marriage impotency which is ground of divorce under Clause (v) of section 2 of the Act, has been
discussed in the Chapter III on nullity under the head “impotency”. Under the Special Marriage Act, 1954it is a
ground of void marriage and under Hindu Marriage Act, 1955 it is a ground of voidable marriage. In this same
manner other grounds of divorce which are common under the other matrimonial heads have been discussed along
with each of these grounds.

Clause (vii) of section 2 of the Dissolution of Muslim Marriage Act, 1939 contains a typical Muslim Matrimonial law
notion of “option of puberty” and “repudiation of marriage” and these have been discussed under the last head in
Chapter III on “Nullity of Marriage”.

Cruelty as contained in clause (vii) of section 2 of the Act deals with some typical Muslim law notions of cruelty, and
the same have been discussed in this Chapter under the head “Cruelty”.

In sum, we have discussed all these grounds earlier in this Chapter.

Divorce Act
Sub-section (2) of section 10 of the Divorce Act, 1869 after Indian Divorce (Amendment) Act, 2001 (51 of 2001) lays
down the grounds on which wife can sue for divorce, runs:

A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Parsi Law
Under Parsi Law, rape and unnatural offences are ground of divorce for both husband and wife1.

Hindu Law: Pre-Act Polygamous Marriage

This is obvious a ground of divorce only under the Hindu Marriage Act, 1955 and after four decades of it being in
force, the ground is of no practical significance. There will hardly be any Hindu wife alive to whom this ground would
be available.

This clause under the Hindu Marriage Act is a natural corollary to the introduction of monogamy among Hindus.

Under this clause any wife1 of the polygamously married husband (all the polygamous marriages should have taken
place before the Act came into force) may file a petition for divorce provided at the time of the filing of the petition
for divorce, at least one more wife (i.e. other than the petitioner wife) is alive. It is obvious that the ground is
available when both the polygamous marriages are valid.

Under this clause one of the consequence may be that a polygamously married husband may lose both or all his
wives, since any wife may file a petition if she can show that at the time of the filing of the petition one more wife is
alive. Thus, where there are two wives, both may sue for divorce. Thus, in Venkatamma v. Patel Venkataswamy
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Chapter VII FAULT GROUNDS OF DIVORCE

Reddy2, the first wife sued her husband for divorce, while the petition was pending the husband divorced his second
wife, and averred in reply to the petition of the wife that since he was left only with one wife, the petition should be
dismissed. The court rejected the plea.

Since this ground is a corollary to the introduction of monogamy under Hindu law, the husband cannot plead any
conduct of the wife to deprive her of this right. Thus a wife of polygamous marriage cannot be deprived of her right
of divorce on the ground that prior to the commencement of the Act, she entered into a compromise with her
husband to continue to live with him; nor can a husband take the plea that her conduct or disability is a bar to her
claim of divorce. Similarly, the fact that the wife knew of the second marriage of her husband when it was performed
could not be pleaded as an estoppel against her in her petition for divorce on this ground3. It is submitted that since
the policy of law is to enforce monogamy, section 23 of the Hindu Marriage Act, 1955 cannot be marshalled to bar
wife’s petition for divorce4. However, it has been held that a petition may be defeated on the ground of improper
delay5.

The doctrine of condonation is not applicable to this clause1. Thus in Deepo v. Kehar Singh,2 on wife’s petition for
divorce under this clause, the husband pleaded that by living with him for several years with his second wife, she
had condoned his second marriage. The court rejected his plea and observed that there was no scope for the
application of the doctrine of condonation.

Rape, Sodomy and Bestiality

Rape, sodomy and bestiality are grounds of divorce under which wife alone can sue for divorce under the Hindu
Marriage Act, 1955,3Special Marriage Act, 1954,4 and the Indian Divorce Act, 1869.5Fornication, rape and unnatural
offence are a ground of divorce both for the husband and wife under the Parsi Marriage and Divorce Act, 19366. It is
interesting to note that unnatural offences (homosexuality and bestiality) are laid down as ground of divorce under
the Parsi Marriage and Divorce Act, 1936 while under other statutes these are grounds of divorce for the wife alone.
Under clause (d) of section 32 of the Parsi Marriage and Divorce Act, 1936 “rape” is also mentioned as a ground of
divorce on which either husband and wife can sue for divorce. It is submitted that since rape is an offence where
woman is involved,i.e., one can rape a woman; one cannot rape a man, even under the Parsi law, this ground will
be available only to the wife. In other words, wife can sue her husband for divorce on the ground that he is guilty of
rape. It cannot be the other way round.

The language of the clause under the Hindu Marriage Act, 1955, thespecial Marriage Act, 1954 and the Indian
Divorce Act, 1869 is identical. The husband had since the solemnization of marriage, been “guilty of rape, sodomy
or bestiality”. Under the Parsi Marriage and Divorce Act, 1936, the clause lays down that any married person may
sue for divorce on the ground “that the defendant has since marriage committed... rape or unnatural offence.”

Criminal offence of rape.—Rape is a criminal offence. It is defined section 375 of the Indian Penal Code, 1860 as
under:

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the five following descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested in
fear of death, or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she
believes that is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or unwholesome substances, she is unable to
understand the nature of consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Rape is an offence for which a punishment with imprisonment for life and a fine may be inflicted.

Raping his own wife.—If the wife is not under the age of fifteen years, a husband is not guilty of raping his own
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wife1. Under English law, it is an established view that a man cannot be held to be guilty as a principal in the first
degree of rape upon his own wife2. It is based on the notion that once a woman marries to a man she cannot
withdraw her consent to cohabitation. The Indian Penal Code specifically lays down that if wife is not under fifteen
years, it is not a rape. But if the wife is below the age of fifteen years, and the husband forces sexual intercourse on
her, he would be guilty of rape and his wife can sue him for divorce under this clause.

Where parties are living separately either under an agreement or under a decree of the court, if the husband forces
sexual intercourse on his wife, he would be guilty of rape, and wife can sue him for divorce3.

Raping another woman.—If a person rapes a woman who is not his wife, then he is guilty of rape and his wife can
sue for divorce. It is immaterial as to whether the woman is related to him or not. The age of the woman raped is
also immaterial.

Attempt to commit rape.—All the Indian matrimonial statutes make rape— husband is guilty of rape—as a ground
of divorce, and mere attempt to rape will not be sufficient and will not be covered under the clause. English law
takes a different view4. It is submitted that attempt to rape would be cruelty to wife and she can sue for divorce on
that basis under the Indian Matrimonial statutes.

Rape and adultery.—Where a married woman is raped, her husband cannot sue her for divorce on any ground.
Since rape is not adultery—adultery essentially being a consensual sexual intercourse—her husband cannot sue
her for adultery5. The ground is rape and the ground is available to the wife. Thus when a married person rapes a
woman, he is guilty of rape and his wife can sue him for divorce. The husband cannot be said to be guilty of
adultery, since adultery is a criminal offence and a ground of divorce when both parties consent to sexual
intercourse. In the case of rape, woman is certainly not a consenting party, though criminal intention to have sexual
intercourse on the part of the husband is present. That cannot make it a consensual sexual intercourse. Thus it
would be wrong to say that when a married man rapes a woman, the wife can sue her husband for divorce either for
rape or adultery or on both grounds1. If this were so, there was no need to make rape as a separate ground.

Burden of proof.—The wife who sues her husband for divorce on the ground of rape must establish that her
husband committed the offence. Burden of proof is on her. The question is: when a husband is convicted for rape
by a criminal court, is that the sufficient proof? Under Civil Evidence Act, 1968, a UK statute, this proof is sufficient.
But, it seems, it is not so under Indian law. The wife has to prove rape in her petition independently of criminal
court’s conviction, though her husband’s conviction by the criminal court will be an important piece of evidence.

Unnatural offences: Homosexuality, sodomy and bestiality.—The Hindu Marriage Act, 19552 the Special
Marriage Act, 1954,3the Divorce Act, 18694use the expressions “sodomy” and “bestiality”, while the Parsi Marriage
and Divorce Act, 1936, uses the expression “unnatural offence”5.

The Indian Penal Code, 1860 does not directly use the expression “sodomy” and “bestiality” but uses the
expression “unnatural offences”. Section 377 Indian Penal Code, 1860 runs:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished
with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this
section.

This section makes it an offence to indulge in unnatural carnal intercourse. The offence would be committed when
there is a penetration. If there is no penetration it would not be an offence, though under matrimonial law, it may
amount to cruelty6.

Homosexuality and sodomy.—As the section 377 is worded—”carnal intercourse against the order of nature with
a man, woman or animal”—it would include homosexuality. Thus where two men or women indulge in carnal
intercourse against the order of nature, they would be guilty of unnatural offence. Carnal intercourse between two
persons of the same sex is homosexuality. Since the Parsi Marriage and Divorce Act, 1936, uses the words
“unnatural offence, homosexuality would be included. But the other three statutes do not use the expression
“unnatural offence”, but use the expression “sodomy” and “bestiality”; thus homosexuality will not be included in
sodomy. Sodomy is the penetration of male organ into the anus of another person male or female.

Sodomy is carnal intercourse in anus, bestiality is carnal intercourse with animals, which will include penetration of
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male organ into the uterus or anus of any animal, other than human beings. It would also include the penetration of
a male organ of any animal into the anus or uterus of a woman, or anus of a human male.

Indian precedents on the subject are not much. The question has come before English Courts. In C. v. C.1, wherein
the husband committed sodomy on his wife without her consent, it was held that the wife was entitled to a decree of
divorce on the ground that husband was guilty of sodomy2. T. v. T.3, is an interesting case, wherein the husband
and wife were aged 24 and 18 respectively. The husband told his wife that she should permit him to have sexual
intercourse in her anus, as it was the normal thing between spouses and several of his friends were engaged in
doing so. He also said that it was wife’s duty to submit to his request. The wife agreed and allowed her husband to
use her anus on three occasions. The wife hated it but allowed her husband to do so as she did not consider it
wrong. The husband also honestly believed that what he demanded was not wrong but natural. On wife’s petition
for divorce, the Court, allowing the same, observed that wife’s consent in permitting her husband to have sodomy
with her was not real consent, as real consent required the knowledge of right and wrong and knowledge of relevant
factors. Obviously the wife did not understand the implication of the act in that sense, she merely yielded to her
husband’s persuasion. It was observed that it did not matter that she did not protest or that the husband honestly
believed that it was the normal thing among married people.

Thus whether a husband commit sodomy on another female or male, or whether he commits it on his own wife, the
ground will be available to the wife4.

It is obvious that when a husband requests his wife to permit sodomy with her and she declines the request and
does not submit, and the husband leaves the matter at that, he is not guilty of sodomy5. In K.V. Revanna v.
Suseelamma, 6the court said that mere attempt by the husband to perform such a disgusting act will amount to
cruelty to wife and wife may sue her husband for divorce on the ground of cruelty. But, it is submitted, it would not
amount to rape, if he does not succeed in his attempt.

Consent and condonation.—English law takes the view that if a wife consent (in real sense) to sodomy, it will bar
her petition for divorce. In Bampton v. Bampton1, it was held that consent or condonation absolutely bars wife’s
petition for divorce on the ground of her husband’s sodomy on her.

Under section 377 of the Indian Penal Code, 1860 consent is wholly immaterial and offence of sodomy is
committed, irrespective of the fact whether the other party consented or not. Under section 23 of thehindu Marriage
Act, 1955, or section 34 of thespecial Marriage Act, 1954, condonation does not apply to this ground. It is submitted
that under the Indian matrimonial laws, consent of the wife, too, would be immaterial.

Bestiality.—Bestiality is a carnal intercourse with an animal (other than human beings), whether it is done in the
uterus or anus of the animal. Once it is established, the wife is entitled to divorce.

Non-resumption of Cohabitation for One year after an Order of Maintenance

This is also a wife’s additional ground on which she alone can sue her husband. This ground was introduced in the
Hindu Marriage Act, 1955 and the Special Marriages Act, 1954 by the Marriage Laws (Amendment) Act, 1976. This
ground is available to the wife under the following two situations:—
(a) When a wife obtains a decree for her maintenance against her husband in a suit filed by her under section
18 of the Hindu Adoptions and Maintenance Act, 1956 [it stipulates situations where wife can live
separately from her husband and yet can claim maintenance; most of these situations have been stated in
section 18(2) of the Act] and resumption of cohabitation does not take place even after the lapse of one
year from the decree, then wife can sue her husband for divorce.
(b) when a wife obtains an order of maintenance in her proceedings initiated under section 125 of the Code of
Criminal Procedure, 1973 cohabitation is not resumed over a year or more after the date of the order, the
wife can sue for divorce.

Under (a) the parties have to be Hindus, even if they are married under the Special Marriage Act, 1954; otherwise
this provision under the Special Marriage Act, 1954 will not be applicable. Under (b), again parties are to be Hindu if
wife sues for divorce under the Hindu Marriage Act, 1955. They may be of any community if they have married
under thespecial Marriage Act, 1954.

Under both the statutes, it is contemplated as a ground of divorce for the wife alone. The fact of the matter is in
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Chapter VII FAULT GROUNDS OF DIVORCE

situations like these, marriage stands broken down irretrievably and thus divorce should have been permitted to
either spouse. But here it is stipulated as a fault ground.

The ground is available if it shows that a decree or order for maintenance has been made and cohabitation has not
resumed for a period of one year or more. Of course, assumption is that the wife is living separate from the
husband after the passing of the decree.2

Repudiation of Marriage
The Marriages Laws (Amendment) Act, 1976 introduced a new ground of divorce under Hindu law, namely, where a
girl is married below the age of 15 and she repudiates the marriage after attaining the age 15, but before attaining
the age 18, she can sue for divorce on that basis. The rationale of this ground is that despite the fact that minimum
age of marriage both for boys and girls is laid down in the Act, non-age does not render the marriage invalid, and
marriage remains valid. It is still very common among Hindus that girls below the age of 15 are married. An
opportunity is given to them to get out of the union if they considering it irksome, and have repudiated it before
attaining the age of 18 years. Under the clause it is immaterial whether the marriage has or has not been
consummated.

In Savitri Bai v. Sitaram1, the wife petitioned for dissolution of her marriage on the ground that when she was
married she was below the age of fifteen and she repudiated the marriage before she attained the age of eighteen
years. For proving the age of the girl, the horoscope of the girl and oral testimony of the father was given. The trial
court felt that the wife’s testimony, was not beyond reasonable doubt. The Madhya Pradesh High Court observed
that in the absence of matriculation certificate the testimony of parents and horoscope of the wife are the only
source by which age can be established, since the ground can be established by preponderance of probabilities.

Under Muslim law, the provision has existed from the beginning. As to the Muslim wife’s right to divorce on this
ground, the law has been codified by the Dissolution of Muslim Marriages Act, 1939. Under Muslim law it is
essential to show that marriage has not been consummated. This provision has already been discussed in Chapter
III of this work, “Nullity of Marriage”.

For Divorce Petition, Provision of section 14 of the Hindu Marriage Act is

Mandatory
For the petition for divorce section 14 of the Hindu Marriage Act, 1955 is mandatory not directory. It was also held
that the petition for divorce should not be entertained unless one year had passed from the date of marriage.2
UNILATERAL DIVORCE

MUSLIM LAW

Either retain them with humanity or dismiss them with kindness.

The thing which is lawful but disliked by God is divorce. Talak with Allah, is the most detestable of all things.3

Historical.—In pre-Islamic Arabia, divorce in its most uninhibited and unrestrained form prevailed. A man could
divorce his wife at any time, and without any reason, at his whim or caprice. In short, for the severance of marital tie
no restrictions of any kind existed to prevent the husband from exercising his unilateral right of divorcing his wife.
That was the obvious reason for the Prophet for making the above pronouncement. Yet, such were the prevailing
social conditions that the Prophet has to recognize the unilateral right of the husband to divorce his wife1. Only thing
that he could do was to hedge the husband unilateral and uninhibited power to divorce with some regulations.

Despite the strong condemnation of this arbitrary, unreasonable and capricious exercise of the right to dissolve the
marriage and despite his calling it as a spiritual offence and placing it under divine displeasure the only thing that
could be done was to lay down some moral and legal enjoinment in the modalities of divorce. The fact of the matter
is that even some Ulemas and Khaliphas used this right with impunity. The provisions for dower, irrevocability of
divorce, and restrictions on remarriage created some semblance of regulation of this unilateral power of divorce, but
that was all.
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The present position in India, is that a Muslim husband has the power to pronounce divorce (talak) on his wife,
Muslim or non-Muslim, Kitabia or fire worshipper, on mere whim or caprice, without any reason, at his will and
pleasure, without or even against the consent of his wife, and in her pressure as well as in her absence. In sum,
despite the enjoinment of the Prophet “With Allah, the most detestable of all permitted things is divorce”2, a Muslim
in India still possesses the power of divorcing his wife in most uninhibited form. Muslim law places divorce in the
category of permissible things, and divorce is considered to be the most despicable of the permissible things. Yet
this most despicable thing still exists most captiously in India, and even today talak is the largest aspect of Muslim
matrimonial law.

Meaning of Talak.—Talak in its primitive sense means dismission. In its literal meaning, it means “setting free”,
“letting loose”, or taking off any “ties or restraint”. In Muslim law it means freedom from the bondage of marriage
and not from any other bondage. In legal sense it means dissolution of marriage by using appropriate words. In
other words, talak is repudiation of marriage by the husband in accordance with the procedure laid down by law. In
Muslim law, this form has acquired a definite meaning and it means dissolution of marriage effected by the husband
according to certain formula recognized by law.

The following verse is in support of husband’s authority to pronounce unilateral divorce (talak) is often cited: “Men
are maintainers of women, because Allah has made some of them to excel others and because they spend out of
their property (on their maintenance and dower”3). Abdur Rahim says that with a view to regulating the matrimonial
relations, Muslim law allows predominant position to be the husband “because, generally speaking, he is mentally
and physically superior of the two; and some theorists would treat the dower payable to the wife as consideration
for the alienation of her matrimonial freedom”4. The protagonists of equality of sexes will not agree with Abdur
Rahim, but that seems to be an adequate explanation for the recognition of unilateral divorce in Muslim law. When
the husband exercises the right of pronouncing divorce on his wife, technically, this, is known as talak. The most
remarkable features of Muslim law of talak is that all the schools of the Sunnis and the Shias recognize it: they differ
only in some details.

In Muslim world, so widespread has been the talak that even the Imams practised it1. The absolute power of a
Muslim husband of divorcing his wife unilaterally, without any cause, without assigning any reason, literally at his
whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the
wife, is recognized in modern India. All that is necessary is that the husband should pronounce talak; how he does
it, when he does it, or in what manner he does it, is not very material. In Mohammad Haneefa v. Puthumal Beevi2,
the judicial conscience of Khalid, J., was disturbed at this, and he dubbed it as a “monstrosity”.

Among the Sunnis, talak may be express, implied, contingent constructive, or even, delegated. The Shias recognize
only the express and the delegated talak.

Express Divorce and its Forms

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express
talak falls into two categories:
(i) Talak-ul-sunna (approved), and
(ii) Talak-ul-badai or talak-ul-bidaat or talak-ul-bida (unapproved).

The talak-ul-sunna has two forms:

(i) ahsan, and
(ii) hasan.

The former is most approved and the latter is approved.

The talak-ul-badai, also has two forms:

(i) the triple divorce or three declarations at one time, and
(ii) one irrevocable declaration.
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The basic distinction between the talak-ul-sunna and, talak-ul-badai is, that in the former case the pronouncement
of divorce is revocable while in the latter, it is irrevocable. This seems to be the reason why the talak-ul-sunna is
considered to be approved divorce, and the talak-ul-badai as unapproved.

Ahsan talak.—The ahsan talak consists of a single pronouncement of divorce made in a period of tuhr (purity, i.e.,
the period between two menstruations), or, at any time, if the wife is free from menstruation, followed by abstinence
from sexual intercourse during the period of iddat. The requirement that pronouncement of talak should be made
during a period of tuhr applies only to oral divorce it does not apply to talak in writing. Similarly, this requirement is
not applicable when the wife has passed the age of menstruation or the parties have been away from each other for
a long time, or, when marriage has not been consummated.

The advantage of this form is that divorce can be revoked at any time before the completion of the period of idda;
thus hasty, thoughtless, divorce can be prevented. The revocation may be effected expressly or impliedly. Thus, if,
before the completion of the period of idda, the husband resumes cohabitation with his wife, or when he says to her,
“I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of idda also
results in the revocation of divorce. It is this aspect of ahsan talak, viz., its revocability, which makes it the most
proper divorce. The Radd-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt
to be misled and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which
one is certain to feel ashamed afterwards”1. In this form, the parties are free to remarry subsequently at any time.

Hasan talak. —In the hasan talak, the husband is required to pronounce the formula of talak (i.e., the utterance of
the words, “I divorce thee”) three times during three successive tuhrs. If the wife has crossed the age of
menstruation, then the pronouncement of talak may be made after the interval of a month or thirty days between the
successive pronouncement. When the last pronouncement is made, the talak becomes final and irrevocable. It is
necessary that each of the three pronouncements should be made at a time when no intercourse has taken place
during that period of tuhr. For instance, W, a wife, is having her period of purity and no sexual intercourse has taken
place. At this time, her husband H, pronounce talak on her. This is first pronouncement by express words. Then,
again, when the wife gets the next period of purity, and before he indulges in sexual intercourse, H makes a
pronouncement of divorce on her. This is second pronouncement. Again when the wife enters her third period of
purity and before any intercourse takes place, H makes a pronouncement of divorce. This is third pronouncement.
The moment H utters the third pronouncement the marriage stands dissolved irrevocably, irrespective of iddat.

The significance of the hasan form of talak can be understood only in the background of the pre-Islamic Arabian
practice, under which pronouncement of divorce is one tuhr, followed by its revocation, and again, a
pronouncement followed by revocation, could go on endlessly, leading to misery, harassment and humiliation of
women. To put an end to this vicious practice the Prophet laid down that the divorce will become final and
irrevocable at the third pronouncement. To impose a further deterrent on this arbitrary practice, it was laid down that
the parties were not free to remarry unless the wife married another man who had actually consummated the
marriage and then divorced her. On the completion of idda, the woman could marry her former husband. This is a
penal provision meant to chastise the husband who repudiates his wife thoughtlessly. No thoughts were wasted on
the fact that is was a greater punishment and humiliation to the woman.

Talak-ul-bidda.—The Talak-ul-bidda came into vogue during the second century of Islam. Amir Ali relates the
historical background thus: “The Omayyid monarchs finding that the checks imposed by the Prophet on the facility
of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of
law and found...a loophole to effect their purpose1. The talak-ul-bidda has two forms 2: (i) the triple declaration of
talak made in a period of purity, either in one sentence, such as, “I divorce thee triply or thrice,” or in three such as,
“I divorce thee, I divorce thee, I divorce thee”. The moment the pronouncement is made, the marriage stands
dissolved irrevocably. (ii) The other form of talak-ul-bidda constitutes a single irrevocable pronouncement of divorce
made in a period of purity or even otherwise. This also results in the irrevocable dissolution of marriage3. The triple
pronouncement is not an essential part of the talak-ul-bidda; if the intention is clear, the divorce will take place.
Thus, if a husband says to his wife, “I had divorced thee in talak-ul-bidda or talak-ul-bain form”, that is enough and
an irrevocable divorce will result.

The talak-ul-bidda in either of its forms is not recognized by the Shias.

In this form remarriage can take place only if the wife undergoes an intermediate marriage just as in the case of the
hasan talak.

This form of divorce is condemned. It is considered heretical, because of its irrevocability. The talak-ul-bidda which
is “good in law though bad in theology” is the most common mode of divorce prevalent in India4.
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Recently, the Allahabad High Court has held that their form of talak is unconstitution. An appeal against this
judgment is pending in the Supreme Court.

Implied and Contingent Divorce

Sometimes the words used in the pronouncement of talak are not clear, for instance, when a husband says to his
wife, “I give up all relations and would have no connection of any sort with you”, or, “I have released thee from being
my wife”, in such cases divorce will be implied if the intention to divorce is proved. According to Amir Ali, “The word
talak in its different grammatical forms is regarded as express and other expressions which may be construed as
meaning repudiation of the marriage by the husband, but are also capable of other meanings, are regarded as
allusive. When express words are used no question can arise as to what was meant, but allusive words require
construction”5.

When a husband pronounces divorce so as to take effect on the happening of a future event, the talak is known as
contingent, and it becomes effective on the happening of the event.

The Shias do not recognize the implied and the contingent talak.

The case of Hamid Ali v. Imtiazan6, illustrates both the implied and the contingent talak. When the wife insisted on
going to her father’s house against the wishes of the husband, the husband said to his wife, “Thou art my cousin,
my paternal uncle’s daughter, if thou goest.” Despite this, the wife left for her father’s house. The words used by the
husband constitute implied divorce, while the wife’s going to her father’s house constitute the contingent event. The
Allahabad High Court held that it amounted to divorce, though the court overlooked that in Muslim law paternal
uncle’s daughter is not within the prohibited relationship. If talak is pronounced conditionally, or is made dependent
on the happening of a contingency not impossible in its nature, the talak will be effective on the happening of that
event. In Bachchoo Lal v. Mt. Bismilla1, the husband gave an undertaking in writing that he would pay her the
amount of maintenance within the specified period, and that, if he defaulted in making the payment, it would operate
as talak, on husband defaulting the Court held that the writing took effect as a valid talak2. But even among the
Sunnis the repudiation cannot be qualified with an option. Thus, if a husband says to his wife, “I have divorced thee
but I reserve to myself an option for three days,” the talak will be valid, but option will be void.

Delegated Divorce ( Talak-I-Tafweez)

Talak-i-tafweez.—Talak-I-Tafweez (This is the popular spelling, but Fyzee regards it as wrong and says that it
would be spelled as talak-i-tafwid) or delegated divorce is recognized among both the Sunnis and the Shias. The
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may
delegate the power, absolutely or conditionally, temporarily or permanently3. A permanent delegation of power is
revocable, but a temporary delegation of power is not. The delegation must be made distinctly in favour of the
person to whom the power is delegated, and the purpose of delegation must be clearly stated. This has been thus
illustrated by Amir Ali: if a husband says, “choose thyself” or “choose a repudiation”, and if the wife answers, “I
choose” or “I have chosen myself” or “I have chosen a talak”, it would be sufficient. But if he were merely to say,
“choose”, and the wife replies, “I have chosen,” this is not sufficient, and there is no talak.4

The power of talak may be delegated to the wife, and as Fyzee observes, “This form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any
court and is now beginning to be fairly common in India”5. This form of delegated divorce is usually stipulated in pre-
nuptial agreements. In Mohd. Khan v. Shahmali,6 under a pre-nuptial agreement, a husband, who was a Khana
Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his
leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s
house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid
exercise of the power of talak delegated to her.

Delegation of power to divorce may be made even in the post-marriage agreements between the husband and the
wife. Thus, where under an agreement it is stipulated that in the event of the husband failing to pay her
maintenance or taking a second wife, the wife will have the right of pronouncing divorce on herself, such an
agreement is valid, and such conditions are reasonable and not against public policy1. It should be noted that even
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on the happening of the contingency or event stipulated in the agreement, whether or not the power is to be
exercised, depends upon the wife. She may choose to exercise it or she may not. The happening of the event or
the contingency does not result in an automatic divorce 2. The power so delegated to the wife, either under a
premarriage or post-marriage agreement, is not revocable by the husband. The wife may exercise this power after
the husband has filed a suit for restitution of conjugal right and if she does so, it will result in a divorce3.

In the talak-i-tafweez, though it is the person to whom the power is delegated who exercises the power of divorcing,
the divorce in the eyes of the law is made by the husband. Thus, when a wife is delegated the power of divorce,
and in exercise of that power she pronounces the divorce, the power is exercised on behalf of the husband who had
delegated it to her, and therefore, in law it is a talak of the wife by the husband.

Constructive Divorce: Ilaand Zihar

Two forms of constructive divorce have existed in Muslim law, Ila and Zihar. According to Abdur Rahim, “In some
cases the conduct of the husband will have the effect of a repudiation, though he did not use the word talak or any
other expression with the intention of dissolving the marriage. This is when he swears that he will have nothing to
do with his wife and in pursuance of such oath abstains from her society for four months. The legal effect of such a
conduct would be a single irrevocable divorce4. This form of divorce is known as ila. The Shafis and the Shias hold
that this does not result in talak, but merely gives the wife the right of judicial divorce. According to the Ithana
Asharis, this form of divorce can be used only after the consummation of marriage. If the husband resumes
intercourse with his wife, or has retracted from it before the expiry of the period of four months, the ila does not take
effect and stands cancelled. If the husband asserts cancellation of the ila after four months, then the cancellation
will be valid only if the wife assents to it5.

Zihar, on the other hand, is an inchoate divorce. In this form, the husband expresses his dissatisfaction with his wife
by comparing her with the back of his mother, or sister, or any other woman within the degree of prohibited
relationship. In such a case the wife acquires a right to refuse cohabitation with her husband till he performs a
penance. If the husband refuses to perform the penance, the wife gets a right to judicial divorce. Among the Ithana
Asharis, the declaration of divorce in zihar form must be made before two competent witnesses during a period of
tuhr (the period of purity, i.e., when the wife is not in her menstruation course), sexual intercourse during that period
having not taken place. Tyabji remarks that zihar has hardly any significance so far as the law courts in India are
concerned; the words do not come naturally to Indian Muslim1.

Formalities of Talak
No school of the Sunnis prescribed any formalities for talak. On the other hand, the Shias insist that divorce must
be pronounced orally and in the presence of two competent witnesses. The specific formula of divorce must be
pronounced. It is interesting to note that the Shias do not require the presence of witnesses for marriage but insist
on the presence of two competent witnesses for divorce, while the Sunnis do not require any witnesses for divorce,
though insist on the presence of two competent witnesses at the time of marriage. The Sunnis permit divorce in
writing, too, but the Shias insist that talak should be oral, unless the husband is physically incapable of pronouncing
it orally. The Ithna Ashari also require that certain Arabic words must be used in the formula of divorce 2, though
mispronunciation is tolerated, and vernacular is permitted if the husband does not know Arabic language. Among
the Hanafis, the talak may be oral or in writing3, so long as the intention is clear, no specific form is necessary. Any
words may be used. Thus, the words like these: “Thou art divorced”, or “I have divorced thee”, are enough and will
result in the dissolution of marriage. When the words clearly denote talak, the intention of the husband is
inconsequential. Thus, when a man says to his wife, “I have divorced you”, either in her presence, or in her
absence, it means that the man has divorced his wife4. Not merely this, in the proceedings for maintenance, or in
the written statement in the wife’s suit for restitution of conjugal rights or in proceedings under section 125 of the
Code of Criminal Procedure, 1973, if the husband takes the plea that he had pronounced talak on his wife, that is
enough and results in divorce5. If the words used in the pronouncement of talak are not clear or ambiguous, then
the proof of intention is necessary. Thus if words like, “Thou art my cousin, my uncle’s daughter, if thou goest”6, or “I
give up all relations and will have no connection of any sort with you”7 are used, the proof of intention to divorce is
necessary8. It is not necessary that the talak should be pronounced in the presence of wife; nor a notice of divorce
is required1. It is also not necessary that it should be addressed to her2. But the wife must be named, if she is not
named, talak will not be valid3. Although for the validity of talak the presence of the wife is not necessary, for certain
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Chapter VII FAULT GROUNDS OF DIVORCE

purposes communication of talak is required. Since, on divorce, dower becomes payable and the wife has to
undergo the idda, the communication of talak is necessary4. The period of limitation for the purpose of recovery of
her deferred dower will start running only from the date when the communication of talak reaches her5. She can
also claim maintenance from her husband till such time the communication of talak reaches her6.

Talak in writing.—As has been stated earlier, the Sunnis recognize written talak which may be in two forms:
manifest talak and unusual talak. When the talaknama is properly written so as to be legible and clearly indicating to
whom and by whom it is addressed, it is in the customary form. This is known as manifest talak. It may be executed
in the presence of the kazi, the wife’s father, or any other relations or witnesses7. If the talaknama is not subscribed
in the aforesaid manner, it is called unusual, and the intention to divorce has to be proved8. If the talak is manifest, it
operates to dissolve the marriage immediately and irrevocably, as in a talak-ul-bain, even though not communicated
to the wife9. But the communication of written talak is necessary, for the purpose for which the communication of
oral talak is required.10

A Sunni husband may also make a written acknowledgement of divorce, in which case, the divorce is operative, at
least, from the date of acknowledgement11.

As has been already stated, the Shias recognize written divorce only when the husband is physically incapable of
pronouncing oral talak.

Capacity to Divorce
“Every divorce takes place except that pronounced by a minor”1. Thus said Prophet Mohammed. Muslim law lays
down that a Muslim who is minor and of unsound mind has no capacity to pronounce divorce2. It appears that age
of minority is to be determined by Muslim law, which means that a Muslim male who has attained the age of puberty
can pronounce divorce. A talak pronounced by a person of unsound mind or below the age of puberty is void3. Such
a talak cannot became effective even if the guardian accords his consent4.

The second requirement of capacity is that the person must be of sound mind. A talak pronounced by an idiot,
lunatic or person of unsound mind is void. However, a person of unsound mind may validly pronounce talak during
lucid intervals. Muslim law authorities go to the extent of holding that a pronouncement of divorce made by a person
who suffer from a disease which dulls his mind and makes him almost like a person of unsound mind will not be
valid.

Dumb person.—A talak pronounced by a dumb person is valid, provided it is expressed in positive and intelligible
signs. Shia law lays down that a talak pronounced by a dumb husband by signs sufficiently and clearly indicating
his intention to divorce is valid.

It appears that under Sunni law a person who is born deaf and dumb may pronounce a talak by intelligible signs or
in writing. But a person whose dumbness is not congenital but supervening can do so only by a written deed.

Better opinion seems to be that when a dumb person is literate, he should pronounce divorce in writing5.

Person in delirium, in faint or sleep or unconsciousness.—All schools of Muslim law agree that a talak
pronounced by a husband who is in delirium, in faint, in sleep or unconsciousness is totally invalid6.

Talak under compulsion.—The most curious aspect of the Hanafi law of divorce is that a talak pronounced under
compulsion or under intoxication is valid. So is a talak pronounced to please one’s father7. According to the
Hedaya8:

The foundation of this is that the man alluded to has the choice of two evils, one, the thing with which he is threatened or
compelled, and the other, divorce upon compulsion and viewing both, he makes choice of that which appears to him the
easiest, namely, divorce and this proves that he has an option, though he be not desirous that its effect should be
established, or in other words, that divorce should take place upon it.

According to the Fatwa-i-Alamgiri1—

A talak pronounced by an adult and a sane Muslim male is valid even though pronounced under compulsion or even when
it is uttered in sport or jest or inadvertently by a mere slip of tongue.
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Chapter VII FAULT GROUNDS OF DIVORCE

Thus it has been held that a talak is valid even though given to satisfy some one, a relation or a friend2. Similarly,
when a Muslim, under compulsion, appoints another person to pronounce talak on his behalf and if that person, in
exercise of the authority so conferred, pronounced talak on the wife, the talak will be valid3.

According to Amir Ali for the validity of a talak pronounced under compulsion, the following three conditions are
necessary4:—
(i) The compeller must be in a position to do what he threatens to,
(ii) there is a strong possibility of threat being carried out, and
(iii) the threat involves some imminent and serious danger to the man.

Mere trifling injury is not sufficient to establish compulsion. The question is, whether talak is under compulsion
against public policy. It appears that in Rashid v. Anisa5, the Privy Council said that since such a divorce is valid
under Muslim law, the question of public policy did not arise.

A divorce under compulsion becomes valid, the moment it is pronounced.

It is also a curious aspect of Muslim law that when a talak under compulsion is in writing it is not valid. Similarly, a
talak obtained from a Muslim under detention or after giving him thrashing is not valid6. In Nur Bibi v. Ali Ahmed7,
the Allahabad High Court held that an acknowledgement of talak under compulsion would be invalid if it was proved
to be untrue. Confirmation of such a talak is also not valid8. On the other hand, a written compromise signed by the
husband and wife addressed to the wife would amount to valid talak, as it is not just an acknowledgement but
pronouncement of talak9. But these are not cases of compulsion.

Shia, Shafii andmaliki law.—The Shia law does not recognize talak pronounced under compulsion, or by fraud or
under the influence of liquor or drugs. The Malikis and the Shafiis also do not recognize talak pronounced under
compulsion or threat.

Talak under intoxication.—Under the Hanafi law there is some controversy as to whether a talak pronounced
under the influence of intoxicants is valid10. But in India, it seems to be the established law that a talak pronounced
under voluntary intoxication is valid1.

But when talak is pronounced under involuntary intoxication, or in a state of perturbation, there is difference of
opinion. One opinion that talak pronounced in a state of voluntary intoxication will not be valid, if it is caused by
taking something for a necessary purpose, such as when opium or wine is taken as a medicine.

Under Shia law talak under the influence of intoxicants whether consumed voluntarily or involuntarily, is not be
valid.

It seem under Shafii law, talak pronounced under a state of voluntary intoxication is valid.

Talak in jest or by mistake—The Prophet said, “there were three things which whether done in joke or earnest,
shall be considered as serious and effectual: one marriage, second divorce, third taking back”. From this tradition a
rule of law is deduced that a divorce pronounced in jest or sport is valid. The juristic principle on which this rule is
based is the hypothesis that talak from the point of view of the woman is restoration of her liberty. Thus, in Muslim
law talak pronounced in sport, in jest or inadvertently or by mere slip of tongue or in talking facetiously, is valid.
Such is the ramification of this principle that a talak pronounced carelessly is also valid2.

The Shias, the Shafiis, the Malikis and Hanbals do not recognize this form of divorce. The Shia law insists that for
effecting talak free will and intention to divorce are essential.

Under the Hanafi law, talak pronounced by a Muslim under a mistaken belief that the woman is not his wife, while in
fact she is, is valid3. On the other hand, if a Muslim under a mistaken belief that the woman whom he is
pronouncing a divorce is his wife, while in fact she is nobody to him, then his wife does not stand divorced.
Similarly, a person pronounces talak on a woman who is not his wife, but subsequently, he marries her. No divorce
takes place.

Talak during sleep or unconsciousness—All schools of law agree that a talak pronounced by one who happens
to be delirious, or in faint or asleep, unconscious or in stupor or lost in astonishment is invalid4. Such a talak will not
become valid even if such a person ratifies it on recovering full senses.
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Chapter VII FAULT GROUNDS OF DIVORCE

Return of Benefits on Talak

It is well-established principle of Muslim law that when a husband pronounces talak on his wife who is willing to live
with him and has no intention to break the marriage, the husband is liable to return articles received by him from his
wife or wife’s parents5.
DIVORCE UNDER CUSTOM AND SPECIAL ENACTMENTS

Hindu Law
The unique feature of the Hindu Marriage Act, 1955 is that it still retains custom in some matters. One important
aspect of recognition and retention of custom relates to dissolution of marriage. Similarly, divorce under certain
local enactment is also recognized. Section 29(2) of the Hindu Marriage Act, 1955 runs:

Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special
enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

This means that post-Act and pre-Act marriages are still dissoluble under custom or special legislation provided
such dissolution is recognized under custom or special enactment. Divorce recognized by custom is saved under
the Act, therefore, any finding that there cannot be a divorce by custom after coming into force of the Hindu
Marriage Act, 1955 is wrong and illegal.1 However, custom should be pleaded and established as it is an exception
to the general law of divorce.2 Not merely customary mode of divorce is still recognized but the customary forum is
also recognized.

Divorce under Custom

In fact, before the statutory reform of Hindu matrimonial law, divorce under Hindu law was recognized only under
custom, otherwise, Hindu marriage was regarded as indissoluble. Divorce, if custom recognized it, was available to
Hindus. So was the forum of divorce. This position is still retained.

It is well-established by a long chain of authorities that prevalence of customary divorce in the community to which
parties belong, contrary to general law of divorce, must be specifically pleaded and established by the persons
propounding such custom.3

Customary divorce being an exception to general law of divorce, ought to have been pleaded and established by
party propounding such custom.4

Customary dissolution of marriage cannot be a basis of divorce under section 13.5

In respect of customary divorce, neither one year’s bar to divorce (the fair trial rule) under section 14, nor any of the
bars laid down in section 23 of the Hindu Marriage Act, 1955 are applicable. The provisions of sections 24, 25 and
26 of the Act are also not applicable. In short, no provision, of the Hindu Marriage Act, 1955 applies to such
divorces. No petition in the court is required. The customary divorce may still be obtained the same way as they
were obtained earlier. Thus, a divorce under custom may be obtained through the agency of gram-panchayat or
caste tribunal or caste panchayats, by private act of parties, orally or in writing, or under an agreement, oral or
written, such as bill of divorcement, tyaga-patra or farkat-nama1. A custom recognizing divorce must fulfil all the
tests of a valid custom. A custom permitting divorce to one spouse against the wishes of the other is void, being
unreasonable and against public policy2.

The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by
incorporating section 29 (Hindu Marriage Act) by saving the validity of a marriage solemnized prior to the
commencement of the Act which may otherwise be invalid after passing of the Act. Nothing in the Act can affect any
right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage
whether solemnised before or after the commencement of the Act even without the proof of the conditions
precedent for declaring the marriage invalid as incorporated in sections 10 to 13 of the Act.3
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Chapter VII FAULT GROUNDS OF DIVORCE

The gram-panchayats and caste-panchayats continue to exercise jurisdiction over customary divorces. How the
jurisdiction is exercised and when the courts of law may interfere in their adjudication is well illustrated by
Premanbai w/o Channoolal v. Channoolal Punao4. The marriage of parties was dissolved by the Panchayat on the
basis of mutual consent of the parties. Subsequently, the wife filed a suit in a court of law for a declaration that the
marriage still subsisted on the averment that when she gave her consent for divorce she was only fourteen years
old and was not capable of giving a valid consent. Rejecting the suit, the court observed that the wife had at that
time sufficient understanding and since such divorces were recognized in the caste, the marriage stood dissolved.
On the other hand the case of Kishanlal v. Prabhu5, illustrates as to when and how the courts may interfere in a
customary divorce. The court can look into question as to whether the gram-panchayat had the jurisdiction and as
to whether the principles of natural justice were followed.

In Punjab and Haryana divorce have been recognized practically in all the tribes. However, it should be noted that
there is no general custom of divorce among the Punjab tribes. Custom varies from tribe to tribe and from locality to
locality. Among some tribes divorce is not recognized on any basis, while, in some tribes, divorce is available very
easily. Any discussion of customary mode and customary forum of divorce under Punjab customary law cannot be
exhaustive. Among, low caste Hindu tribes divorce has been generally recognized. It is only among the High caste
Hindus that divorce is recognized only under a special custom. It appears that among the Muslim agricultural tribes
the usual mode of talak is in talak-bidda form, that is one single pronouncement of divorce, such as, “I divorce thee
triply”, resulting in irrevocable dissolution of marriage. The urban Muslims mostly follow Muslim law in matters of
divorce; they are largely governed by their personal law.

In Sunder Devi v. State of Haryana1, parties belonged to district Hisar in Haryana. Agreement allegedly entered into
by parties stated that certain lands given to wife and she agreed to second marriage as she was unable to
conceive. Agreement nowhere stated that the relationship of husband and wife had come to an end. Agreement
also nowhere records existence of custom. Divorce by custom not proved.

No specific grounds, of divorce are recognized2. Divorce may be obtained by mutual consent, sometimes the
husband divorces his wife on some flimsy ground, sometimes he abandons her or renounces her, and sometimes
wife obtains divorce from him on some flimsy ground, or even without any. It is a difficult task to clarify various
modes of divorce. No such attempt is made here; some illustrative cases are grouped together.

It appears, most Jat tribes recognize easy mode of divorce. In some Jat tribes divorce is in writing, in some it is oral.
There are only a few Jat tribes which do not recognize divorce. Other tribes, too, recognize divorce.

Written divorce.—Some tribes, such as Ghuman Jat3 insists that the divorce must be in writing. In such a case it is
not necessary to state the ground of divorce. Mostly, in such a caste divorce is unilateral; whenever the husband
wants to divorce his wife, he writes a tyag-patra (in case of Hindu tribes) or farkat-nama (in case of Muslim tribes).
However, there is no rigidity. A Hindu husband may also use the form of farkat-nama. It must be clearly understood
that customary law does not prescribe any form. However, if it is in writing, the deed must clearly express the
intention to divorce. The tyag-patra and farkat-nama are only two instances of written divorce. When written divorce
is recognized and the husband divorces his wife by a writing which may be in the form of a tyaga-patra or farkat-
nama, or in any form, divorce is valid, and the woman is free to remarry4. So is the man.

Renunciation, abandonment or repudiation.—Among several tribes and communities, particularly the Jat tribes,
a husband has the power to repudiate marriage. In Lachhu v. Dalsingh5, where parties were Guman Jats of
Gurdaspur Tehsil, Roe, C.J., observed: It is in no way repugnant to the spirit of this law that a man who takes a wife
should have the power of repudiating her and that, when so repudiated, she should be free to marry another man.”
In Gopi Krishna v. Jaggo6, a custom in the vaishya community under which abandonment or desertion of the wife
by the husband brought about a dissolution of marriage, was held valid. Among the Jats of Sialkot an oral
abandonment or repudiation of wife does not lead to divorce; it must be in writing1. At one time it was doubted as to
whether among the Jats of Jullundur District a husband could divorce his wife2. But in all the districts surrounding
Jullundur there has been a well-recognized custom under which the husband can dissolve the marriage by turning
out or abandoning his wife. In such a case the wife is free to remarry. In Gurdit Singh v. Angrez Kaur3, the Supreme
Court found that such a custom also prevailed in Jullundur District. In some cases a view has been expressed that
mere abandonment of the wife by the husband does not lead to automatic divorce, and if the abandoned wife lives
with another man as his wife, the second marriage will not be recognized4. On the other hand, in some cases, it has
held that a repudiated or abandoned wife is free to remarry either in formal form or in informal form, such as Karewa
or Chadar andazi form5 Sir Shadi Lal observed that where by custom abandonment or desertion of a wife by her
husband dissolves the marriage tie, the wife may, during the life time of her husband, validly contract a second
marriage6. Among some castes, just as Zargars of Gurdaspur District, abandonment or desertion of the wife by the
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Chapter VII FAULT GROUNDS OF DIVORCE

husband does not lead to divorce7. However, in this case it was found that Zargars (goldsmiths) were not governed
by custom but by personal law, i.e., Hindu law. A woman by abandoning or deserting her husband cannot, thereby,
repudiate the marriage and enter into a valid second marriage. However in M. Govindraju v. K. Munisami Gounder8,
it was held that abandonment by shudra wife of her husband and her living with another man and her husband not
bringing her back resulted in divorce.

Immorality, unchastity, adultery or conversion. —Among some tribes the husband can divorce his wife on the
ground of unchastity, immorality or adultery. In Bhan Kaur v. Isher Singh9, the Court recognized that among
Malerkotla Jats the husband has power to divorce a wife who is immoral or who committed adultery or who
converted to another religion. In Gurgaon District the husband has a right to dissolve his marriage with his unchaste
wife by abandoning her1.

Apostasy.—Before the coming into force of the Dissolution of Muslim Marriage Act, 1939, the position was that
apostasy (conversion to another religion) or either husband or wife operated as an instant dissolution of marriage2.
This was also the position among the Muslim tribes of Punjab3. After the coming into force of the Dissolution of
Muslim Marriage Act, 1939 the position is: (i) apostasy of the husband still results in an instant dissolution of
marriage if the wife who before marriage belonged to another faith, reconverts to her original faith, it results in
instant divorce; (ii) the apostasy of Muslim wife does not result in instant divorce4.

Whether the apostasy of Hindu wife or husband results into instant divorce under customary law. In a series of
cases it has been held that apostasy of the Hindu wife or husband in any tribe or community does not result in
divorce5. Under the Hindu Marriage Act, 1955, the conversion of wife or husband entitles the other party to sue for
divorce6.

Expulsion from caste.—Expulsion of the husband from the caste does not lead to divorce and the wife cannot
refuse to live with the husband.

Divorce by mutual consent.—The customary law recognizes divorce by mutual consent. Sometimes such
divorces are in writing and sometime these are oral7. Sometimes the consent of the husband is obtained by making
payment to the husband of the actual expenses of the marriage. Such a divorce is valid8. But marriage with a
woman whose husband is alive even with the knowledge of the latter is not valid9. Similarly, a custom under which
the marriage can be dissolved either by the husband or the wife without obtaining the consent of the other spouse,
on the payment of a sum of money to bradari is not a valid custom10. Proof of udiki marriage among lingayats
impliedly proves dissolution of an earlier marriage.11

Divorce under Special Enactments

As has been seen in Chapter I, Part I, prior to the coming into force of the Hindu Marriage Act, 1955, some of the
States have passed statutes introducing monogamy and divorce in Hindu law. Some States have some matrimonial
statutes to regulate marriage and divorce among some Hindu communities and castes a group of castes. The
Hindu Marriage Act, 1955 has repealed all the State general statutes introducing monogamy and divorce. However,
it has not repealed the statutes falling under the second category. Section 29(2) of the Hindu Marriage Act, 1955
retains them.

In some of these enactments1 divorce by mutual consent or by a deed executed by the parties is recognized.
Among the matrilineal communities, such as Marumakkattayam and Aliyasantana, marriage has always been
considered to be consensual union and not a sacrament and has been considered to be dissoluble by mutual
consent. Some special enactment of the old Madras Province and the erstwhile States of Travancore and Cochin
regulated marriages and divorce in these communities. These enactments have not been repealed by the Hindu
Marriage Act, 19552. When divorce is sought under these enactments none of the provisions of the Hindu Marriage
Act, 1955 apply to it. Neither one year’s bars to divorce, nor any bars under section 23 of the Hindu Marriage Act,
1955 apply to such divorces. Similarly, the provisions of sections 24, 25 and 26 of the Act do not apply3.

In M. Saraswathy Amma v. P. Padmavathy Amma,4there are some interesting aspects. Section 29(2) of the Hindu
Marriage Act, 1955 saves customary divorces and divorces under special statutes. The present case is concerned
with section 6(2) of the Madras Marumakkathayam Act, 1933 under which a marriage may be dissolved by mutual
consent of the parties. In this case a divorce deed was executed between the spouses under which they agreed to
dissolve their marriage by mutual consent. But they did not act upon the deed and continued to live as husband and
wife. Thereafter the husband took a second wife. The question was whether the first marriage stood dissolved. The
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Chapter VII FAULT GROUNDS OF DIVORCE

court came to the conclusion that it did not as parties continued live together. In view of this finding the court said
that the second marriage was void. It is submitted that the written deed under the special statute was enough to
dissolve the marriage. If thereafter parties lived together it was at best the relationship between a man and his
concubine. In view of this the second marriage was valid.

There is an interesting discussion on the question as to what is the effect of section 4 of the Hindu Marriage Act,
1955 on the existing statutes and customary law. In this case learned counsel argued that “what is saved by section
29(2) is the right to” obtain dissolution. He further argued that the right to seek divorce was available, but that it was
limited to the grounds under section 13, and that the grounds under the earlier enactment would not be available,
as those would be inconsistent with section 4 of the Hindu Marriage Act, 1955. The learned Judge, Mr. Justice
Shankaran Nair, rightly observed that under the section grounds of divorce were saved, as otherwise there would
nothing else to be saved. The learned Judge observed: “Saving cannot be of something which needs no saving and
saving can only be of something, which otherwise the repealing Act would destroy”. This view finds support of the
Punjab and Haryana High Court in Jagjit Singh v. Mohinder Kaur5, where the court observed:

If under custom or under special enactment a Hindu has a right to obtain dissolution on grounds other than those
enumerated under section 13 of the Hindu Marriage Act, he is entitled to avail of the same.

However, Nair, J., left the question open as he had decided the case on other basis, which it has been submitted
earlier, is a erroneous view.

Divorce can be granted only on the grounds enumerated in the various Acts. In the instant case the husband had
promised to pay lifetime maintenance to wife and the High Court had after paraphrasing the husband’s affidavit had
granted divorce. The Supreme Court held that law does not permit to purchase a decree of divorce for
consideration with or without the consent of other party. Consent in divorce matter is of no consequence unless it is
divorce by mutual consent.1 Marriage can be dissolved only by taking recourse to provisions contained in the Act.2

Marriage Registration Certificate: Not a Precondition for Divorce Petition

There is no law or rule stipulating that the production of marriage certificate is compulsory to maintain a petition
under section 13B of the Hindu Marriage Act. Hence, it was held that the returning of the petition for non-production
of the marriage certificate was therefore without jurisdiction of lower court.3

Divorce: Non-resumption of Cohabitation for One year after Decree of

Judicial Separation
It was held in such instant that since section 13(1A) of the 1955 Act specially provides the time from which the
period of one year is to be reckoned i.e., the date of passing of a decree for judicial separation or for restitution of
conjugal rights as the case may be, there is no scope for holding that when such a decree passed by the court for
first instance is affirmed by the Appellate Court the period of one year is stipulated in section 13(1A) of the 1955 Act
is to be reckoned from the date of passing of decree by the Appellate Court on the ground that the decree passed
by the court for first instance merges with the decree passed by the Appellate Court. Further an appeal preferred
against the decree passed by the court of first instance does not automatically operate as stay of execution or
operation of such decree which principle is embodied in rule 5(1) of Order XLI of CPC.4

Wife Lodging FIR against Husband under section 498A of IPC: No Ground
for Denying Divorce in Favour of Husband
The wife had lodged a FIR against husband and his family members for offences punishable under sections 498A,
506, 406/34 of IPC. The husband and his parents had to surrender and get themselves bailed out. It could be said
as was held, that wife treated husband with cruelty. Hence, husband entitled decree of divorce.5
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Chapter VII FAULT GROUNDS OF DIVORCE

1 Section 13(1).
2 Section 13(2).
3 AIR 2009 SC 557 [LNIND 2008 SC 2272]: 2008 AIR SCW 7687: (2009) 1 SCC 42 [LNIND 2008 SC 2272]: (2008) 14
SCALE 228 [LNIND 2008 SC 2272].
1 Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 557 [LNIND 2008 SC 2272]: (2009) 1 SCC 42 [LNIND 2008 SC
2272]: (2008) 16 SCR 396 : JT 2008 (12) SC 115 [LNIND 2008 SC 2272]: (2008) 14 SCALE 228 [LNIND 2008 SC
2272].
2 Saidali K.H. Hassan v. V. Saleema Aboobacker, AIR 2009 (NOC) 501 (Ker).
1 Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, AIR 2003 SC 2462 [LNIND 2003 SC 440]: 2003 AIR SCW
2530: (2003) 6 SCC 334 [LNIND 2003 SC 440].
1 Sharda v. Dharmpal, AIR 2003 SC 3450 [LNIND 2003 SC 366]: 2003 AIR SCW 1950: (2003) 4 SCC 493 [LNIND 2003
SC 366].
* Christian Law of Marriage & Divorce has been substantially amended by Act 51 of 2001.
1 Subs. by Act 51 of 2001, sec. 5.
2 AIR 1982 SC 1261 [LNIND 1982 SC 112]: (1983) 1 SCWR 92: (1982) 2 SCC 474 [LNIND 1982 SC 112].
1 AIR 1990 AP 220 [LNIND 1990 AP 68]: (1991) 2 DMC 194.
1 Section 18.
2 Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Del 135 [LNIND 1992 DEL 527]: 1993 (1) Civ LJ 615: 1993 (1) Cur CC
1: 1993 Raj LR 88; A. v. H., AIR 1993 Bom 70 [LNIND 1992 BOM 63]: 1992 CCC 645: 1992 Mah LJ 791 [LNIND 1992
BOM 63]: (1992) 94 Bom LR 154 [LNIND 1992 BOM 63]; Ashok Kumar Bhatnagar v. Shabnam Bhatnagar, AIR 1989
Del 121 [LNIND 1988 DEL 305]: (1988) 2 Hindu LR 682: (1989) 1 DMC 172 : 1989 Marri LJ 294.
* The word “Indian” omitted by Act 51 of 2001 (w.e.f. 3-10-2001).
3 Section 2(viii)(b).
4 Section 13(1)(i).
5 Section 27(1)(a).
6 Section 32(d).
7 Section 10 (as substituted by Act 51 of 2001).
1 Section 10 of the Hindu Marriage Act, 1955, section 23 of thespecial Marriage Act, 1954, section 22 of the Indian
Divorce Act, 1869.
2 Madhusmita Nayak v. Simadri Nayak, AIR 1997 Ori 162 [LNIND 1997 ORI 70]: 1997 (3) Civ LJ 601: 1997 (84) Cut LT
132.
1 Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Cal l: (1988) 2 Cal LJ 156 [LNIND 1988 CAL 235]: (1988) 2 Cal HN
153: (1988) 93 CWN 231.
2 Ammini E.J. v. Union of India, AIR 1995 Ker 252 : 1995 (1) Ker LJ 624.
3 Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom 349 [LNIND 1997 BOM 513]: 1997 (4) Bom CR 551
[LNIND 1997 BOM 513]: 1997 (3) Bom LR 333 [LNIND 1997 BOM 513]: 1997 (3) Mah LJ 602 [LNIND 1997 BOM 513].
4 N. Sarada Mani v. G. Alexander, AIR 1998 AP 157 [LNIND 1997 AP 1043]: 1998 (1) APLJ 445 [LNIND 1997 AP 1043]:
1997 (6) Andh LD 740: 1997 (6) Andh LT 270 [LNIND 1997 AP 1043].
1 Sapsford v. Sapsford and Furtado, (1954) 2 All ER 373 (394): (1954) 3 WLR 34.
2 Dennis v. Dennis, (1955) 2 All ER 51 : (1955) 2 WLR 817 (CA); Subramma v. Sarswathi, (1966) 2 MLJ 263 [LNIND
1966 MAD 38].
3 Redpath v. Redpath, (1950) 1 All ER 600; Maclennan v. Maclennan, (1958) SLT 12.
4 Rajesh Kumar Singh v. Rekha Singh, AIR 2005 All 16 [LNIND 2006 AP 831]: 2005 All LJ 102: 2004 (2) All CJ 2244:
2005 (3) All WC 2259.
5 Maclennan v. Maclennan, (1958) SLT 12.
6 S. v. S., (1962) 1 WLR 445.
7 Barnett v. Barnett, (1957) 1 All ER 388.
8 Gushawk v. Gushwk, (1965) 109 SJ 290.
 Page 111 of 140
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9 Benton v. Benton, (1957) 3 All ER 544.

10 (1928) AC 687 .
1 Sapsford v. Sapsford and Furtado, (1954) 2 All ER 373 : (1954) 3 WLR 34.
2 (1966) 2 MLJ 263 [LNIND 1966 MAD 38].
3 58 DLR 251.
4 58 DLR 251 (258) (Emphasis added).
5 58 DLR 251 (257).
1 Parliamentary Debates (Lords), 404, (1948-49).
2 Parliamentary Debates (Lords), 404, 406-607, the Archbishop opined: It is the fundamental principle of Christian belief
that God is love and our common Father, from which belief springs the dignity of human personality. This requires its
co-relative principle that children should be borne of love of their parents. In AID the mechanical element in procreation
is separated, and not temporarily but absolutely separated, from the organic and personal lives of the two persons
involved....In AID human life is initiated as the result of a monetary mechanical process entirely divorced from the
spiritual, mental, emotional and physical lives of its parents.
3 Artificial Insemination, 34 Canadian Bar Review 19, (1956).
4 Artificial Insemination, 34 Canadian Bar Review 19 (22), (1956).
5 Artificial Insemination, 34 Canadian Bar Review 19 (22), (1956). See also M.A. Hubbard Artificial Insemination: A reply
to Deen Tallin.
1 1958 SLT 12 . In most of the countries including India, adulterer is a necessary party to the suit.
2 (1958) SLT 12.
1 However, in an English statute passed subsequently, this suggestion was not incorporated. The Matrimonial Causes
Act, 1973 also does not make it separate ground for divorce, or as a fact for irretrievable breakdown of marriage.
2 See Kusum, Artificial Insemination and the Law, (1979) 19 JILI 283.
3 Rajni v. Prabhakar, AIR 1950 Bom 204 .
4 Maganlal Budhaiabhai Patel v. Bai Dahi, AIR 1971 Guj 33 . See also Narayana v. Parkuty, 1973 KLT 80.
5 Parvati v. Shiv Ram, AIR 1989 HP 29 [LNIND 1988 HP 25]: (1988) 2 HLR 661: (1988) 2 DMC 430; Ann Sarkar v. Anil
Sarkar, AIR 1989 Gau 44 [LNIND 1988 GAU 23]: (1988) 1 DMC 462: (1988) 24 Reports 405: 1990 (1) Civ LJ 43.
6 Ramnarayan Baburao v. E., ILR (1937) Bom 244.
1 AIR 1989 Cal 1 [LNIND 1988 CAL 235]: (1988) 2 Cal LJ 156 [LNIND 1988 CAL 235]: (1988) 2 Cal HN 153: (1988) 93
CWN 231 (SB).
2 Lakra v. Bakla, (1932) 140 IC 561; Sita Devi v. Gopal Sharan, AIR 1928 Pat 375 : 111 Ind Cas 762.
3 S.I. Davidson v. Norah, (1921) 62 IC 782.
4 Rajendra Agrawal v. Sharda Devi, AIR 1993 MP 142 [LNIND 1992 MP 98]: (1994) 1 HLR 1: 1993 Marri LJ 568.
5 Vijayan alias Mathew Vijayakumar v. Bhanusundari, AIR 1995 Mad 166 [LNIND 1994 MAD 615]: 1995 (1) Mad LJ
112(Indian Divorce Act, 1869).
6 Bhola Kumar v. Seema Devi, AIR 2015 Pat 119 [LNIND 2015 PAT 3139].
7 Sanjukta Padhan v. Laxminarayan Padhan, AIR 1991 Ori 39 [LNIND 1990 ORI 192]: (1990) 2 Cr LJ 189: 1990 (2) Civ
LJ 636.
8 Woolf v. Woolf, (1931), p. 134.
1 E.G. Hunter v. E., (1920) 61 IC 238.
2 Felix Edward Geyer v. M.M. Geyer, ILR (1947) Lah 867 : AIR 1949 Lah 34 (FB).
3 Rutherford v. Rutherford, (1923) AC 1.
4 Russell v. Russell, (1924) AC 684 ; Snowwan v. Snowwan, (1934), p. 186.
5 Thompson v. Thompson, (1938) 2 All ER 359; Rutherford v. Rutherford, (1923) AC 1.
6 Getty v. Getty, (1907), p. 334; Vedavalli v. M.C. Ramaswamy, AIR 1964 Mys 280 : (1964) 2 Cr LJ 686. But see V.
Varadarajulu Naidu v. Baby Ammal, AIR 1965 Mad 29 [LNIND 1963 MAD 309]: (1964) 1 MLJ 695: ILR (1964) 2 Mad
574, where uncorroborated evidence was accepted. The Court said: If Court is satisfied that is the test. See also Hotel
 Page 112 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

Bill case; Raspin v. Raspin, (1953) 2 All ER 349; Om Parkash v. Roshani, AIR 1985 P&H 364 (proof of non-access
should be clear and satisfactory).
7 Tripathi v. Bimla, AIR 1959 J&K 72.
8 AIR 1989 Cal 128 [LNIND 1988 CAL 263]: (1988) 2 Cal HN 241: (1988) 2 Cal LJ 294 [LNIND 1988 CAL 263]: (1988)
93 Cal WN 165.
9 Earnest John White v. Kathleen Olive White, AIR 1958 SC 441 [LNIND 1958 SC 18]: 1958 SCJ 839 [LNIND 1958 SC
18]: 1958 SCA 1108 [LNIND 1958 SC 18]: 1958 SCR 1410 [LNIND 1958 SC 18]; Subbarama v. Saraswati, (1966) 2
MLJ 263 [LNIND 1966 MAD 38]; H.T. Vira Reddy v. Kistamma, 1969 Mad 235: (1969) 1 MLJ 366 [LNIND 1968 MAD 7]:
81 Mad LW 490; Subrata Kumar Banerjee v. Dipti Banerjee, AIR 1974 Cal 61 [LNIND 1973 CAL 154]: 77 CWN 944;
Arun Kumar Bhardwaj v. Anila Bhardwaj, AIR 1993 P&H 33 : 1993 (1) Civ LJ 678: ILR (1994) 1 P&H 272 : 1993 (1)
Punj LR 230.
1 Dawn Henderson v. D. Henderson, AIR 1970 Mad 104 [LNIND 1969 MAD 25]: 82 Mad LW 458: (1969) 2 Mad LJ 196.
2 Anandi Devi v. Raja Ram, AIR 1973 Raj 94 : 1972 Raj LW 527: ILR (1972) 22 Raj 701 .
3 AIR 1989 HP 29 [LNIND 1988 HP 25]: (1988) 2 HLR 661: (1988) 2 DMC 430.
4 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
5 See Broja Kishore Ghosh v. Krishna Ghosh, AIR 1989 Cal 327 [LNIND 1988 CAL 129]: (1988) 24 Reports 313: (1988)
2 Cur CC 188: 1988 Mat LR 240.
6 (1897) AC 303 ; H.T. Vira Reddi v. Kistamma, AIR 1969 Mad 235 [LNIND 1968 MAD 7]: 81 Mad LW 490: (1969) 1
Mad LJ 366; Preston-Jones v. Preston-Jones, (1951) 1 All ER 124 (HL).
7 (1897) AC 303 .
1 AIR 1982 Ker 68 [LNIND 1981 KER 188]: (1982) 1 DMC 256.
2 AIR 1998 AP 341 [LNIND 1998 AP 306]: 1998 (2) APLJ 290: 1998 (4) Andh LD 78: 1998 (3) Andh LT 705.
3 AIR 1987 Ker 5 [LNIND 1986 KER 188]: 1986 Ker LJ 744: 1986 Ker LT 1068 [LNIND 1986 KER 188]: 1985 Mat LR
123.
4 AIR 1985 P&H 364 : (1986) 1 HLR 535.
5 AIR 2015 SC 418 [LNIND 2014 SC 891].
6 AIR 1930 Lah 824 .
1 Rashmi v. Vijay Singh Negi, AIR 2007 Utr 13 .
2 Bai Kanku v. Shiv Toya,(1892) 17 Bom 624.
3 Glaney v. Glaney, (1915) 31 IC 264; Over v. Over, ILR (1924) 49 Bom 368 .
4 Glaney v. Glaney, (1915) 31 IC 264; John Over v. Muriel A.I. Over, (1925) ILR 49 Bom 368: (1925) 27 Bom LR 251 :
AIR 1925 Bom 231 ; see also Mallika Rani v. D.S. Rajendran, AIR 1995 Mad 100 [LNIND 1994 MAD 539].
5 Collins v. Collins, 27 Dib 300.
6 (1964) 3 All ER 232.
1 (1948), p. 179.
2 (1948) 2 All ER 1113.
3 (1950) WN 156.
4 (1874) 2 SC & Div 374: 30 LT 649.
2 (1954), p. 252.
3 (1950), p. 125.
1 (1898), p. 169.
2 Saroj v. Kalyan, 85 CWN 73: AIR 1980 Cal 374 [LNIND 1980 CAL 264]; Veenu Handa v. Narinder Kumar Handa, AIR
1984 P&H 99 : 1983 Hindu LR 513: 1984 Mat LR 181: 1983 Marri LJ 487; N.G. Dastane v. S. Dastane, AIR 1975 SC
1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975 SC 125].
3 AIR 1986 MP 57 [LNIND 1985 MP 65]: 1986 MPLJ 105 [LNIND 1985 MP 65]: (1986) 1 DMC 457 : (1986) 1 HLR 54.
4 AIR 1986 Cal 105 : (1986) 1 HLR 591.
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1 Aruna Jalan v. Capt. (now Major) Ramesh Chand Jalan, AIR 1988 All 239 [LNIND 1988 ALL 119]: (1988) 2 DMC 117:
1988 Mat LR 269: (1988) 2 Hindu LR 497.
2 Sunita Singh v. Raj Bahadur Singh, AIR 1999 All 69 [LNIND 1998 ALL 632]: 1999 All LJ 513: 1999 (2) CCC 24 : 1999
Mat LR 288.
3 Rajee v. Baburao, AIR 1996 Mad 262 [LNIND 1995 MAD 575]: 1996 (2) CTC 22 [LNIND 1995 MAD 575]: 1996 (1) Cur
CC 601: 1995 (2) Mad LJ 492.
4 Patta Dhanalakshmi v. Patta Ramachandra Rao, AIR 1998 AP 341 [LNIND 1998 AP 306]: 1998 (2) APLJ 290: 1998
(4) Andh LD 78: 1998 (3) Andh LT 705.
5 (1968) 1 All ER 1162 (Fam).
6 (1970) 1 All ER 1157 (Fam).
7 (1970) 1 All ER 116 (CA).
8 Rabindra Prasad v. Sita Devi, AIR 1986 Pat 128 : (1986) 2 DMC 31: (1985) 2 HLR 69.
9 . Mani Shankar v. Radha Devi, AIR 1992 Raj 33 : 1992 Marri LJ 323: 1991 Mat LR 178; Parmila Devi v. Amarjit Singh,
AIR 2015 P&H 63.
10 Neelam Tiwari v. Sunil Tiwari, AIR 2009 MP 225 [LNIND 2009 MP 258]: 2009 AIHC 953 (NOC): 2009 (3) Civ LJ 908 :
2009 (3) MPLJ 45 [LNIND 2009 MP 258].
11 Nirmal Chandra Dash v. Kanaki Dash, AIR 2013 Ori 75 : 2013 (125) All Ind Cas 560.
1 Section 6 of the Hindu Minority and Guardianship Act, 1956;see also Paras Diwan, Modern Hindu Law, 224-225,
(1987).
2 78 NYS (2d) 390 (1948).
3 Quoted in 21 Modern Law Review 236 (240), (1958).
4 Time, December 27, 1954, p. 41.
1 See the review of this case in 41 ABAJ 263 (1955).
2 Gursky v. Gursky, 242 NYS (2d) 406 (1963); Anonymous v. Anonymous, 246 NYS (2d) 835 (1964); People v.
Sorensen, 68 Cali (2d) 280.
3 242 NYS (2d) 406 (1963).
4 246 NYS (2d) 835 (1964).
5 68 Cali (2d) 280.
6 This is the position under section 12 of the Hindu Adoptions and Maintenance Act, 1956.
1 Sagrika Debata v. Satyanarayan Debata, AIR 2010 Ori 58 [LNIND 2009 ORI 28].
2 Section 27(1)(b) of the Special Marriage Act, 1954 and section 13(1)(ib) of the Hindu Marriage Act, 1955.
3 Section 23(1)(a) of the Special Marriage Act, 1954 and section 10(1) of the Hindu Marriage Act, 1955.
4 Section 10, para 2 of the Indian Divorce Act, 1969.
5 Section 22.
1 Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, AIR 2002 SC 88 [LNIND 2001 SC 2520]: (2002) 1 SCC 308
[LNIND 2001 SC 2520]: 2001 AIR SCW 4641.
2 Section 32(g).
3 Section 34.
1 Section 10(ix) of the Divorce Act, 1869.
2 Perry v. Perry, (1952) 1 All ER 1076, per Evershed, M.R.
1 Milligan v. Milligan, (1941), p. 74; Deenu v. Deenu, (1949), p. 98.
2 Lepre v. Lepre, (1963) 2 All ER 49; Devi Singh v. Sushila Devi, AIR 1972 Raj 303 : 1972 WLN 296: 1972 Raj LW 447 :
ILR (1972) 22 Raj 655 ; Om Parkash v. Sareshta Devi, AIR 1993 HP 71 [LNIND 1992 HP 19]: 1994 (1) DMC 308: 1993
(2) Hindu LR 72; Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 [LNIND 2001 SC 2520]:
(2002) 1 DMC 94 (SC): AIR 2002 SC 88 [LNIND 2001 SC 2520].
3 Prafulla Kumar Tongya v. Sarla, AIR 1998 MP 285 : 1999 (2) Civ LJ 189: 1998 (1) Cur CC 594: 1999 (1) MPLJ 125.
 Page 114 of 140
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4 Deo Kumar Sah v. Anjali Kumari Sah, AIR 2009 Pat 4 [LNIND 2008 PAT 110]: 2009 AIHC 165 (NOC): 2009 (1) AIR
Jhar R 723: 2009 (1) Hindu LR 614.
5 Rameshchandra v. Premlata Bal, AIR 1979 MP 15 [LNIND 1978 MP 151]: 1979 Jab LJ 47: 1979 MPLJ 24; Sunil
Kumar v. Usha w/o Sunil Kumar, AIR 1994 MP 1 [LNIND 1993 MP 112]: 1994 (1) Civ LJ 518: 1994 (2) CCC 196 : 1994
MPLJ 201 [LNIND 1993 MP 112].
6 Pery v. Pery, (1963) 3 All ER 766.
7 Lakkaraju Padma Priya v. Lakkaraju Shyam Prasad, AIR 2009 AP 54 [LNIND 2008 AP 964]: 2009 AIHC 293 (NOC):
2009 (2) ALJ (NOC) 383: 2009 (1) Andh LD 608(DB).
8 Arvinder Kaur v. Harjinder Singh, AIR 2007 P&H 24 : 2007 AIHC 171 (NOC): 2007 (2) CCC 476 : 2007 (1) Punj LR
734.
1 S. Prasanna Kumar v. R. Saraswathi, AIR 2009 Kant 109 [LNIND 2009 KANT 34]: 2009 AIHC 2089: ILR 2009 Kant
878 : 2009 (2) Kant LJ 633.
2 AIR 1985 Del 43 [LNIND 1983 DEL 323]: (1984) 1 DMC 43: 1984 Raj LR 363 : 1984 Hindu LR 519.
3 AIR 1985 Del 76 [LNIND 1984 DEL 248]: (1985) 1 DMC 20: (1985) 1 Hindu LR 351.
1 (2002) 1 SCC 308 [LNIND 2001 SC 2520]: AIR 2002 SC 88 [LNIND 2001 SC 2520]: (2002) 1 DMC 94 (SC).
2 AIR 1985 P&H 356 : (1985) 2 DMC 155.
3 AIR 1985 P&H 232 : 1985 Mad LR 315.
4 AIR 1985 Del 491 [LNIND 1985 DEL 178]: (1985) 1 Cur CC 1081: (1985) 1 DMC 514 : (1985) 28 DLT 86 [LNIND 1985
DEL 178].
1 Sandeep Kumar v. Sonila Kumar, AIR 2008 Raj 75 [LNINDU 2007 RAJ 798]: 2008 AIHC 662 (NOC): 2008 (1) CCC
438 : 2008 WLC (Raj) (UC) 14.
2 AIR 1984 All 274 [LNIND 1984 ALL 52]: 1984 All WC 276: 1984 All CJ 209.
3 AIR 1957 SC 176 [LNIND 1956 SC 82]: 59 Bom LR 323: 1956 SCR 838 [LNIND 1956 SC 82].
4 AIR 1984 Del 389 [LNIND 1984 DEL 102]: (1984) 2 DMC 20: (1984) 7 Del Rep J 19: 1984 Marri LJ 48.
5 82 PLR 83.
1 AIR 1986 P&H 253.
2 AIR 1984 Kant 131 [LNIND 1983 KANT 99]: (1984) HLR 210: (1984) 1 Civil LJ 348; see Leela Devi v. Suresh Kumar,
AIR 1994 Raj 128 : 1994 Marri LJ 521: 1994 Mat LR 192.
3 Indira Gangele v. Shailendra Kumar Gangele, AIR 1993 MP 59 [LNIND 1992 MP 120]: 1993 Marri LJ323: (1991) II
DMC 401.
4 AIR 1987 Del 79 [LNIND 1986 DEL 171]: 1986 Raj LR 386: (1987) 91 Punj LR (D) 87.
5 AIR 1987 Del 99 [LNIND 1986 DEL 233]: (1986) 2 HLR 167: 1987 Marri LJ 21.
1 In this case the learned judge has reviewed some of decisions of the Delhi High Court on the subject as well as
Supreme Court decisions, Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 [LNIND 1956 SC 82]: 1956
SCR 838 [LNIND 1956 SC 82]: 1957 SCJ 144; Lachman Uttamchand Kriplani v. Meena, AIR 1964 SC 40 [LNIND 1963
SC 187]: (1964) 4 SCR 331 [LNIND 1963 SC 187]: 66 Bom LR 297.
2 AIR 1987 Del 255 [LNIND 1986 DEL 326]: (1987) 1 DMC 359: (1987) 6 (1) IJ Rep 170: (1987) 1 Hindu LR 449.
3 Ram Chander Lamba v. Adarsh Lamba, (1986) 2 Hindu LR 167 : 1987 Marri LJ 21: 1987 Mat LR 192: AIR 1987 Del 99
[LNIND 1986 DEL 233] (104) (Para 46).
4 (2002) 2 SCC 73 [LNIND 2002 SC 7]: AIR 2002 SC 591 [LNIND 2002 SC 7]: (2002) 1 DMC 177.
1 Chemari Balan Nair v. Manikkoth Vilasini, AIR 1998 Ker 313 [LNIND 1998 KER 136]: ILR (1998) 3 Ker 43 : 1998 (1)
Ker LJ 765: 1999 (1) Marri LJ 177.
2 Gullipalli Srinivas v. Gullipalli Pydithalli, AIR 1998 AP 373 [LNIND 1998 AP 274]: 1998 (2) APLJ 330: 1998 (4) Andh LD
143: 1999 (1) Andh WR 207.
3 S. Prasanna Kumar v. R. Saraswathi, AIR 2009 Kant 109 [LNIND 2009 KANT 34]: 2009 (2) Hindu LR 79: 2009 (3) Civ
LJ 232 (DB).
4 Sunita Devi v. Shri Lala, AIR 2009 HP 52 [LNIND 2009 HP 80].
5 (2005) 8 SCC 177 [LNIND 2005 SC 716]: AIR 2005 SC 3508 [LNIND 2005 SC 716]: 2005 AIR SCW 4755.
 Page 115 of 140
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6 Lakkaraju Padma Priya v. Lakkaraju Shyam Prasad, AIR 2009 AP 54 [LNIND 2008 AP 964]: 2009 AIHC 293 (NOC):
2009 (2) ALJ (NOC) 383: 2009 (1) Andh LD 608.
7 Deo Kumar Sah v. Anjali Kumari Sah, AIR 2009 Pat 4 [LNIND 2008 PAT 110]: 2009 AIHC 165 (NOC): 2009 (73) All
Ind Cas 844: 2009 (1) DMC 628.
1 AIR 1957 SC 176 [LNIND 1956 SC 82]: 59 Bom LR 323: 1956 SCR 838 [LNIND 1956 SC 82].
1 AIR 1964 SC 40 [LNIND 1963 SC 187]: 66 Bom LR 297: (1964) 4 SCR 331 [LNIND 1963 SC 187]: (1965) 1 SCA 310
[LNIND 1963 SC 187].
3 AIR 1972 SC 459 [LNIND 1971 SC 615]: (1972) 1 SCC 1 [LNIND 1971 SC 615]: (1972) 2 SCR 657 [LNIND 1971 SC
615].
4 Shikha v. Jasvinder Singh, AIR 2014 P&H 142 : 2014 (5) All MR 45JS: 2014 (3) Rec Civ R 760.
5 AIR 1967 MP 200 : 1967 Jab LJ 294: 1967 MPLJ 446 [LNIND 1967 MP 89].
6 AIR 1962 MP 196 .
7 (1967) 69 PLR 566.
1 AIR 1957 SC 176 [LNIND 1956 SC 82]: 1957 SCR 838: 1957 SCJ 144 : 1957 SCA 143 : 1957 SCC 48.
1 AIR 1967 MP 200 : 1967 Jab LJ 294: 1967 MPLJ 446 [LNIND 1967 MP 89].
2 (1967) 69 PLR 566.
3 AIR 1964 SC 40 [LNIND 1963 SC 187]: 66 Bom LR 297: (1964) 4 SCR 331 [LNIND 1963 SC 187]: (1965) 1 SCA 310
[LNIND 1963 SC 187].
2 AIR 1967 MP 200 : 1967 Jab LJ 294: 1967 MPLJ 446 [LNIND 1967 MP 89].
1 (1967) 69 PLR 566.
2 See also Kamal Kumar v. Kalyani, 92 CWN 323: (1988) 2 HLR 25: AIR 1988 Cal 111 [LNIND 1987 CAL 176]; Sunil
Kumar v. Usha w/o Sunil Kumar, AIR 1994 MP 1 [LNIND 1993 MP 112]: 1994 MPLJ 201 [LNIND 1993 MP 112]: 1994
Marri LJ 141: 1993 Mat LR 403;Leela Devi v. Suresh Kumar, AIR 1994 Raj 128 : 1994 Marri LJ 521: 1994 Mat LR 192.
3 JT 1990 (1) SC 99 [LNIND 1990 SC 45]: AIR 1990 SC 594 : (1990) 1 SCC 475.
4 Gurawant or salta-palta marriage is one in which under the custom brothers and sisters of one family are married to
brothers and sisters of another family.
1 AIR 1995 Raj 86 : 1995 (1) Cur CC 505: 1995 (21) Marr LJ 320: 1994 (2) Raj LR 461.
2 AIR 1998 AP 225 [LNIND 1997 AP 771]: 1998 (3) Andh LD 608: 1997 (5) Andh LT 805 : 1998 (1) Marri LJ 116.
3 Lakkaraju Pradma Priya v. Lakkaraju Shyam Prasad, AIR 2009 AP 54 [LNIND 2008 AP 964]: 2009 AIHC 293 (NOC):
2009 (76) All Ind Cas 848: 2009 (1) Andh LD 608.
4 Bepgn v. Beigan, (1956) 2 All ER 630.
5 (1968) 3 All ER 543.
6 Section 1(2)(d) of the Matrimonial Causes Act, 1973.
7 Section 13B.
8 Section 28.
1 AIR 1998 All 140 [LNIND 1997 ALL 1066]: 1998 All LJ 775: 1997 All CJ 1407: 1998 (1) All WC 275(DB).
2 Pardy v. Pardy, (1939) 2 All ER 779; Gallagher v. Gallagher, (1965) 2 All ER 967.
3 Principles of Family Law, 127.
4 Nulley v. Nulley, (1970) 1 WLR 217.
1 Pulford v. Pulford, (1923), p. 18, per Lord Merrivale. Since then those words have been repeated both in English and
Indian cases of constructive desertion.
2 Smith v. Smith, (1940), p. 49; Hopes v. Hopes, (1949), p. 227; Naylor v. Naylor, (1962), p. 251.
3 Hopes v. Hopes, (1949), p. 227.
4 (1954) 1 All ER 571 : (1954) 3 WLR 762 : (1955) AC 402.
1 Hopes v. Hopes, (1949), p. 227.
2 Le Brooq v. Le Brooq, (1964) 1 WLR 1085 : (1964) 3 All ER 464 : 108 SJ 501.
 Page 116 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

3 (1954) 1 All ER 571: (1954) 3 WLR 762 : (1955) AC 402.

4 (1925), p. 192.
5 AIR 1970 Cal 266 [LNIND 1969 CAL 231].
1 AIR 1966 HP 70 [LNIND 1966 HP 1]: 1966 Cr LJ 1438.
2 See also Leela Devi Shriwastava v. Manoharlal Shriwastava, AIR 1959 MP 349 [LNIND 1959 MP 193]: 1959 MPC
307: 1960 MPLJ 710.
3 AIR 1989 Del 121 [LNIND 1988 DEL 305]: (1988) 2 Hindu LR 682: 1989 Marri LJ 294: 1989 Mat LR 1.
1 Tapankumar Chatterjee v. Kamala Chatterjee, AIR 1989 Cal 74 [LNIND 1987 CAL 109]: (1989) 1 DMC 428.
2 AIR 1989 Bom 75 [LNIND 1987 BOM 483].
3 AIR 1989 Cal 115 [LNIND 1988 CAL 176]: (1988) 2 CHN 449: 1990 (1) DMC 145.
4 Teerth Ram v. Parvati Devi, AIR 1995 Raj 86 : 1995 (1) Cur CC 505: 1995 (21) Marr LJ 320: 1994 (2) Raj LR 461.
6 See Dunn v. Dunn, (1967), p. 25; Morgan v. Morgan, (1973) 117 SJ 223.
7 Ashok Kumar Bhatnagar v. Shabnam Bhatnagar, AIR 1989 Del 121 [LNIND 1988 DEL 305]: (1988) 2 Hindu LR 682:
(1989) 1 DMC 172 : 1989 Marri LJ 294; Vidhya Viswanathan v. Kartik Balakrishnan, AIR 2015 SC 285 [LNIND 2014
SC 852]: 2014 AIR SCW 5789.
8 Ramish Francis Toppo v. Violet Francis Toppo, AIR 1989 Cal 128 [LNIND 1988 CAL 263]: (1988) 2 HLR 760: (1989) 1
DMC 322 (SB).
9 Buchler v. Buchler, (1947) 1 All ER 319 : 176 LT 341.
1 Buchler v. Buchler, (1947) 1 All ER 319 : 176 LT 341, see also Pike v. Pike, (1954), p. 81.
2 Hall v. Hall, (1962) 1 WLR 1246 : (1962) 3 All ER 518.
3 Pike v. Pike, (1954), p. 81 (88).
4 AIR 1993 Mad 174 [LNIND 1993 MAD 85]: 1994 (1) DMC 315: 1993 (2) Hindu LR 78 : 1994 Marri LJ 480.
5 AIR 2013 Chh 1 : 2012 (3) Cg LJ 490: 2013 (1) DMC 638; Erram Sharath Babu alias Sharath Reddy v. Erram Anitha,
AIR 2013 AP 110 [LNIND 2013 AP 23]: 2013 (2) DMC 304: 2013 Mat LR 580.
6 Lang v. Lang, (1954) 1 All ER 571 : (1954) 3 WLR 762 : (1955) AC 402.
7 (1943) I All ER 433.
8 See also Bartman v. Bartman, (1949) 2 All ER 270, wherein wife was in desertion. She came back to live under the
same roof as her husband was living as it was easier for her to reach to her place of work from there. But she never
went to his room nor slept with him. She did not do any work for her husband. It was held that she continued to be in
desertion.
9 1978 HLR 262; Anil Kumar Banerjee v. Sefali Banerjee, AIR 1997 Cal 6 [LNIND 1996 CAL 175]: 1996 (2) Cal HN 306:
1997 Cal WN 159: 1997 Marri LJ 132.
1 Roi (Bari) Stree v. Rassinga Naik, AIR 1935 Mad 541 [LNIND 1934 MAD 378]: ILR 58 Mad 684.
2 AIR 1970 Bom 341 [LNIND 1969 BOM 22]: ILR (1969) Bom 1043 [LNIND 1969 BOM 22].
3 AIR 2000 MP 32 : 1999 (4) Civ LJ 161: 1999 (2) MPLJ 212 : 2000 (1) Marri LJ 550.
4 The contrary view, the so-called objective view, holds that whatever be the conduct of the husband, he will not be guilty
of desertion unless intention to desert is proved. See, for instance, Boyd v. Boyd, (1938) 4 All ER 181 . In this case the
husband served a jail term for incest. The wife forgave him and resumed cohabitation. Again, he was convicted for
indecent assault on a girl of 13 years. On his release he went to live in the matrimonial home. But wife refused to have
him and sued for divorce on the ground of husband’s desertion. Rejecting her petition, the court said “the facts did not
establish a case of constructive desertion. It is essential in a case of constructive desertion, to prove an intention on the
part of the party charged with desertion to bring the cohabitation to an end”.
1 AIR 1988 Del 222 [LNIND 1987 DEL 143]: (1987) 6 Reports 201: (1987) 2 Cur LJ (Civ and Cri) 20: 1988 Mat LR 235.
2 Crawford v. Crawford, (1956), p. 195.
3 Hall v. Hall, (1962) 1 WLR 1246 : (1962) 3 All ER 518.
4 Slon v. Slon, (1969), p. 122.
5 Dickinson v. Dickinson,(1889) 62 L 330; Koch v. Koch, (1899), p. 221.
6 Balker v. Balker, (1945), p. 33.
 Page 117 of 140
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7 Winnan v. Winnan, (1949), p. 174.

8 Lachman Uttamchand Kriplani v. Meena, AIR 1964 SC 40 [LNIND 1963 SC 187]: 66 Bom LR 297: (1964) 4 SCR 331
[LNIND 1963 SC 187], per Subba Rao, J. (as he then was).
9 Clause (ii) of section 2.
1 AIR 1964 SC 40 [LNIND 1963 SC 187]: 66 Bom LR 297: (1964) 4 SCR 331 [LNIND 1963 SC 187].
2 See also Tara Chard v. Narain Devi, AIR 1976 P&H 300 : 77 Punj LR 819: 1975 Hindu LR 435; Bhavna Adwani v.
Manohar Adwani, AIR 1992 MP 105 [LNIND 1991 MP 74]: 1992 (2) Civ LJ 237: 1992 MPLJ 40 : 1991 Mat LR 268.
3 Paras Diwan, Modern Hindu Law, (1987), 130.
1 AIR 1976 P&H 300 : 77 Punj LR 819: 1975 Hindu LR 435.
2 AIR 1979 P&H 162 : 1979 Hindu LR 118: 81 Punj LR 113: 1979 Marri LJ 286.
1 AIR 1946 Pat 467 : 228 IC 198: 13 BR 153.
2 AIR 1959 Ker 151 [LNIND 1958 KER 192]: 1958 Ker LT 1042: 1958 Cr LJ 1129.
3 AIR 2013 Ker 54 [LNIND 2012 KER 609]: 2013 (2) DMC 607: 2013 (2) Hindu LR 93.
4 AIR 1941 Lah 167 : 194 IC 567.
1 AIR 1946 Sind 48 : 224 IC 6.
2 Manak Khan v. Mulkhan Bano, AIR 1941 Lah 167 : 194 Ind Cas 567; Satgunj v. Rahmat Dil Murad, AIR 1946 Sind 48 :
ILR (1945) Karachi 327: 224 Ind Cas 6.
3 AIR 1976 Kant 200 [LNIND 1976 KANT 48]: (1976) 1 Kant LJ 427: ILR (1976) Kant 1008 : 1976 Hindu LR 651.
1 Najimunnisa v. Sarajuddin, AIR 1946 Pat 467 : 228 IC 198; Dastgir v. Sarifunnia, AIR 1953 Mys 145 : (1953) Mys 13:
31 Mys LJ 101.
2 AIR 1944 All 23 : ILR 1944 All 27 : 1943 All LJ 540.
3 Allahabad High Court followed this view in Shamin Fatima v. Ahmed Ullah Khan, AIR 1947 All 3 : 1946 All WR (HC)
417; Rabia Khatoon v. Mohd. Mukhtar Ahmad, AIR 1966 All 548 : 1966 All LJ 182: (1966) 1 All 659.
4 AIR 1951 Nag 375 : 1951 NLJ 584.
5 Amir Mohd. v. Mst. Bushra, AIR 1956 Raj 103 [LNIND 1955 RAJ 111]: 1956 Raj LW 197.
6 Fazl Md. v. Umatur Rahim, AIR 1949 Pesh 7 . Earlier in Said Ahmed v. Sultan Bibi, AIR 1943 Pesh 73 : 209 IC 248, it
has taken a contrary view.
7 Nuruddin v. Masuda, PLD 1957 Dacca 242.
8 AIR 1942 Lah 92 : 44 Pun LR 69: 199 IC 847.
9 The Lahore High Court had reversed this view in Akbari Begum v. Zafar Hussain, AIR 1942 Lah 92 : 44 Pun LR 69: 199
IC 847; Umat-ul-Hafiz v. Talib Hussain, AIR 1945 Lah 56 : 46 Punj LR 343.
10 AIR 1950 Sind 8 : Pak Cas 1950 Sind 18.
1 Earlier in Mt. Khatijan v. Abdulla, AIR 1943 Sind 65 : ILR (1942) Karachi 535, the court took a different view.
2 PLD (1952) 2 Lah 59.
3 PLD (1967) SC 97.
4 AIR 1950 Sind 8 : Pak Cas 1950 Sind 18.
5 1970 KLT 477 [LNIND 1970 KER 78]: AIR 1971 Ker 261 [LNIND 1970 KER 78]: 1970 Ker LR 386.
6 1983 KLJ 610 : AIR 1983 Ker 283 [LNIND 1983 KER 167]: 1983 KLT 787.
7 Ittoochalil Meethal Moossa v. Pachiparambath Meethal Fathimas, 1983 KLJ 610 (615): AIR 1983 Ker 283 [LNIND 1983
KER 167]: 1983 KLT 787, per Bal Krishana Menon, J.
8 1983 Survey 335 (Indian Law Institute).
9 Noor Bibi v. Pir Bux, AIR 1950 Sind 8 : Pak Cas 1950 Sind 18(Reviewed earlier).
10 A. Yousuf Rawther v. Sowramma, 1970 KLT 477 [LNIND 1970 KER 78]: AIR 1971 Ker 261 [LNIND 1970 KER 78]:
1970 Ker LR 386.
11 The cases of Lahore, Allahabad & Peshawar Courts reviewed earlier.
1 Satgunj v. Rahmat Dil Murad, AIR 1946 Sind 48 : ILR (1945) Karachi 327: 224 Ind Cas 6.
 Page 118 of 140
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2 AIR 1941 Sind 23 .

3 AIR 1953 Mys 145 : (1953) Mys 13: 31 Mys LJ 101.
4 Satgunj v. Rahmat Dil Murad, AIR 1946 Sind 48 : ILR (1945) Karachi 327: 224 Ind Cas 6; Manak Khan v. Mulkhan
Bano, AIR 1941 Lah 167 : 194 IC 567.
5 Soniram Jeetmal v. R.D. Tata, AIR 1927 PC 156 : 54 Ind App 265; Tasliman Bibi v. Abdul Latif, AIR 1936 Cal 97 : ILR
63 Cal 726.
1 See Said Ahmad Jan v. Sultan Bibi, AIR 1943 Pesh 73 : 1943 Pesh LJ 73: 209 IC 248; Munnawarbai v. Sabir, 1971
MPLJ (Notes) 23; Sanjan v. Azara, AIR 2013 Ker 180 [LNIND 2013 KER 243].
2 (1964), p. 133.
1 Lilley v. Lilley, (1960), p. 158; Tickle v. Tickle, (1968) 1 WLR 937.
2 (1957) Times Feb 22.
3 Young v. Young, (1964), p. 152; Buchler v. Buchler, (1947) 1 WLR 754 ; Thaday v. Thaday, (1964), p. 181; Ogden v.
Ogden, (1969) 1 WLR 1425.
4 Fisk v. Fisk, (1920) 122 LT 802.
5 Butland v. Butland, (1913) 29 LT 704.
6 Timmins v. Timmins, (1953) 2 All ER 187.
7 Glenister v. Glenister, (1945) 1 All ER 513; Williams v. Williams, (1963) 2 All ER 994; Beer v. Beer, (1947) 2 All ER
711.
8 Holbern v. Holbern, (1947) 1 All ER 32.
9 AIR 1972 SC 459 [LNIND 1971 SC 615]: (1972) 1 SCC 1 [LNIND 1971 SC 615]: (1972) 2 SCR 657 [LNIND 1971 SC
615].
1 G. v. G., (1930), p. 72.
2 Perry v. Perry, (1964) 1 WLR 91.
3 Powell v. Powell,(1957) Times Feb 22.
4 Bejoy Daw v. Aloka Daw, AIR 1969 Cal 477 [LNIND 1969 CAL 20]: 74 CWN 624 (DB).
5 Samitran Devi v. Suba Ram, AIR 1961 Punj 161 : ILR (1960) 2 Punj 112.
6 Devi Singh v. Sushila Devi, AIR 1972 Raj 303 : 1972 Raj LW 447 : ILR (1972) 22 Raj 655 .
7 Mohindra Pal Singh v. Kulwant Kaur, 1976 HLR 467.
8 Pushpa Rani v. Krishan Lal, AIR 1982 Del 107 : 1982 Marri LJ 140: 1982 Hindu LR 238 : 1982 Raj LR 268.
9 P. Indira Devi v. Kumaran, AIR 1982 Ker 78 [LNIND 1981 KER 176]: 1981 Ker LJ 739: 1982 Hindu LR 112.
10 Vadranama v. Krishnama, (1970) 1 AWR 13; Suresh Kumar Gulati v. Suman Gulati, AIR 1983 All 225 : (1982) 1 DMC
398; Sukhama Devi v. Niranjan Singh, AIR 1983 Del 469 [LNIND 1983 DEL 147]: (1983) 2 DMC 18: (1983) 5 DRJ 178
[LNIND 1983 DEL 147]: 1983 Marri LJ 417.
11 (1953) 1 WLR 708.
12 See also Bosley v. Bosley, (1958) 1 WLR 645.
13 (1939) 2 All ER 779.
1 See also Hall v. Hall, (1960) 1 WLR 52.
2 (1953) 1 WLR 1182.
3 Suresh Kumar Gulati v. Suman Gulati, AIR 1983 All 225 : (1982) 1 DMC 398.
4 AIR 1983 Del 469 [LNIND 1983 DEL 147]: (1983) 2 DMC 18: (1983) 5 DRJ 178 [LNIND 1983 DEL 147]: 1983 Marri LJ
417.
5 Harriman v. Harriman, (1909) p. 123: 78 LJP 62; Robinson v. Robinson, (1919) p. 352: 88 LJ P 126.
6 Lawson v. Lawson, (1955) 1 All ER 341 : (1955) 1 WLR 200.
7 Harvey v. Harvey, (1955) 3 All ER 772.
8 Hall v. Hall, (1960) 1 All ER 91.
9 Papadoponlos v. Papadoponlos, (1936), p. 108; Joseph v. Joseph, (1953) 2 All ER 710.
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1 Kako w/o Ajit Singh v. Ajit Singh, AIR 1960 Punj 328 : 62 Punj LR 67: ILR (1959) Punj 2211.
2 Shakuntala v. Om Prakash, AIR 1981 Del 53 : 1981 Mad LR 211: (1980) 2 Del 1609; Narayan Roy v. Jamuna Dey
(Roy), AIR 2010 Gau 75 [LNIND 2010 GAU 180]: 2010 AIHC 739: 2010 (2) Marri LJ 270(NOC); Sanjay Kumar v.
Pratima Devi, AIR 2010 Pat 96 : 2010 (3) Civ LJ 184: 2011 (1) DMC 277; Manoj Kumar Tripathy v. Mayarani Praharaj,
AIR 2010 Ori 131 [LNIND 2010 ORI 20]: 2010 (91) All Ind Cas 814: 2010 (109) Cut LT 529.
3 Lily Saini v. Nand Kishore Saini, AIR 2014 Del 190 : 2014 (213) DLT 145.
1 AIR 2002 SC 591 [LNIND 2002 SC 7]: (2002) 1 DMC 177: (2002) 2 SCC 73 [LNIND 2002 SC 7].
2 (2002) 10 SCC 478.
1 (1952) 1 All ER 1076.
2 Perry v. Perry, (1952) 1 All ER 1076 : 1952 P. 203, per Hadson, L.J.
3 Frazer v. Frazer, (1969) 1 WLR 1787.
4 AIR 1957 SC 176 [LNIND 1956 SC 82]: 59 Bom LR 323: 1956 SCR 838 [LNIND 1956 SC 82].
1 Parkinson v. Parkinson,(1959) The Times April 14; Storey v. Storey, (1965) 1 All ER 1052.
2 AIR 1966 HP 70 [LNIND 1966 HP 1]: 1966 Cr LJ 1438.
3 Hall v. Hall, (1960) 1 All ER 91.
4 (1951), p. 413.
5 See also Frazer v. Frazer, (1960) 1 WLR 1787 .
6 Pratt v. Pratt, (1939) AC 417 : (1939) 3 All ER 437 : 161 LT 49.
7 (1965) 1 All ER 1043.
1 Dunn v. Dunn, (1967), p. 217; Pratt v. Pratt, (1939) AC 417 : (1939) 3 All ER 437 : 161 LT 49; Fletcher v. Fletcher,
(1945) 1 All ER 582; Slowson v. Slowson, (1942) 167 LT 260.
3 (1948), p. 277.
4 Nitu alias Asha v. Krishan Lal, AIR 1990 Del 1 [LNIND 1989 DEL 125]: (1990) 1 HLR 571: (1989) II DMC 43.
1 Bowron v. Bowron, (1925), p. 187; Edwards v. Edwards, (1948), p. 126.
2 Ogden v. Ogden, (1969) 1 WLR 1425.
3 Ogden v. Ogden, (1969) 1 WLR 1425 . See also Edwards v. Edwards, (1948), p. 126.
4 Sifton v. Sifton, (1939), p. 221.
5 Section 2(4).
6 Richard v. Richard, (1952), p. 307.
1 Herod v. Herod, (1939), p. 11.
2 Bipinchandra v. Prabhavati, AIR 1957 SC 176 [LNIND 1956 SC 82]: 1956 SCR 838 [LNIND 1956 SC 82]; Lachman
Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40 [LNIND 1963 SC 187]: (1965) 1 SCA 310 [LNIND 1963 SC
187]: (1964) 4 SCR 331 [LNIND 1963 SC 187]; Mohinder v. Harbans, AIR 1992 P&H 8 : (1991) II DMC 411: (1991) 2
Cur LJ 215.
3 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
4 AIR 1986 MP 218 [LNIND 1985 MP 235]: (1987) 1 HLR 255.
5 Sukumar Mukherjee v. Tripti Mukherjee, AIR 1992 Pat 32 : 1991 (2) BLJ 524: 1991 (2) BLJR 1365 : 1992 Mat LR 25.
6 AIR 1990 Ker 151 [LNIND 1989 KER 23]: (1989) 1 KLT 509 [LNIND 1989 KER 23]: (1989) 1 DMC 505.
7 Durga Prasanna Tripathy v. Arundhati Tripathy, AIR 2005 SC 3297 [LNIND 2005 SC 626]: 2005 AIR SCW 4045: JT
2005 (7) SC 596 [LNIND 2005 SC 626]: (2005) 7 SCC 353 [LNIND 2005 SC 626]: 2005 (5) Supreme 766.
8 Section 13(1)(ia) and section 10.
9 Section 27(d) and section 23(i).
10 Section 32(e).
1 Section 34.
2 Para 2 of section 10. Position has changed after coming into force the Indian Divorce (Amendment) Act, 2001.
 Page 120 of 140
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3 Section 22.
4 AIR 1989 Cal 1 [LNIND 1988 CAL 235]: (1988) 2 Cal LJ 156 [LNIND 1988 CAL 235]: (1988) 2 Cal HN 153: (1988) 93
CWN 231, Prem Prakash Rubin v. Sarla Rubin, AIR 1989 MP 326 [LNIND 1989 MP 14]: 1989 Jab LJ 573: 1989 MPLJ
571 : 1990 (1) Civ LJ 128 (SB).
5 Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939.
6 Durga Prasanna Tripathy v. Arundhati Tripathy, (2005) 7 SCC 353 [LNIND 2005 SC 626]: AIR 2005 SC 3297 [LNIND
2005 SC 626]: 2005 AIR SCW 4045.
7 Suman Kapur v. Sudhir Kapur, AIR 2009 SC 589 [LNIND 2008 SC 2191]: (2009) 1 SCC 422 [LNIND 2008 SC 2191]:
(2008) 15 SCR 972 : JT 2008 (12) SC 70 [LNIND 2008 SC 2191]: (2008) 14 SCALE 404 [LNIND 2008 SC 2191].
8 Subhash Chandra v. Sandhya Das, AIR 2009 (NOC) 498 Cal.
1 Soma Chowdhury v. Pradip Kumar Chowdhury, AIR 2009 Cal 63 [LNIND 2008 CAL 1447]: 2009 AIHC 297 (NOC):
2009 (1) Cal HN 282: 2009 (1) ICC 265.
2 Section 10(x) of the Divorce Act, 1869.
1 Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939.
2 Section 1(2)(b), Matrimonial Causes Act, 1973. Although the language of the clause is simple and easy to understand
[per Dunn, J., in Livingstone Stallard v. Livingstone Stallard, (1974) Fam 47], it has caused some problems of
interpretation. Two things are to be established: (i) behaviour of the respondent, (ii) which is such that the petitioner
cannot be reasonably expected to live with him or her. [Andrews v. Andrews, (1974) 3 All ER 643 ]. The abbreviation
“unreasonable behaviour” is unfortunate because it is not the behaviour that needs to be unreasonable but the
expectation of cohabitation. This requirement would mean the detailing of specific behaviour, i.e., particulars of
individual facts of behaviour making it unreasonable for him to live with the respondent. Thus, in Livingstone Stallard
(cited above) the Court had to consider whether the parties’ method of washing their underwear constituted an
unreasonable behaviour. This would mean that the pleading would be prolix. [Thus in Griffiths v. Griffiths,(1974) I WLR
350, the pleadings covered 66 pages]. Then, is the test of “reasonable” objective or subjective? (Archard v. Archard,
The Times, April 19, 1972). If the test is objective then respondent’s behaviour should be of some degree of gravity. If
not, a respondent “whose behaviour is beyond reproach by any standard other than the petitioner’s would be liable to
be divorced”, unless the court could be satisfied that the marriage has not broken down, [Wachtal v. Wachtal, (1973)
Fam 72; Pheasant v. Pheasant, (1972) Fam 202]. See also Indu Bala Toppo v. Francis Xavier Toppo, (2001) II DMC
631 (DB): AIR 2002 Del 54 [LNIND 2001 DEL 1250]: 2002 AIHC 808: 2001 (2) DMC 631 (SB).
1 (2002) 2 SCC 296 [LNIND 2002 SC 22]: AIR 2002 SC 576 [LNIND 2002 SC 22]: 2002 AIR SCW 162: JT 2002 (1) SC
89 [LNIND 2002 SC 22]: 2002 (1) SCJ 245; Also see Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal,
AIR 2012 SC 2586 [LNIND 2012 SC 374]: 2012 AIR SCW 4300: (2012) 7 SCC 288 [LNIND 2012 SC 374].
2 Ravi Kumar v. Julmi Devi, (2010) 4 SCC 476 : AIR 2010 SC (Supp) 544: 2010 AIR SCW 1564.
3 (2000) 10 SCC 540.
4 U. Suvetha v. State, (2009) 6 SCC 757 [LNIND 2009 SC 1156]: AIR 2009 SC (Supp) 1451: 2009 AIR SCW 3491.
5 Section 22. See Prem Prakash Rubin v. Sarla Rubin, AIR 1989 MP 326 [LNIND 1989 MP 14]: 1989 Jab LJ 573: 1989
MPLJ 571 : 1990 (1) Civ LJ 128 (SB); M.R.G.L.J. Vailshery v. Ramola Vailshery, AIR 1997 Kant 341 [LNIND 1997
KANT 249]: ILR 1998 Kant 1874: 1997 (3) Kant LJ 531 : 1998 (1) Marri LJ 245.
6 A. v. B., AIR 2001 Ker 71 : (2001) II DMC 35: 2001 (1) Hindu LR 434.
7 K.A. Philip v. Susan Jacob, AIR 2001 Ker 195 [LNIND 2001 KER 102]: ILR (2001) 2 Ker 339 : 2001 (1) Ker LT 890:
2001 (2) Marri LJ 660.
8 Prem Prakash Rubin v. Sarla Rubin, AIR 1989 MP 326 [LNIND 1989 MP 14]: 1989 Jab LJ 573: 1989 MPLJ 571 : 1990
(1) Civ LJ 128 (SB).
9 AIR 1997 Del 345 [LNIND 1997 DEL 382]: 1997 (67) DLT 263 [LNIND 1997 DEL 382]: 1997 (42) DRJ 73 [LNIND 1997
DEL 382]: 1998 (1) Marri LJ 178.
10 AIR 1997 Del 346 : 1997 (67) DLT 335: 1997 (42) DRJ 85 [LNIND 1997 DEL 383]: 1998 (1) Marri LJ 36.
1 Satish Sitole v. Ganga, AIR 2008 SC 3093 [LNIND 2008 SC 1379]: (2008) 7 SCC 734 [LNIND 2008 SC 1379]: (2008)
3 SCC (Cri) 225 [LNIND 2008 SC 1379].
1 AIR 1979 All 316 .
2 (1999) 7 SCC 311 [LNIND 1999 SC 673]: AIR 1999 SC 3070 [LNIND 1999 SC 673]: 1999 AIR SCW 3008.
1 Padma v. Parma Ram, AIR 1959 HP 37 ; V. Bhagat v. Mrs. D. Bhagat, (1944) 1 SCC 337 : (1993) II DMC 569: AIR
1994 SC 710 [LNIND 1993 SC 972].
2 Sukumar Mukherjee v. Tripti Mukherjee, (1991) 2 BLJR 1365 : AIR 1992 Pat 32 : 1992 (2) Civ LJ 56.
 Page 121 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

3 Then “cruelty” was a ground of judicial separation alone and not of divorce under section 10 of the Act. Then cruelty’s
formulation was, “has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of
petitioner that it will be harmful or injurious for the petitioner to live with the other party”.
4 Law Commission, 52nd Report.
1 G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SCC 296 [LNIND 2002 SC 22]: AIR 2002 SC 576 [LNIND 2002 SC 22]:
2002 AIR SCW 162: JT 2002 (1) SC 89 [LNIND 2002 SC 22]: 2002 (1) SCJ 245.
2 Seema v. Nilesh Chauhan, AIR 2006 MP 46 : 2006 AIHC 1334: 2006 (2) DMC 793 : 2006 (2) Marri LJ 43.
3 AIR 2002 SC 591 [LNIND 2002 SC 7]: 2002 AIR SCW 182: (2002) 2 SCC 73 [LNIND 2002 SC 7].
4 Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 [LNIND 2002 SC 428]: 2002 AIR SCW 2886: JT 2002 (5) SC 159
[LNIND 2002 SC 428]: (2002) 5 SCC 706: 2002 (4) Supreme 596.
5 1978 HLR 594.
1 1984 Mah LJ 576 [LNIND 1984 BOM 126]: AIR 1984 Bom 413 [LNIND 1984 BOM 126]: 1984 Hindu LR 629 (FB).
2 G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SCC 296 [LNIND 2002 SC 22]: AIR 2002 SC 576 [LNIND 2002 SC 22]:
2002 AIR SCW 162: JT 2002 (1) SC 89 [LNIND 2002 SC 22]: 2002 (1) SCJ 245.
3 A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 [LNIND 2004 SC 1202]: 2005 AIR SCW 163: JT 2004 (10) SC 235
[LNIND 2004 SC 1202]: (2005) 2 SCC 22 [LNIND 2004 SC 1202]: 2005 (2) SCJ 189.
4 AIR 2006 SC 1675 [LNIND 2006 SC 192]: 2006 AIR SCW 1550: (2006) 4 SCC 558 [LNIND 2006 SC 192]: 2006 (3)
SCJ 673: 2006 (2) Supreme 627.
1 P. Jayaram v. P. Sudha Laxmi, AIR 2014 AP 95 [LNIND 2013 AP 950]: 2014 (2) Andh LD 360: 2014 (2) Cur CC 468.
2 (1897) AC 303 .
3 (1952) AC 525 : (1952) 1 All ER 875 : (1952) 1 TLR 833 (HL).
4 (1963) 2 All ER 966 : 1964 AC 644: (1963) 3 WLR 176.
1 (1969) 1 WLR 393 : (1969) 2 All ER 658.
2 (2005) 2 SCC 22 [LNIND 2004 SC 1202]: AIR 2005 SC 534 [LNIND 2004 SC 1202]: 2005 AIR SCW 163.
3 Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591 [LNIND 2002 SC 7]: 2002 AIR SCW 182: (2002) 2 SCC 73
[LNIND 2002 SC 7].
1 (1952) AC 525 : (1952) 1 All ER 875: (1952) 1 TLR 833 (HL).
2 (1963) 2 All ER 994: 1964 AC 698: (1963) 3 WLR 215.
3 (1963) 2 All ER 966: 1964 AC 644 : (1963) 3 WLR 176.
4 (1810) 1 Hag Con 453.
1 AIR 1961 Punj 125 : 63 Punj LR 377.
2 AIR 1967 Bom 80 [LNIND 1965 BOM 23]: 67 Bom 837: ILR 1966 Bom 482 [LNIND 1965 BOM 23].
3 Suman Kapur v. Sudhir Kapur, AIR 2009 SC 589 [LNIND 2008 SC 2191]: 2008 AIR SCW 7730: (2009) 1 SCC 422
[LNIND 2008 SC 2191]: (2008) 14 SCALE 404 [LNIND 2008 SC 2191].
4 Arati Mondal v. Bhupati Mondal, AIR 2009 Cal 200 [LNIND 2009 CAL 250]: 2009 AIHC 701 (NOC): 2009 (3) Cal HN
17: 2009 (4) ICC 471.
1 Jamieson v. Jamieson, (1952) AC 525 : (1952) 1 All ER 875 : (1952) 1 TLR 833 (HL). See also Indian case, Gopal v.
Mithilesh, AIR 1979 All 316 .
2 Cooper v. Cooper, (1954) 3 All ER 415 : (1954) 3 WLR 867.
3 (1954) 3 All ER 446.
4 AIR 1967 Bom 80 [LNIND 1965 BOM 23]: 67 Bom 837: ILR 1966 Bom 482 [LNIND 1965 BOM 23].
1 AIR 1962 Ori 50 [LNIND 1960 ORI 9].
2 See also Devakumar v. Thilagavathy, AIR 1995 Mad 116 [LNIND 1994 MAD 677]: 1995 (21) Marri LJ 234.
3 AIR 1979 All 316 .
1 AIR 1987 Del 52 [LNIND 1986 DEL 76]: 1986 Mah LJ 438: (1986) 2 Hindu LR 322.
1 AIR 1961 Punj 521 : 63 Punj LR 446.
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Chapter VII FAULT GROUNDS OF DIVORCE

2 Saptmi v. Jagdish, (1969) 87 CWN 520 . Also see Sayal v. Sarla, 63 Punj LR 377: AIR 1961 Punj 125 ; Jyotish
Chandra v. Meera, AIR 1970 Cal 266 [LNIND 1969 CAL 231], which are also cases of physical violence. Harbhajan
Singh v. Amarjeet Kaur, AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470 (wife slapping
the husband).
3 A.P. Marry v. K.G. Raghawan, AIR 1979 MP 40 [LNIND 1978 MP 32]: 1979 MPLJ 44 [LNIND 1978 MP 32]: 1979 Jab
LJ 390 (a case under the Special Marriage Act, 1954).
4 Kaushalya Devi v. Masat Ram, AIR 1981 HP 63 : 1981 HLR 442: 1981 Marri LJ 266.
5 Lalloo v. Bachi, AIR 1986 Raj 49 : (1985) 2 DMC 23: (1985) 2 Cur CC 426: (1985) 2 Hindu LR 191; Rani Devi v.
Hussan Lal, AIR 1988 P&H 65 : (1987) 8 Reports 123.
6 AIR 1987 Del 52 [LNIND 1986 DEL 76]: 1986 Mah LJ 438: (1986) 2 Hindu LR 322.
7 AIR 1987 Del 63 [LNIND 1986 DEL 158]: (1986) 11 DRJ 135 [LNIND 1986 DEL 158]: 1986 Mat LR 256.
8 1978 HLR 339.
1 Hulens v. Hulens, (1823) 162 ER 581; Kirkman v. Kirkman, (1807) 11 ER 598.
2 (1801) 161 ER 581.
3 (1953) 3 All ER 769.
4 Renu v. Rakesh Kannojia, AIR 2013 Uttra 1 : 2013 (1) DMC 782: 2013 (2) Hindu LR 193.
5 Suman Kapur v. Sudhir Kapur, AIR 2009 SC 589 [LNIND 2008 SC 2191]: 2008 AIR SCW 7730: (2009) 1 SCC 422
[LNIND 2008 SC 2191]: (2008) 14 SCALE 404 [LNIND 2008 SC 2191].
6 39 Bom LR 845.
7 AIR 1996 Raj 23 : 1996 (1) Civ LJ 367: 1995 (3) Cur CC 488: 1996 Marri LJ 111.
1 AIR 1947 All 16 : 1947 ALJ 356: 230 IC 239.
2 (1918) 40 All 332.
3 79 IC 999.
1 108 IC 133.
2 Khacheru v. Khairunissa, AIR 1952 All 638 [LNIND 1950 ALL 214]: 1950 All LJ 746.
1 S. Hanumantha Rao v. S. Ramani, (1999) 3 SCC 620 : AIR 1999 SC 1318 : 1999 AIR SCW 1012.
2 Sadhana Srivastava v. Arvind Kumar Srivastava, AIR 2006 All 7 : 2006 AIHC 448: 2005 All LJ 3609: 2005 (61) All LR
268.
3 Radhika Gupta v. Darshan Gupta, (2005) 11 SCC 479.
1 Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 [LNIND 2002 SC 428]: (2002) 5 SCC 706: 2002 AIR SCW 2886.
2 Arati Mondal v. Bhupati Mondal, AIR 2009 Cal 200 [LNIND 2009 CAL 250]: 2009 AIHC 701 (NOC): 2009 (3) Cal HN
17: 2009 (4) ICC 471.
3 AIR 1970 Mys 232 .
5 Harbhajan Singh v. Amarjeet Kaur, AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470.
1 AIR 1986 Raj 13 : (1985) 2 DMC 85: (1985) 2 Hindu LR 301.
2 AIR 2002 SC 2582 [LNIND 2002 SC 428]: 2002 AIR SCW 2886: JT 2002 (5) SC 159 [LNIND 2002 SC 428]: (2002) 5
SCC 706: (2002) 5 SCALE 165 [LNIND 2002 SC 428].
3 Siddagangiah v. Lakshamma, AIR 1968 Mys 115 : (1967) 2 Mys LJ 185: 11 Law Rep 486. See also Katari Subba Rao
v. Katari Seetha Mahalakshmi, AIR 1994 AP 364 [LNIND 1994 AP 175]: 1994 (2) Andh LT 723 [LNIND 1994 AP 175]:
1994 (2) Hindu LR 185 : 1995 (21) Marri LJ 13; Leela Devi v. Suresh Kumar, AIR 1994 Raj 128 : 1994 Marri LJ 521:
1994 Mat LR 192.
4 Vinita Saxena v. Pankaj Pandit, AIR 2006 SC 1662 [LNIND 2006 SC 191]: 2006 AIR SCW 1585: (2006) 3 SCC 778
[LNIND 2006 SC 191]: 2006 (3) SCJ 163: 2006 (2) Supreme 662.
1 Livingstone-Stallard v. Livingstone-Stallard, (1974) Fam 47.
2 Prakash Chand Sharma v. Vimlesh, (1995) Supp 4 SCC 642.
3 AIR 2013 SC 415 [LNIND 2012 SC 800]: 2013 (1) DMC 91: 2012 (2) Hindu LR 682.
4 AIR 1965 All 280 .
 Page 123 of 140
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5 ILR (1970) Cal 272.

6 AIR 1984 Del 368 [LNIND 1984 DEL 70]: 1984 Raj LR 512.
7 See also Gurcharan Singh v. Waryam Kaur w/o Gurcharan Singh, AIR 1960 Punj 422 : 62 Punj LR 127; Santana
Banerjee v. Sachindra Nath Banerjee, (1990) 1 HLR 419: AIR 1990 Cal 367 [LNIND 1989 CAL 393]: (1990) 1 Cal LJ
53 [LNIND 1989 CAL 393]; Iqbal v. Pritam, AIR 1963 Punj 242 ; Madan Mohan Kohli v. Sarla Kohli, AIR 1967 P&H 397
: (1966) 68 Punj LR (D) 177; Mohinder Kaur v. Bhag Ram, AIR 1979 P&H 71 : 1979 Mat LR 194; Jaishree Mohan
Otavnekar v. Mohan Govind Otavnekar, AIR 1987 Bom 220 [LNIND 1986 BOM 386]: 1987 Mah LJ 160 [LNIND 1986
BOM 386]: (1987) 1 Hindu LR 395 : 1987 Mah LR 617; Somasekharan Nair v. Thankamma, AIR 1988 Ker 308 [LNIND
1987 KER 223]: 1987 Ker LJ 810: (1990) 1 HLR 383; Kiran Mandal v. Mohini Mandal, AIR 1989 P&H 310 : (1989) 95
Punj LR 553: (1989) 2 DMC 104 : 1990 Marri LJ 80; Pushpa Datt Mishra v. Archana Mishra alias Premvati Choubey,
AIR 1992 MP 260 [LNIND 1991 MP 73]: 1992 (2) Hindu LR 245: 1992 MPLJ 466 : 1992 Mat LR 240; Leela Devi v.
Suresh Kumar, AIR 1994 Raj 128 : 1994 Marri LJ 521: 1994 Mat LR 192; Heema Devi v. Arvind Kumar, AIR 2009 HP
83 [LNIND 2009 HP 38]; Shobha Mhatardev Lomte v. Mhatardev Tukaram Lomte, AIR 2009 Bom 160 [LNIND 2009
AUG 249]: 2009 (5) AIR Bom R 278: 2009 (6) All MR 365; Mamta Dubey v. Rajesh Dubey, AIR 2009 All 141 : 2009
AIHC 3034: 2009 (4) ALJ 730; Anita Jain v. Rajendra Kumar Jain, AIR 2010 Raj 56 [LNIND 2009 RAJ 243]: 2010 (2)
DMC 158: 2010 AIHC 644 (NOC); Hemlata Sonwani v. Dr. K.R. Sonwani, AIR 2010 Chhat 77 : 2010 (2) Cg LJ 318:
2010 (2) MPHT 49; Jayanti Deb v. Manas Kumar, AIR 2015 Tri 25 ; Geeta Sharma v. Anil Kumar Sharma, AIR 2015
P&H 16 ; Praveena Tank v. Arvind Kumar Tank, AIR 2015 Raj 7 .
1 Pushpa Rani v. Krishan Lal, AIR 1982 Del 107 : 1982 Marri LJ 140: 1982 Hindu LR 238 : 1982 Raj LR 268 . See also
Harendra Nath v. Suprora Burman, AIR 1989 Cal 120 [LNIND 1988 CAL 211]: (1989) 1 HLR 228: 93 CWN 102.
2 Paras Ram v. Kamlesh, AIR 1982 P&H 60 : 1982 Marri LJ 241: (1982) 1 DMC 184 : ILR (1982) 2 P&H 33 . See also
Vimla Ladkani v. Dr. Chandra Prakash Ladkani, AIR 1996 MP 86 : (1996) 1 DMC 142: 1996 Marri LJ 625.
3 AIR 1986 Cal 150 [LNIND 1985 CAL 164]: (1985) 89 CWN 904: 1986 Mat LR 125: (1986) 2 Hindu LR 71.
4 AIR 1985 Guj 121 : 1984 Guj LH 939: 1985 (1) 26 Guj LR 119: 1985 Mat LR 326.
5 AIR 1985 P&H 199 : (1984) 2 DMC 466: 1985 Marri LJ 69.
6 AIR 1985 Del 221 [LNIND 1984 DEL 340]: (1985) 1 DMC 465: (1985) 1 Cur CC 136.
1 The Koran, XXIV, 6-9.
1 Kabil v. Madei, AIR 1938 Cal 631 ; Ayesha v. Abdool, (1934) 59 Cal LJ 466.
2 Kabil v. Madei, AIR 1938 Cal 631 ; Ayesha v. Abdool, (1934) 59 Cal LJ 466; Kalloo v. Mt. Imaman, AIR 1949 All 445 :
1949 Oudh WN 30.
3 Zafar v. Ummat-ul-Rehman, ILR (1949) 41 All 278 ; Khatijabai v. Umar, AIR 1928 Bom 285 .
4 Fakhree Jhan v. Mohammed, AIR 1929 Oudh 8 ; Tufail Ahmad v. Jamila Khatun, AIR 1912 All 570 (retraction should be
made before the commencement of the hearing); Rohima v. Fazil, AIR 1927 All 55 ; Shamsunnessa Khatun v. Mir
Abdul Mannaf, AIR 1940 Cal 95 : ILR (1940) 1 Cal 97 : 70 Cal LJ 289 (at any time before the close of evidence).
5 Ahmad Sulaiman v. Bai Fatma, AIR 1931 Bom 76 : ILR 55 Bom 160.
6 Maomedai v. Hazzarabai, AIR 1955 Bom 464 .
7 AIR 1949 All 445 : 1949 Oudh WN 30.
8 Nurjahan Bibi v. Md. Kajim Ali, AIR 1977 Cal 90 [LNIND 1976 CAL 214]: (1976) 2 Cal LJ 373 [LNIND 1976 CAL 214].
9 Kundan Lal v. Kanta Rani, 1979 MLR 352.
10 AIR 1973 Del 200 [LNIND 1973 DEL 55]: (1973) 75 Punj LR (D) 168.
1 AIR 1986 P&H 308.
2 Sirajmohmed Khan, Janmohamad Khan v. Hafizunnisa Yasin Khan, AIR 1981 SC 1972 [LNIND 1981 SC 384]: 1981
Cr LJ 1430: (1981) 4 SCC 250 [LNIND 1981 SC 384]: 1981 SCC (Cri) 829 [LNIND 1981 SC 384].
3 See also Atam Prakash v. Neelam, (1981) 2 DMC 43.
4 AIR 1976 Raj 1 [LNIND 1976 RAJ 83]: 1975 Raj LW 509: 1976 Hindu LR 140.
5 Watchel v. Watchel, (1972) 116 SJ 762.
6 Satya Narain v. Mamta, AIR 1997 Raj 118 : 1998 (1) DMC 23: 1997 Marri LJ 546: 1997 (1) Raj LW 647.
7 1978 HLR 304.
8 AIR 1984 Del 291 [LNIND 1983 DEL 316]: (1984) 2 DMC 262.
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1 Baker v. Baker, (1955) 3 All ER 193 : (1955) 1 WLR 1011 : 220 LT 164; Hall v. Hall, (1962) 1 WLR 1246 : (1962) 3 All
ER 518.
2 Ash v. Ash, (1972) Fam 135.
3 AIR 1986 P&H 383 ; Piyasa Ghosh v. Somnath Ghosh, AIR 2009 Cal 90 [LNIND 2009 CAL 811]: 2009 AIHC 406
(NOC): 2009 (1) Cal HN 491: 2009 (3) ICC 465(DB); Ranjit Kaur v. Jaswant Singh, AIR 2010 P&H 60 : 2010 (1) Hindu
LR 134: 2010 (1) Marri LJ 201.
4 Shyam Lata v. Suresh Kumar, AIR 1986 P&H 383 (386).
5 AIR 1986 Pat 362 : (1986) 2 HLR 36: (1986) 2 DMC 124; Imlesh v. Amit, AIR 2014 P&H 89 : 2014 (3) DMC 147;
Gurjinder Kaur v. Pritpal Singh, AIR 2014 P&H 91 : 2014 (3) DMC 53.
1 AIR 1985 All 253 [LNIND 1985 ALL 146]: (1985) 2 DMC 151: (1985) 11 All LR 552; Geeta Sharma v. Anil Kumar
Sharma, AIR 2015 P&H 16.
2 See also Krishna v. Alok Ranjan, AIR 1985 Cal 431 [LNIND 1984 CAL 156]: (1985) 2 DMC 191: 89 CWN 156; R.K.
Vijayappan Nair v. J. Ammini Amma, AIR 1997 Ker 170 [LNIND 1997 KER 30]: (1995) 3 Andh LT 534: (1996) 1 DMC
369.
3 Mithilesh Shrivastava v. Kiran, AIR 2012 Chh 21 .
4 AIR 1996 AP 104 [LNIND 1995 AP 386]: (1995) 3 Andh LT 534: (1996) 1 DMC 369.
5 AIR 1985 All 253 [LNIND 1985 ALL 146]: (1985) 2 DMC 151: (1985) 11 All LR 552; Gopal Sharma v. Ansuya Sharma,
AIR 2013 Raj 31 [LNIND 2012 RAJ 181]: 2013 (3) Cur CC 188.
6 AIR 1985 Cal 431 [LNIND 1984 CAL 156]: (1984) 1 Cal LJ 487 [LNIND 1984 CAL 156]: (1984) 2 Cal HN 34: (1985) 89
CWN 156; see also Parimi Mehar Seshu v. Parimi Nageswara Sastry, AIR 1994 AP 92 [LNIND 1993 AP 233]: 1993 (3)
Andh LT 489 [LNIND 1993 AP 233]: 1994 (1) DMC 417 : 1994 Mat LR 129; K. Srinivas Rao v. D.A. Deepa, AIR 2013
SC 2176 [LNIND 2013 SC 142]: 2013 AIR SCW 1396: (2013) 5 SCC 226 [LNIND 2013 SC 142]. [Section 1 Act applies
to Hindus living outside India but domesticated in India. Domicile in India saves the extra territorial jurisdiction. Sondur
Gopal v. Sondur Rajini, AIR 2013 SC 2678 [LNIND 2013 SC 650]: 2013 AIR SCW 4227: (2013) 7 SCC 426 [LNIND
2013 SC 650]].
1 AIR 1985 All 253 [LNIND 1985 ALL 146]: (1985) 2 DMC 151: (1985) 11 All LR 552.
2 Kawaljeet Kaur v. Parampal Singh, AIR 2014 P&H 107 : 2014 (4) Rec Civ R 150; Shikha Tamrakaar v. Rohit Kumar
Tamrakaar, AIR 2014 MP 24 [LNIND 2013 MP 102].
3 AIR 1995 SC 851 [LNIND 1995 SC 70]: (1995) 2 SCC 7 [LNIND 1995 SC 70]: 1995 AIR SCW 647; Kanchan Devi v.
Promod Kumar Mittal, AIR 1996 SC 3192 [LNIND 1996 SC 2375]: (1996) 8 SCC 90 [LNIND 1996 SC 2375]: 1996 AIR
SCW 1933.
4 AIR 1985 Del 76 [LNIND 1984 DEL 248]: (1985) 1 DMC 20: (1985) 1 Hindu LR 351 . See also Chanderkala Trivedi v.
Dr. S.P. Trivedi, (1993) 4 SCC 232 : (1993) 2 DMC 271 : (1993) 4 JT (SC) 644; Mamta Vaishnav v. Govinddas
Vaishnav, AIR 2012 Chhat 95 ; Ravindra Kumar Tiwary v. Anandi Tiwari, AIR 2012 Jhar 105 : 2012 (2) DMC 396: 2012
Mat LR 369.
1 1964 AC 644 : (1963) 2 All ER 966 : (1963) 3 WLR 176.
2 AIR 1971 Del 208 [LNIND 1970 DEL 252]: 73 Punj LR 169.
3 AIR 1959 Ker 75 [LNIND 1958 KER 50]: (1958) Ker 643: 1958 Ker LT 616 [LNIND 1958 KER 50].
4 Lalita Devi v. Radha Mohan, AIR 1976 Raj 6 : 1976 HLR 140: ILR (1976) 26 Raj 314 . See also Sunil Kumar v. Usha
w/o Sunil Kumar, AIR 1994 MP 1 [LNIND 1993 MP 112]: 1994 (1) Civ LJ 518: 1994 MPLJ 201 [LNIND 1993 MP 112]:
1994 Marri LJ 141.
5 AIR 1999 P&H 108 : ILR (1999) 2 P&H 24: 1999 (2) Marri LJ 52: 1999 (121) Punj LR 591.
1 AIR 1999 MP 108 [LNIND 1998 MP 304]: 1999 (3) Civ LJ 468: 1999 (2) Jab LJ 30 : 1999 (1) MPLJ 714 . Also see
Chiranjeevi v. Lavanya alias Sujatha, AIR 1999 AP 316 [LNIND 1999 AP 94]: 1999 (2) Andh LD 508: 1999 (2) Andh LT
493 [LNIND 1999 AP 94]: 1999 (2) Marri LJ 570.
2 AIR 2005 SC 3297 [LNIND 2005 SC 626]: 2005 AIR SCW 4045: JT 2005 (7) SC 596 [LNIND 2005 SC 626]: (2005) 7
SCC 353 [LNIND 2005 SC 626]: 2005 (6) SCJ 452; Jasminder Singh v. Prabhjinder Kaur, AIR 2008 P&H 13 ; Kamal
Gorai v. Menka Gorai, AIR 2008 Jhar 36 : 2008 (2) ALJ (NOC) 505: 2007 (3) AIR Jhar R 656: 2008 (61) All Ind Cas 862
(DB); Reebha Singh v. Dr. Ashok Kumar Singh, AIR 2008 Jhar 53 : 2008 (1) AIR Jhar R 539; Varalakshmi Charkha v.
Satyanarayana Charkha, AIR 2008 AP 134 [LNIND 2008 AP 162]: 2008 AIHC 503 (NOC): 2008 (4) ALJ (NOC) 930:
2008 (2) Andh LT 474 (DB); Deo Kumar Sah v. Anjali Kumari Sah, AIR 2009 Pat 4 [LNIND 2008 PAT 110]: 2009 AIHC
165 (NOC): 2009 (73) All Ind Cas 844: 2009 (1) Hindu LR 614.
3 AIR 2005 SC 534 [LNIND 2004 SC 1202]: 2005 AIR SCW 163: JT 2004 (10) SC 235 [LNIND 2004 SC 1202]: (2005) 2
SCC 22 [LNIND 2004 SC 1202]: 2005 (1) Supreme 626.
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4 AIR 2008 SC 3093 [LNIND 2008 SC 1379]: 2008 AIR SCW 5190: (2008) 7 SCC 734 [LNIND 2008 SC 1379]: (2008)
10 SCALE 54 [LNIND 2008 SC 1379]: 2008 (3) SCC (Cri) 225 [LNIND 2008 SC 1379]; Rajkumari v. Sonu
Vishwakarma, AIR 2014 MP 162 ; Binaben v. Kulinkumar Chandravadan Shah, AIR 2014 Guj 144 : 2014 (3) DMC 74:
2014 (2) Guj LR 1223; Rajesh Shivhare v. Archna Shivhare, AIR 2015 MP 22 [LNIND 2014 MP 37584].
5 Visnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254 [LNIND 2009 SC 488]: 2009 AIR SCW 2984: (2009) 6 SCC
379 [LNIND 2009 SC 488]: (2009) 3 SCALE 425 [LNIND 2009 SC 488].
6 Bhulu Rani Dey v. Rabi Dey, AIR 2012 Gau 128 [LNIND 2012 GAU 144]: 2012 (3) DMC 619: 2012 (5) Gau LR 696
[LNIND 2012 GAU 144].
7 Alka Bhaskar Bakre v. Bhaskar Satchidanand Bakre, AIR 1991 Bom 164 [LNIND 1990 BOM 18]: (1990) 2 Hindu LR
561: 1990 (2) Bom CR 388 [LNIND 1990 BOM 18]: 1990 Bom LR 255 [LNIND 1990 BOM 18]; Ajay Pal Singh v. Dr.
Rosy Singh, AIR 2012 Chh 69 .
1 Jyotish Chandra v. Meera, AIR 1970 Cal 266 [LNIND 1969 CAL 231]; Srikant Rangacharya Adya v. Anuradha, 1980
HLR 265: AIR 1980 Kant 8 [LNIND 1979 KANT 142]: (1980) 1 Kant LJ 101; Alka v. Dr. R.K. Gautam, AIR 1996 Del
276 [LNIND 1996 DEL 262]: 1996 (2) Civ LJ 619: 1996 (62) DLT 109 : 1996 (1) Hindu LR 640; Rama Kanta v.
Mohinder Laxmidas Bhandula, AIR 1996 P&H 98 : (1995) 2 HLR 315: 1996 Marri LJ 482.
2 AIR 1964 All 486 [LNIND 1964 ALL 8]: 1964 All WR (HC) 363.
3 AIR 1980 Kant 8 [LNIND 1979 KANT 142]: 1980 HLR 265: (1980) 1 Kant LJ 101.
4 Mohini Chawla v. Subhas Chander, AIR 2009 P&H 33.
5 (1965) 3 All ER 263.
6 (1964) 3 All ER 919.
7 (1966) 2 All ER 257 : (1966) 2 WLR 993 : 110 SJ 269.
1 Evans v. Evans, (1965) 2 All ER 489.
2 Mohini Chawla v. Subhash Chander Chawla, AIR 2009 P&H 33.
3 AIR 1973 Del 200 [LNIND 1973 DEL 55]: 75 PLR (DJ) 168.
4 AIR 1981 Del 53 : 1981 Mad LR 211: (1980) 2 Del 1609.
5 1981 Raj LR 271.
6 AIR 1987 Del 111 [LNIND 1986 DEL 46]: (1986) 1 DMC 464: (1986) 1 Hindu LR 627.
1 Sangeeta v. Hitesh Kumar, AIR 2013 Del 83 [LNIND 2013 DEL 101]: 2013 (1) DMC 706: 2013 (2) Hindu LR 151.
2 Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Del 135 [LNIND 1992 DEL 527]: 1993 (1) Civ LJ 615: 1993 Marri LJ
401: 1993 Raj LR 88; Sunil Kumar v. Usha w/o Sunil Kumar, AIR 1994 MP 1 [LNIND 1993 MP 112]: 1994 (1) Civ LJ
518: 1994 (2) CCC 196 : 1994 MPLJ 201 [LNIND 1993 MP 112] (resistance to sex not established).
3 Manu Smriti, V: 138
4 Baudhayana, 11, 16, 2; see also Manu Smriti, IX, 137-138; Vishnu, XV; Yajnavalkya, 1: 78.
5 Manu Smriti, IX: 16 runs: The one who tries to cross the hell with the help of bad sons obtains results similar to those
obtained by one who tries to across the river with the help of a seave.
6 Here the expression “secondary son” is used in contradistinction with the aurasa son.
7 Such as muta marriage, see Muslim law in Modern India, (1987), 44-45.
1 India began family planning as early as 1952, but it has progressed with faltering pace.
2 Under section 3(2) of the Act, a pregnancy may be medically terminated: (a) if its continuation would involve a risk to
the life of the pregnant woman or of grave injury to her physical and mental health; (b) if there is substantial risk that the
child to be born would suffer from such physical or mental abnormalities as to be seriously handicapped. It is also laid
down that in the following two cases there is a presumption that continuance of pregnancy constitutes a grave injury to
mental health: (i) where pregnancy is caused by rape; or (ii) where pregnancy is caused as a result of failure of any
device or method used by any married woman or her husband for the purpose of limiting the number of children.
3 Section 3(4)(a).
1 (1964) 3 All ER 919.
2 (1954) 3 All ER 59 : (1954) 1 WLR 1169.
3 (1955) All ER 305.
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4 See also Sheldon v. Sheldon, (1966) 2 All ER 257 : (1966) 2 WLR 993 : 110 SJ 269, wherein wife petitioned for divorce
on the ground of her husband’s cruelty. She averred that knowing full well her desire to have a child, he insisted on the
use of contraceptive device thereby denying her normal sexual intercourse and motherhood. The Court gave the verdict
of cruelty.
5 (1955) 2 All ER 311 : (1955) 1 WLR 531 : 1956 P 16; Prithvipal Singh v. Anita, AIR 2014 P&H 6.
1 AIR 2013 Ker 122 [LNIND 2012 KER 882]: 2013 (1) DMC 635: 2013 (2) Hindu LR 3.
2 See Kusum, Deprivation of Parenthood: Whether amounts to Matrimonial Cruelty, II MLJ 28 (1978).
1 AIR 1987 Del 86 [LNIND 1986 DEL 68]: (1986) 2 HLR 104: 1986 Marri LJ 375.
2 AIR 1983 P&H 252 : 1983 HLR 117: 1983 Marri LJ 153.
3 AIR 1987 Del 266 [LNIND 1986 DEL 459]: (1987) 1 HLR 109: (1987) 1 DMC 188.
4 AIR 2013 Ker 162 ; See Aruna Jalan v. Capt. (now Major) Ramesh Chand Jalan, AIR 1988 All 239 [LNIND 1988 ALL
119]: (1988) 2 DMC 117: 1988 Mat LR 269: (1988) 2 Hindu LR 497; also see M.D. David v. K.G. Mercy, AIR 2013 Ker
162 .
5 AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470.
1 (1979) 2 WLR 377.
2 Arun Kumar Bhardwaj v. Anila Bhardwaj, AIR 1993 P&H 33 : ILR (1994) 1 P&H 272: 1993 Marri LJ 236: 1993 (1) Punj
LR 230.
3 Atkins v. Atkins, (1942) 2 All ER 637 (she went on nagging her till the early hours of the morning); Usmar v. Usmar,
(1949) 64 TLR 500; King v. King, (1962) 2 All ER 584 : 1953 AC 124: (1992) 2 TLR 429.
4 Amrik Singh v. Surjit Kaur, 1975 HLR 44.
6 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
7 AIR 1970 Mys 232 .
8 AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470.
1 Gangadharan v. T.T. Thankam, AIR 1988 Ker 244 [LNIND 1988 KER 47]: (1988) 2 DMC 349: (1988) 1 Ker LJ 329,
where almost entire case law has been reviewed.
2 AIR 1981 Del 53 : 1981 Mahr LR 211: 1981 Marri LJ 197; Vinay Kumar Singh v. Sabita Devi, AIR 2015 Pat 136
[LNINDU 2015 PAT 29].
3 AIR 1982 NOC 111 (Del).
4 AIR 1982 NOC 111 : 1983 HLR 195.
5 (1985) 28 Del LT (SN).
6 (1982) 1 DCM 180; Mamta Bhardwaj v. Madhusudan Bhardwaj, AIR 2015 MP 103 .
7 AIR (1982) NOC 313 . See also AIR (1985) NOC 45 .
8 AIR 1994 SC 710 [LNIND 1993 SC 972]: (1994) 1 SCC 337 [LNIND 1993 SC 972]: 1994 AIR SCW 45.
9 AIR 1987 Del 52 [LNIND 1986 DEL 76]: 1986 Mah LJ 438: (1986) 2 Hindu LR 322.
10 Reliance is placed on Upper Ganges Valley Electricity Supply Co. v. U.P. Electricity Board, AIR 1973 SC 683 [LNIND
1972 SC 585]: (1973) 1 SCC 254 [LNIND 1972 SC 585]: (1973) 1 SCWR 231 [LNIND 1972 SC 585]: (1973) 3 SCR 107
[LNIND 1972 SC 585].
11 AIR 1978 Raj 140 [LNIND 1978 RAJ 26]: 1978 Raj LW 363: 1978 WLN 137.
12 AIR 1982 Del 107 : 1982 Hindu LR 238: 1982 Marri LJ 140; Jayakrishna Panigrahi v. Surekha Panigrahi, AIR 1996 AP
19 [LNIND 1995 AP 288]: 1995 (2) APLJ 287 [LNIND 1995 AP 288]: 1996 (1) DMC 335 : 1996 Marri LJ 171.
1 AIR 1987 Del 63 [LNIND 1986 DEL 158]: 1986 Raj LR 408: (1986) 11 DRJ 135 [LNIND 1986 DEL 158]: 1986 Mat LR
256.
2 (1979) Hindu LR 415 : 1979 Marri LJ 366.
3 O’Neil v. O’Neil, (1975) 1 WLR 118 (Allegation was that the husband is not the father of the child); Rajan Vasant
Revankar v. Shobha Rajan Revankar, AIR 1995 Bom 246 [LNIND 1994 BOM 168]: 1995 (1) Bom CR 47 [LNIND 1994
BOM 168]: 1995 (1) DMC 532 : 1995 Mat LR 342(scandalous charge against brother-in-law and sister-in-law).
4 AIR 1979 P&H 98 : 1979 Hindu LR 155: 1979 Marri LJ 232: 1979 Mat LR 271.
 Page 127 of 140
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5 (1953) 2 SA 896.
6 (1952) AC 525 : (1952) 1 All ER 875 : (1952) 1 TLR 833 (HL).
7 (1980) MLR 102: AIR 1980 Del 213 [LNIND 1980 DEL 4]: 1980 Hindu LR 534.
8 (1925) DLR 1144.
1 Parimi Mehar Seshu v. Parimi Nageswara Sastry, AIR 1994 AP 92 [LNIND 1993 AP 233]: 1993 (2) Hindu LR 222:
(1994) 1 DMC 417 (DB).
2 AIR 1970 Mys 232 .
4 AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470; See also English case, Gollins v.
Gollins, (1964) AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966, reviewed earlier, is also a case of neglect.
5 Coffer v. Coffer,(1964) 108 Sol Jo 465.
6 Gardner v. Gardner,(1947) IWLR 877; Shears v. Shears, (1947) 1 All ER 630 : 177 LT 148.
7 AIR 1965 All 280 .
8 Stewart v. Stewart,(1974) I WLR 877.
9 Vinit H. Joglekar v. Vaishali Vinit Joglekar, AIR 1998 Bom 73 [LNIND 1997 BOM 894]: 1998 (1) Bom CR 270 [LNIND
1997 BOM 894]: 1998 (1) Mah LR 875: 1998 (1) Marri LJ 512.
10 Boardman v. Boardman,(1866) 1 P&D 233.
11 Foster v. Foster, (1921) All ER 490.
12 Walker v. Walker, (1912) 107 LT 655.
13 AIR 1970 J&K 158.
14 AIR 1978 J&K 69 : 1978 Kash LJ 237: 1978 Mat LR 298.
2 Stewart v. Stewart,(1974) I WLR 877; O’Neil v. O’Neil, (1975) 1 WLR 118 .
3 Section 2(vii)(c) of the Dissolution of Muslim Marriage Act, 1939.
4 Section 32(e) of the Parsi Marriage and Divorce Act, 1936.
5 Akhilesh Swaroop Sharma v. Rashmi Akhilesh Sharma, AIR 2009 Chh 51 : 2009 (83) All Ind Cas 618: 2009 (3) Cg LJ
7.
6 AIR 1987 Del 203 [LNIND 1987 DEL 15]: (1987) 1 Cur LJ (Civ and Cri) 603: (1987) 92 Punj LR (D) 121 : (1987) 2 DMC
428; See also Shobha Rani v. Madhukar Reddy, (1988) 1 SCC 105 [LNIND 1987 SC 757]: 1988 (1) SCJ 307: AIR 1988
SC 121 [LNIND 1987 SC 757]; Prakashkaur v. Harjinderpal Singh, AIR 1999 Raj 46 : 1999 (1) CCC 406: 1999 (1)
Marri LJ 474: 1999 Mat LR 213; Vibhash alias Rinku v. Poonam, AIR 2014 P&H 29.
7 (1988) 1 SCC 105 [LNIND 1987 SC 757]: 1988 (1) SCJ 307: AIR 1988 SC 121 [LNIND 1987 SC 757].
8 See also Rajani v. Subramonian, AIR 1990 Ker 1 [LNIND 1988 KER 563]: (1989) 1 Ker LJ 97: (1989) 1 Ker LT 234
[LNIND 1988 KER 563]: ILR (1989) 2 Ker 153 [LNIND 1988 KER 563].
9 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
1 AIR 1981 Del 53 : 1981 Mad LR 211: (1980) 2 Del 1609; Alka v. Dr. R.K. Gautam, AIR 1996 Del 276 [LNIND 1996
DEL 262]: 1996 (2) Civ LJ 619: 1996 (62) DLT 109 : 1996 Mat LR 225; Rama Kanta v. Mohinder Laxmidas Bhandula,
AIR 1996 P&H 98 : (1995) 2 HLR 315: 1996 Marri LJ 482.
2 AIR 1987 Del 52 [LNIND 1986 DEL 76]: 1986 Marri LJ 438: (1986) 11 Del Rep J 297: (1987) 1 DMC 330.
3 AIR 1994 Raj 33 : (1994) 1 DMC 215: 1994 Marri LJ 478.
4 Uma Wanti v. Arjan Dev, AIR 1995 P&H 312 : 1996 (1) DMC 519: 1995 (2) Hindu LR 334 : 1995 (2) Punj LR 530.
5 Om Parkash v. Rajni, AIR 1988 Del 107 [LNIND 1986 DEL 330]: (1987) 1 HLR 316: 1988 Marri LJ 281.
6 AIR 1988 SC 407 [LNIND 1987 SC 844]: 1988 Supp SCC 112: 1988 (1) SCJ 25 [LNIND 1987 SC 844].
1 Abbas Ali v. Rabia Bibi, 1951 ALJ 346.
2 PLD 1958 Lah 59.
3 Hamid Hussain v. Kabra Begum, AIR 1952 All 145 [LNIND 1950 ALL 276]: 1951 All LJ 346; Mt. Kurshid Begum v.
Abdul Rashid, AIR 1927 Nag 139 : 100 Ind Cas 169.
4 Fakhruddin v. Hamidan, AIR 1953 All 571 : 1953 All LJ 229.
 Page 128 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

5 Ashmabai v. Umar, AIR 1941 Sind 23 .

6 Begum Zohra v. Md. Ishad, PLD 1955 Sind 378; Abdul Aziz v. Bashiran, PLD 1958 Lah 59(both Pakistani cases).
7 Mumtazul Karim v. Vikraun Nisha, AIR 2013 MP 172 .
8 Umat-ul-Hafiz v. Talib Hussain, AIR 1945 Lah 56 : 46 PLR 343; Umar Bibi v. Md. Din, AIR 1945 Lah 51 : 220 IC 9.
9 Sofia v. Zaheer, AIR 1933 Oudh 15 .
1 AIR 1943 Lah 310 : 210 IC 587.
1 Umat-ul-Hafiz v. Talib Hussain, AIR 1945 Lah 56 : 46 PLR 343.
2 Badrulnisa Bibi v. Syed Mohammad Yusuf, AIR 1944 All 23 : ILR 1944 All 27 : 211 IC 384.
3 1978 HLR 304.
4 Bashirulla v. Sardar Begum, PLD 1954 Lah 644.
5 Baillie, Digest of Moohummudan Law, I, 41.
6 1971 KLT 663.
1 Baillie, Digest of Moohummudan Law, I, 190.
3 AIR 1945 Lah 56 : 46 PLR 343.
4 Ashmabai v. Umar, AIR 1941 Sind 23 .
5 Badrulnisa Bibi v. Syed Mohammad Yusuf, AIR 1944 All 23 : ILR 1944 All 27 : 1943 All LJ 540.
6 Mumtazul Karim v. Vikraun Nisha, AIR 2013 MP 172 .
7 Umat-ul-Hafiz v. Talib Hussain, AIR 1945 Lah 56 : 46 PLR 343.
1 Walsham v. Walsham, (1949) 1 All ER 774 : (1949) LJR 1142, and Jamieson v. Jamieson, (1952) AC 525 : (1952) 1 All
ER 875 : (1952) 1 TLR 833 (HL).
2 Saptmi v. Jagdish Chandra, 73 CWN 502.
3 Kusum Lata v. Kampta Prasad, AIR 1965 All 280 .
4 Sarah Abraham v. Pyli Abraham, AIR 1959 Ker 75 [LNIND 1958 KER 50]: 1958 Ker 643: 1958 Ker LT 616 [LNIND
1958 KER 50]; Broja Kishore Ghosh v. Krishna Ghosh, AIR 1989 Cal 327 [LNIND 1988 CAL 129]: (1988) 24 Reports
313: (1988) 2 Cur CC 188: (1988) 2 DMC 301.
5 Madhavi Ramesh Dudani v. Ramesh K. Dudani, AIR 2006 Bom 94 [LNIND 2005 BOM 1163]: 2006 (1) AIR Bom R 547:
2006 (1) Bom CR 20 [LNIND 2005 BOM 1163]: 2005 (4) Bom LR 1237 [LNIND 2005 BOM 1163].
6 Harbhajan Singh v. Amarjeet Kaur, AIR 1986 MP 41 [LNIND 1985 MP 20]: (1986) 1 HLR 634: (1986) 1 DMC 470.
1 Rup Lal v. Kartaro Devi, AIR 1970 J&K 158.
4 (1952) AC 525 : (1952) 1 All ER 875 : (1952) 1 TLR 833 (HL).
5 (1952) 2 All ER 584 : 1953 AC 124: (1952) 2 TLR 429.
6 See Pearce and Reid, L. JJ., in Collins v. Collins, (1963) 2 All ER 966 : 1964 AC 644: (1963) 3 WLR 176.
7 AIR 2015 SC 2504 [LNINDORD 2015 SC 18323].
1 Akhilesh Kumar Bisht v. Sunita Kumari, AIR 2010 Uttr 112 : 2010 (2) Hindu LR 133: 2010 (2) Marri LJ 47.
2 Kaslefsky v. Kaslefsky, (1950) 2 All ER 398 : 66 TLR (Pt 2) 616; Yasoda v. Krishnamoorthy, AIR 1992 Kant 360 :
(1992) 1 DMC 442: (1992) 2 Ker LJ 265 (DB); Indira Gangele v. Shailendra Kumar Gangele, AIR 1993 MP 59 [LNIND
1992 MP 120]: 1993 Marri LJ323: (1991) II DMC 401; Tapan Chakraborty v. Anjali Chakraborty, AIR 1993 Cal 10
[LNIND 1992 CAL 102]: (1993) 1 HLR 353: 1993 Marri LJ 422(DB).
3 (1968) 70 PLR 879.
4 AIR 1964 MP 28 [LNIND 1963 MP 81]: 1963 Jab LJ 718: 1963 MPLJ 768 : ILR (1965) MP 957.
5 AIR 1969 MP 36 : 1969 Jab LJ 188: 1969 MPLJ 361 [LNIND 1968 MP 19].
1 Archana Mahajan v. Vinod Mahajan, AIR 1998 MP 220 : (1998) 1 DMC 594: 1999 (1) Marri LJ 240.
2 Neelam v. Vinod Kumar Midha, AIR 1986 P&H 253.
3 AIR 1987 P&H 33 : (1986) 1 Punj LR 373: 1987 Marri LJ 106.
4 Aloka Dey v. Mrinal Kanti Dey, AIR 1973 Cal 393 [LNIND 1972 CAL 183].
 Page 129 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

5 Pranab Biswas v. Mrinmayee Dassi, AIR 1976 Cal 156 [LNIND 1975 CAL 283]: (1976) 3 Cal HC (N) 119.
6 Ginden v. Barelal, AIR 1976 MP 83 [LNIND 1975 MP 44]: 1976 MPLJ 115 [LNIND 1975 MP 36]: 1976 Hindu LR 270.
7 Kaushalya Rani v. Vijai Singh Gehlot, AIR 1973 Raj 269 : 1973 Raj LW 303: ILR (1973) 23 Raj 631 .
8 P. v. P., AIR 1983 Bom 8 : 1982 (1) Bom CR 236: (1982) 2 DMC 398.
9 Meachur v. Meachur, (1946) 2 All ER 307.
10 AIR 1978 All 255 : 1978 All LJ 284: 1978 All WC 371: 1978 Hindu LR 418.
1 Squire v. Squire, (1948) 2 All ER 51 : 64 TLR 371 (CA). Also see I. v. I., (1963) 2 All ER 746.
2 (1946) 2 All ER 307.
3 Rajesh Kumar Upadhyay v. Judge, Family Court, Varanasi, AIR 1998 All 350 [LNIND 1998 ALL 372]: 1998 All LJ 2402:
1998 (33) All LR 584 : 1998 (3) All WC 1740.
4 Prem Chand Pandey v. Savitri Pandey, AIR 1999 All 43 [LNIND 1998 ALL 312]: 1999 All LJ 335: 1998 (3) All WC
1903: 1999 (1) Marri LJ 60.
5 V. Venkateshwarlu v. V. Mamatha, AIR 2014 AP 24 [LNIND 2013 AP 1648]: 2014 (2) Andh LD 437: 2014 (2) DMC
446.
6 K.R. Manjunath v. Veena, AIR 1999 Kant 64 [LNIND 1998 KANT 400]: 1999 (1) DMC 525: 1998 (6) Kant LJ 346 : 1999
(1) Marri LJ 336.
7 S. Hanumantha Rao v. S. Ramani, AIR 1999 SC 1318 : 1999 AIR SCW 1012: JT 1999 (2) SC 451 : (1999) 3 SCC 620:
(1999) 2 SCALE 338.
8 Sandeep v. Geeta, AIR 2014 P&H 2.
9 Bajrang Gangadhar Revdekar v. Pooja Bajrang Revdekar, AIR 2010 Bom 8 [LNIND 2009 BOM 758]: 2011 (1) Hindu
LR 342: 2010 (1) Marri LJ 124.
10 Ananta v. Ramchander, AIR 2009 Cal 167 [LNIND 2008 CAL 834]: 2009 AIHC 563 (NOC): 2009 (1) Cal LJ 719
[LNIND 2008 CAL 834]: 2009 (4) ICC 461(DB).
11 Umesh Manohar Waidande v. Trupti Umesh Waidande, AIR 2012 Bom 99 [LNIND 2012 BOM 233]: 2012 (3) Civ LJ
900: 2012 (3) All MR 532.
12 Uma Mahesh v. Nethravathi, AIR 2013 Kant 41 [LNIND 2012 KANT 140]: 2013 (2) DMC 217: 2012 (5) Kant LJ 567
[LNIND 2012 KANT 140].
1 Birender Singh v. Rekha Devi, AIR 2013 P&H 87 : 2013 (3) DMC 627.
2 Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Del 135 [LNIND 1992 DEL 527]: 1993 (1) Civ LJ 615: 1993 Marri LJ
401: 1993 Raj LR 88.
3 AIR 1994 SC 710 [LNIND 1993 SC 972]: (1994) 1 BLJR 1 [LNIND 1993 SC 972]: (1994) 1 SCC 337 [LNIND 1993 SC
972].
4 AIR 1984 All 40 : (1983) 9 All LR 714: (1984) 1 DMC 294 : 1984 All CJ 401(2); Gouri Shankar Chakravarty v. Basana
Roy, AIR 1999 Gau 48 : 1998 (2) DMC 630: 1999 (1) Gau LR 377 : 1998 (2) Hindu LR 593.
5 AIR 1984 SC 1562 [LNIND 1984 SC 200]: (1984) 4 SCC 90 [LNIND 1984 SC 200]: 1984 Marri LJ 499.
1 AIR 1984 All 81 : 1984 HLR 152: (1984) 1 DMC 366 (All).
2 AIR 1987 Del 174 [LNIND 1986 DEL 431]: (1987) 1 HLR 123: (1987) 1 DMC 73.
3 For instance see Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 [LNIND 1956 SC 82]: 1956 SCR 838
[LNIND 1956 SC 82]: 1957 SCJ 144; Earnest John White v. Kathleen Olive White (Nee Meade), AIR 1958 SC 441
[LNIND 1958 SC 18]: 1958 SCJ 839 [LNIND 1958 SC 18]: 1958 SCA 1108 [LNIND 1958 SC 18]: 1958 SCR 1410
[LNIND 1958 SC 18]; Mahendra v. Sushila, AIR 1965 SC 364 [LNIND 1964 SC 87]: (1964) 7 SCR 264: 66 Bom LR
681.
1 AIR 1989 MP 326 [LNIND 1989 MP 14]: 1989 Jab LJ 573: 1989 MPLJ 571 : 1990 (1) Civ LJ 128 (SB).
2 Mayadevi v. Jagdish Prasad, AIR 2007 SC 1426 [LNIND 2007 SC 205]: 2007 AIR SCW 1803: (2007) 3 SCC 136
[LNIND 2007 SC 205]: (2007) 3 SCALE 392 [LNIND 2007 SC 205]: 2007 (2) SCC (Cri) 48.
3 Manisha Tyagi v. Deepak Kumar, AIR 2010 SC 1042 [LNIND 2010 SC 165]: 2010 AIR SCW 1306: (2010) 4 SCC 339
[LNIND 2010 SC 165].
4 Vishwanath Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, AIR 2012 SC 2586 [LNIND 2012 SC 374]: 2012 AIR
SCW 4300: (2012) 7 SCC 288 [LNIND 2012 SC 374].
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5 Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296 [LNIND 2008 SC 981]: 2008 AIR SCW 3824: 2008 (3) CTC 528
[LNIND 2008 SC 981]: 2008 (2) WLC (SC) CVL 140.
1 Mohini Chawla v. Subhash Chander Chawla, AIR 2009 P&H 33.
2 Section 13(1)(iii).
3 Section 27(c).
4 Section 2(vi).
5 Section 10(iii) of the Act.
6 Sheela v. Baldev Singh, AIR 2010 Uttr 18 : 2010 AIHC 1365: 2010 (2) Marri LJ 240.
1 Among the Hanafis. Abu Hanifa and Abu Yusuf took the view that wife has no right to sue the husband on account of
his insanity, and Mohammed held that she can sue for divorce: Hedaya, 128. Among the Shafi, either party could sue
for divorce.
Among the Shias, the husband could sue for divorce if insanity was total.
1 Surendra Singh v. Pawan Verma, AIR 2009 Raj 159 [LNINDORD 2009 RAJ 198]: 2009 AIHC 978 (NOC): 2009 (3) Raj
LW 2437 : 2009 (3) WLC 635.
2 Whysall v. Whysall, (1959) 3 All ER 389 : (1959) 3 WLR 592.
3 AIR 1969 Guj 48 [LNIND 1967 GUJ 16]: 10 Guj LR 253.
4 AIR 1963 Guj 250 [LNIND 1963 GUJ 74]: (1963) 4 Guj LR 890.
1 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125]. See also Anima Roy v. Probodh Mohan Roy, AIR 1969 Cal 304 [LNIND 1968 CAL 175]: 73 CWN 100;
Pronab Kumar Ghosh v. Krishna Ghosh, AIR 1975 Cal 109 [LNIND 1974 CAL 45]: 78 CWN 448. These are pre-
amendment cases and should be looked into with caution.
2 AIR 1986 P&H 379 : (1986) 89 Punj LR 542.
3 Text Book of Psychiatry, (1969), 555.
1 The psychopaths are divided in three broad groupings:
(1) Predominantly aggressive;
(2) Predominantly inadequate or passive;
(3) Predominantly creative.
Predominantly aggressive
The person belonging to this group are violent to the highest decree either to themselves or to others. After violence they
are introspective. The clinical features of this class are often exhibited in the form of suicide, homicide, alcoholism, and
drug addiction, epilepsy and sexual perversion. They are cold and hard, insensible to the feeling of others and suffer
from amnesia.
Predominantly inadequate or passive
Persons of this class are less dramatic but more persistent. They are roughly of two types : (1) petty delinquent class with
thieving, lying, swindling propensities; and (2) those who develop individualism. Pathological liars belong to this class
who weave falsifying embroidery to occurrences or fantasies. They are compulsive liars, one lie leading to another.
Fantasies of wealth often surround them. Pseudo querulants is another type. Emotionally unstable, they are very
irritable. They readily come into collision with other people. They are arrogant and usually indulge in law suits.
Predominantly creative
Intense individualistic people are those who carve out a way for themselves irrespective of obstacles. “Genius in its trust
and greatest sense is a multiple quality, it has many facets, and associated with it there must be sufficient energy to
accomplish whatever has been conceived. Such persons are not many in number. It is understandable that the
sensitive nervous system of the genius is one which might quite well show vagaries in many directions. It is something
which crops up in the process of variation…Joan of Arc, Nepoleon, Lawrence of Arabia, may all be taken as examples
of persons with great qualities of leadership and of vision but yet associated with a certain unevenness in their make-up
which differentiated them markedly from their more ordinary companions. Their objective is gained by a feeling that
their way is right rather than by thoughtful, methodical planning.
The above is reproduced from Beri’s Law of Marriage and Divorce in India, 150-151, who has adopted it from Gillespie and
Henderson’s Text Book of Psychology.
1 Rekha v. Ravindra Kumar, AIR 1994 NOC 330 (MP).
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2 Pramatha Kumar Maity v. Ashima Maity, AIR 1991 Cal 123 [LNIND 1990 CAL 201]: (1991) 95 CWN 486: 1991 (1) Cal
HN 244: 1991 (1) Cal LT 447.
3 N. Rukmini v. P. Puttaswami, AIR 2009 Kant 61 [LNIND 2008 KANT 631]: 2009 (2) AIR Kar R 21: ILR 2009 Kant 71 :
2009 (2) Kant LJ 640.
4 Mithilesh Shrivastava v. Kiran, AIR 2012 Chh 21 ; Sampa Karmakar v. Sanjib Karmakar, AIR 2012 Gau 32 : 2011 (3)
DMC 640: 2011 (2) Gau LT 960.
5 AIR 1977 P&H 28 : 79 Punj LR 60: 1977 Mat LR 214: 1978 Marri LJ 19.
6 Rules 1 to 15 of order 32 run as under:
1. Minor to sue by next friend.—Every suit by a minor shall be instituted in his name by a person who in such suit
shall be called the next friend of the minor.

Explanation.—In his order, “minor” means a person who has not attained his majority within the meaning of section
3 of the Indian Majority Act, 1875, where the suit relates to any of the matters mentioned in Clauses (a) and (b) of
section 2 of that Act or any other matter.
2. Where suit is instituted without next friend, plaint to be taken off the file.—
(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the
plaint taken off the file, with cross to be paid by the pleader or other persons by whom it was presented.
(2) Notice of such application shall be given to such person, and the court, after hearing his objections (if any),
may make such order in the matter as it thinks fit.
2A. Security to be furnished by next friend when so ordered.—
(1) Where a suit has been instituted on behalf of the minor by his next friend, the court may, at any stage of the
suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the
next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.
(2) Where such a suit is instituted by an indigent person the security shall include the court-fees payable to the
Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the court makes an order
under this rule directing security to be furnished.
3. Guardian for the suit to be appointed by Court for minor defendant.—
(1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper
person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on
behalf of the minor by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no
interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so
appointed.
(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor
appointed or declared by an authority competent in that behalf, or where there is no such guardian, upon
notice to the father or where there is no father, to the mother, or where there is no father or mother, to other
natural guardian of the minor, or where there is no father, mother or other natural guardian to the person in
whose care the minor is and after hearing any objection which may be urged on behalf of any person served
with notice under this sub-rule.
(4A) The court may, in any case, if it thinks fit issue notice under sub-rule (4) of the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit of a minor shall unless his appointment is
terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit
including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.
3A. Decree against minor not to be set aside unless prejudice has been caused to his interest.—
(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for
the suit of the minor has an interest in the subject-matter of the suit adverse to that of the minor, but the fact
that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused
to the interests of the minor, shall be ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the
misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to
the interests of the minor.
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4. Who may act as next friend or be appointed guardian for the suit.—
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his
guardian for the suit :
Provided that the interest of such person is no adverse to that of the minor and that he is not, in the case of a
next friend, a defendant, or in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such
guardian shall act as the next friend of the minor or to be appointed his guardian for the suit unless the court
considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act
to be appointed as the case may be.
(3) No person shall without his consent (in writing) be appointed guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the court may appoint any of its
officers to be such guardian and may direct that the costs to be incurred by such officer in the performance of
his duties as such guardian shall be born either by the parties or by any one or more of the parties to the suit,
or out of any fund in court in which the minor is interested or out of the property of the minor and may give
directions for the repayment or allowance of such costs as justice and the circumstances of the case may
require.
5. Representation of minor by next friend or guardian for the suit.—
(1) Every application to the court on behalf of minor, other than an application under rule 10, sub-rule (2) shall be
made by his next friend or by his guardian for the suit.
(2) Every order made in a suit on any application, before the court in or by which a minor is in any way concerned
or affected, without such minor being represented by a next friend or guardian for the suit, as the case may
be, may discharge, and, where the pleader of the party at whose instance such order was obtained knew or
might reasonably have known, the fact of such minority, with costs to be paid by such pleader.
6. Receipt by next friend or guardian for the suit of property under decree for minor.—
(1) Next friend or guardian for the suit shall not without the leave of the Court, receive any money or other
moveable property on behalf of minor either:
(2) by way of compromise before decree or order, or
(3) under a decree or order in favour of the minor.
(4) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to
be guardian of the property of the minor, or having been so appointed or declared, is under any disability
known to the Court to receive the money or other movable property, court shall, if it grants him leave to
receive the property, require such security and give such directions as well, in its opinion, sufficiently protect
the property from waste and ensure its proper application :
Provided that the Court, may, for reasons to be recorded dispense with such security while granting leave to
the next friend or guardian for the suit to receive money or other movable property under a decree or order,
where such next friend or guardian—
(5) is the manager of Hindu undivided family, and the decree or order relates to the property or business of the
family; or
(6) is the parent of the minor.
7. Agreement or compromise by next friend or guardian for suit.—
(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the
proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit, in which
he acts as next friend or guardian.
(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the
guardian for the suit, as the case may be and also, if the minor is represented by a pleader, by the certificate
of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of
the minor :
Provided that the opinion so expressed whether in the affidavit or in the certificate shall not preclude the Court
from examining whether the agreement or compromise proposed is for the benefit of the minor.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable
against all parties other than the minor.
8. Retirement of next friend.—
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(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be
put in his place and giving security for the costs already incurred.
(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness
of the person proposed and also that he has no interest adverse to that of the minor.
9. Removal of next friend.—
(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected
with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest
will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit,
ceases to reside within India, or for any other sufficient cause, application may be made on behalf of the
minor or by a defendant for his removal, and the court, if satisfied of the sufficiency of the cause assigned,
may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.
(2) Where the next friend is not guardian appointed or declared by an authority competent in this behalf, and an
application is made by a guardian so appointed or declared, who desires to be himself appointed in the place
of the next friend the court shall remove the next friend unless it considers, for reasons to be recorded by it,
that the guardian ought not to be appointed the next friend in his place upon such terms as to the costs
already incurred in the suit as it thinks fit.
10. Stay of proceedings or removal etc., of next friend.—
(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the
appointment of a next friend in his place.
(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend
appointed, any person interested in the minor or in the matter in issue may apply to the court for the
appointment of one, and the court may appoint such person as it thinks fit.
11. Retirement, removal or death of guardian for suit.—
(1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is
made to appear, the court may permit such guardian to retire or may remove him and may make such order
as to costs as it thinks fit.
(2) Where the guardian for the suit retires, dies or is removed by the court during the pendency of the suit the
court shall appoint a new guardian in his place.
12. Course to be followed by a minor plaintiff or applicant on attaining majority.—
(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall on attaining
majority, elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application he shall apply for an order discharging the next friend
and for leave to proceed in his own name.
(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus :—

“A.B., late a minor, by C.D., his next friend, but now having attained majority.”
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an
order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party
or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte; but no order discharging a next friend and permitting a
minor plaintiff to proceed in his own name shall be made without notice to the next friend.
13. Where majority co-plaintiff attaining majority desires to repudiate suit.—
(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name
struck out as co-plaintiff; and the court if it find that he is not a necessary party shall dismiss him from the suit
on such terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.
(3) The costs of all parties of such application, and of all or any proceedings therefore had in the suit, shall be
paid by such person as the court directs.
(4) Where the applicant is a necessary party to the suit, the court may direct him to be made a defendant.
14. Unreasonable or improper suit.—
(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend
be dismissed on the ground that it was unreasonable or improper.
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Chapter VII FAULT GROUNDS OF DIVORCE

(2) Notice of the application shall be served on all the parties concerned; and the court, upon being satisfied of
such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of
all parties in respect of the application and of anything done in the suit, or make such other order as it thinks
fit.
15. Rules 1 to 14 (except rule 2A) to apply to person of unsound mind.—Rules 1 to 14 (except rule 2A) shall, so
far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and
shall also apply to persons who though not so adjudged, are found by the Court on enquiry, to be incapable, by
reason of any mental infirmity, or protecting their interests when suing or being sued.
1 AIR 1988 SC 2260 [LNIND 1988 SC 446]: (1988) 4 SCC 247 [LNIND 1988 SC 446]: JT 1988 (3) 621 .
1 AIR 1990 MP 150 [LNIND 1989 MP 152]: (1990) 1 DMC 14: 1989 Mat LR 453.
2 T. Hari Kumar Naidu v. Prameela, AIR 2000 AP 46 : 2000 (6) Andh LD 97: 2000 (6) Andh LT 79 [LNIND 2000 AP 676]:
2001 (1) DMC 189.
3 J. Sudhakara Shenoy v. Vrinda Shenoy, AIR 2001 Kant 1 [LNIND 2000 KANT 523]: 2000 AIR Kant HCR 161: ILR
2000 Kant 4624 : 2001 (2) Kant LJ 438 [LNIND 2000 KANT 523].
4 AIR 1990 Ker 262 [LNIND 1989 KER 394]: (1989) 2 Ker LT 742.
5 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
6 See K. Jasmine Kirubakani v. K. Balasundaram, AIR 1996 Mad 105 [LNIND 1995 MAD 394]: 1995 (2) Mad LJ 418:
1995 (2) Mad LW 184 [LNIND 1995 MAD 394]: 1996 Marri LJ 411(medical examination of insanity).
7 AIR 2010 SC 1586 [LNIND 2010 SC 312]: 2010 AIR SCW 2279: (2010) 4 SCC 509 [LNIND 2010 SC 312].
1 This ground has been added in the Divorce Act by virtue of section 10(iv) by the Act 51 of 2001.
1 See Swarajya Lakshmi v. Dr. G.G. Padma Rao, AIR 1974 SC 165 [LNIND 1973 SC 314]: (1974) 1 SCC 58 [LNIND
1973 SC 314]: (1974) 2 SCR 97 [LNIND 1973 SC 314].
1 AIR 1974 SC 165 [LNIND 1973 SC 314] (167-168): (1974) 1 SCC 58 [LNIND 1973 SC 314]: (1974) 2 SCR 97 [LNIND
1973 SC 314].
1 Swarajya Lakshmi v. Dr. G.G. Padma Rao, AIR 1974 SC 165 [LNIND 1973 SC 314]: (1974) 1 SCC 58 [LNIND 1973
SC 314]: 1974 (1) SCJ 623 [LNIND 1973 SC 314]: (1974) 2 SCR 97 [LNIND 1973 SC 314].
2 (1925) 47 All 243.
1 Section 12(1)(v).
2 Section 27(1)(f).
3 Section 2(vi).
4 Section 32(e).
5 Act 51 of 2001, new section 10(v) has been added.
1 AIR 1999 SC 495 : (1999) 8 SCC 296: 1998 AIR SCW 3662.
1 Section 12(e) of the Matrimonial Causes Act, 1973.
2 Popkin v. Popkin,(1794) 1 Hagg Ecc 765n; Browning v. Browning, (1911) P 161; Foster v. Foster, (1921) All ER 490.
3 Section 13(1)(ii).
4 Section 32(i).
5 Section 10.
1 Kusum v. Satya, (1903) 30 Cal 999.
1 Goona Durgaprasad Rao v. Sudarsanaswami, ILR 1940 Mad 653 : AIR 1940 Mad 513 [LNIND 1939 MAD 307]: (1940)
1 Mad LJ 800; Sethalakshmi v. Poonuswami,(1966) 2 Mad 374: (1967) 2 MLJ 334 [LNIND 1965 MAD 288], where
some earlier cases have been reviewed.
2 AIR 1971 SC 2352 [LNIND 1970 SC 146]: (1970) 1 SCC 605 [LNIND 1970 SC 146]: (1971) 1 SCR 49 [LNIND 1970
SC 146].
3 Sethalakshmi v. Poonuswami,(1966) 2 Mad 374: (1967) 2 MLJ 334 [LNIND 1965 MAD 288].
4 J. Das v. State of Kerala, AIR 1981 Ker 164 [LNIND 1981 KER 50]: ILR (1981) 2 Ker 351 [LNIND 1981 KER 50].
5 Vermani v. Vermani, AIR 1943 Lah 51 .
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Chapter VII FAULT GROUNDS OF DIVORCE

6 See Explanation(c) of sub-section (1) of section 2 of the Hindu Marriage Act, 1955.
7 Vermani v. Vermani, AIR 1943 Lah 51 : 205 IC 920; Goona Durgaprasad Rao v. Sudarsanaswami, ILR 1940 Mad 653 :
AIR 1940 Mad 513 [LNIND 1939 MAD 307]: (1940) 1 Mad LJ 800; V.V. Giri v. D.S. Dora, AIR 1959 SC 1318 [LNIND
1959 SC 130]: (1960) 1 SCR 426 [LNIND 1959 SC 130]: 1960 SCJ 1149 [LNIND 1959 SC 130]; the change of caste
cannot be effective unless it has received recognition by the caste.
8 Guntur Medical College v. Y. Mohan Rao, AIR 1976 SC 1904 [LNIND 1976 SC 159]: (1976) 3 SCC 411 [LNIND 1976
SC 159]: 1976 Hindu LR 473.
9 S. Anbalagan v. B. Devarajan, AIR 1984 SC 411 [LNIND 1983 SC 363]: (1984) 2 SCC 112 [LNIND 1983 SC 363]:
1984 UJ (SC) 257.
1 1975 KLT 55.
3 Chandrasekhar v. Kulndaivelu, AIR 1963 SC 185 [LNIND 1962 SC 192]: (1963) 2 SCR 440 [LNIND 1962 SC 192].
1 (1892) 21 IA 56 (64).
2 AIR 1938 Lah 277 : 182 IC 438.
3 AIR 1938 Lah 280 .
1 AIR 1938 Lah 280 (286).
2 Abdul Razaak v. Aga Mohammed, (1892) 27 IA 56 : 19 Bom LR 164.
3 Skinner v. Skinner, (1897) 28 Cal 537; see also Resham Bibi’s case (where Din Mohammed, J., said that declaration of
Islam should not be casual); Rakeya Bibi v. Anil Kumar Mukherjee, ILR (1948) 2 Cal 119 : 52 Cal WN 142.
4 Rakeya Bibi v. Anil Kumar Mukherjee, ILR (1948) 2 Cal 119 : 52 Cal WN 142.
5 Naraontkath v. Parkkal,(1925) 45 Mad 986, where a Mappilla Muslim became an Ahmadia; see also Jiwan Khan v.
Habib, (1933) 14 Lah 518: AIR 1933 Lah 759 . The Shias are Muslims even though they renounce the first three
Caliphs.
6 (1871) 14 MIL 309.
7 However, in this case it was not established that the ceremony of marriage took place after conversion.
1 (1891) 18 Cal 264.
2 (1949) 2 Cal 119.
3 See also Abdul Razaak v. Aga Mohammed, (1892) 21 IA 56.
4 Amir Ali, Mohammedan Law, II, 388.
1 Abdul Gani v. Azizul, (1912) 39 Cal 409.
2 Karam Singh v. E., AIR 1933 All 433 . See second proviso to section 4 of the Dissolution of Muslim Marriage Act, 1939.
3 Section 4.
4 First Proviso to section 4.
5 See Amir Ali, Mohammedan Law, II, 388-90.
6 Amir Ali, Mohammedan Law, 390-91.
7 Amir Ali, Mohammedan Law, 394.
1 Section 10.
2 Dunbai v. Sorabji, AIR 1938 Bom 68 : 39 Bom LR 1143.
3 Section 10(ii) of the Divorce Act, 1869.
4 Mahabharat, Shanti Parva, 58.
1 Mahabharat, Shanti Parva, 59.
2 Mahabharat, Shanti Parva, 167, 6-9.
3 Manu Smriti, II, 224.
1 Govind Dass v. Kuldip Singh, AIR 1971 Del 151 [LNIND 1970 DEL 60]: 1970 Ren CR 511: 1970 Ren CJ 742.
2 Sital Das v. Sant Ram, AIR 1954 SC 606 ; Satyanarayana Avadhani v. Hindu Religious Endowments Board, Madras,
AIR 1957 AP 824 : 1955 Andh WR 671: 1955 Andh LT (Civ) 697.
 Page 136 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

1 Gurdit Singh v. Mansha Singh, AIR 1977 SC 640 [LNIND 1976 SC 457]: (1977) 1 SCC 791 [LNIND 1976 SC 457]:
(1977) 2 SCR 250 [LNIND 1976 SC 457].
2 (1955) 3 All ER 721.
3 ILR (1957) 14 Cal 580 .
1 Nirmoo v. N.K. Karam, AIR 1968 Del 260 [LNIND 1968 DEL 36]: 70 PLR (D) 179.
1 Section 32(h) of the Parsi Marriage and Divorce Act, 1936.
1 Section 13(2).
2 Section 27(1A).
3 Section 2.
4 Section 32.
5 Section 32(d).
6 Section 11.
7 See para 2 of section 10.
1 Section 32(a) of the Parsi Marriage and Divorce Act, 1936 under which adultery fornication, rape and unnatural
offences are clubbed under this clause.
1 Under the pre-Act Bombay and Madras Hindu divorce statutes, it was a ground of divorce only for the first wife. Under
the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946, any wife of a polygamously
married Hindu could live separately and claim maintenance from her husband. Under section 18(2), Hindu Adoptions
and Maintenance Act, 1956, any Hindu wife is entitled to live separately and claim maintenance against her husband on
the ground that he has any other wife living.
2 AIR 1963 Mys 118 : ILR (1962) Mys 1034.
3 Lalithamma v. R. Kannan, AIR 1966 Mys 178 (DB); Leela v. Dr. Rao Anand Singh, AIR 1963 Raj 178 [LNIND 1963
RAJ 90]: ILR (1963) 13 Raj 424 [LNIND 1963 RAJ 90]: 1963 Raj LW 390.
4 Jaswant v. Kal Singh, 1969 PLR 840.
5 Nirmoo v. Nikka Ram, AIR 1968 Del 260 [LNIND 1968 DEL 36]: (1968) 70 Punj LR (D) 179; Leela v. Dr. Rao Anand
Singh, AIR 1963 Raj 178 [LNIND 1963 RAJ 90]: ILR (1963) 13 Raj 424 [LNIND 1963 RAJ 90]: 1963 Raj LW 390.
1 Chandrabhagabai Rajaram v. Rajaram J. Patil, AIR 1956 Bom 91 [LNIND 1954 BOM 114]: 57 Bom LR 946.
2 AIR 1962 Punj 183 : ILR (1961) 1 Punj 764.
3 Section 13(2)(ii).
4 Section 27(1A)(i).
1 Exception to section 375.
2 R. v. Clarence, (1882) 22 QBD 23.
3 R. v. Clarke, (1949) 2 All ER 448.
4 Coffey v. Coffey, (1898), p. 169; Bosworthick v. Bosworthick, (1901) 86 LT 121.
5 Redpath v. Redpath, (1950) 1 All ER 600.
1 B.P. Beri, Law of Marriage and Divorce, 1982, 169 takes this view.
2 Section 13(2)(ii).
3 Section 27(1A)(i).
4 Section 10, Para 2.
6 Sthathan v. Sthathan, (1928) All ER 219.
1 (1905) 22 TLR 26.
2 Under section 27 of the Matrimonial Causes Act, 1859 husband’s sodomy was a ground of wife’s divorce as it is under
section 10 of the Indian Divorce Act, 1869.
3 (1963) 2 All ER 746.
4 F. v. F.,(1950) 2 WWR 54; Fast v. Fast,(1945) 3 WWR 66; Warden v. Warden, (1951) OWN 381 (Canadian cases).
 Page 137 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

5 K.V. Revanna v. Suseelamma, AIR 1967 Mys 165 : (1966) 5 Law Rep 357: (1966) 1 Mys LJ 44 [LNIND 1965 KANT
66].
6 AIR 1967 Mys 165 : (1966) 5 Law Rep 357: (1966) 1 Mys LJ 44 [LNIND 1965 KANT 66].
1 (1959) 2 All ER 766 : (1959) 1 WLR 842.
2 Satinder Singh v. Bhupinder Kaur, AIR 2012 Del 43 [LNIND 2011 DEL 3361]: 2012 (188) DLT 385 [LNIND 2011 DEL
3361]: 2012 (1) Hindu LR 212.
1 AIR 1986 MP 218 [LNIND 1985 MP 235]: (1985) 1 DMC 467: (1986) 2 Hindu LR 213 (MP).
2 Sharma H. Kasinath v. Shoba, AIR 2010 Kant 168 [LNIND 2010 KANT 441]: 2011 (1) DMC 457: 2010 (6) Kant LJ 236
[LNIND 2010 KANT 441]; Manoj Kedia v. Anupama Kedia, AIR 2010 Chhat 92 : 2010 (3) MPHT 54: 2011 (1) DMC 465.
3 Koran II, 229; Baillie, Digest of Moohummudan Law, I, 205.
1 Amir Ali, Mohammedan Law, Vol. II, 427. See also Asha Bibi v. Kadir, (1910) ILR 33 Mad 22.
2 The Koran, IV, 127.
3 The Koran, IV, 35.
4 Abdur Rahim, 327.
1 Imam Hasan was in the habit of marrying and divorcing women so much so that his father Ali came out openly against
it.
2 1972 KLT 512 : 1972 Ker LJ 645.
1 The Radd-ul-Muktar, II, 683-84.
1 Amir Ali, Mohammedan Law, II, 474.
2 Saiyad Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25 : 59 Ind App 21.
3 See Faizee, Muslim Law, 147; Sheikh Fazlur v. Musammat Aisa, ILR (1929) 8 Pat 690 ; Salema v. Sheikh, AIR 1973
MP 207 [LNIND 1972 MP 87]: 1973 MPLJ 401: 1973 Jab LJ 406.
4 Mulla, Principles of Mohamedan Law, 298.
5 Abdur Rahim, 338.
6 ILR (1878) 2 All 71 .
1 AIR 1936 All 387 : 1936 All LJ 302.
2 See also Mirjan All v. Maimuna Bibi, AIR 1949 Assam 14 : 53 CWN 302.
3 Baillie, Digest of Moohummudan Law, 238 and 109.
4 Amir Ali, Mohammedan Law, II, 496.
5 Faizee, Muslim Law, 151-52.
6 AIR 1972 J&K 8 : 1971 J&K LR 431.
1 Hamidoola v. Faizunnissa, (1882) ILR 8 Cal 327: 10 Cal LR 291; Maharan Ali v. Ayesha, (1915) 19 CWN 1126; Sadiqa
Begum v. Ata Ullah, AIR 1933 Lah 885 : 144 Ind Cas 497; Marfatali v. Jabedannessa, (1941) 1 Cal 401 (agreement
may be entered into by the guardian when the wife is minor).
2 Ayatunnissa v. Karamat, (1909) 36 Cal 23.
3 Sainuddin v. Latifan-Nessa Bibi, AIR 1919 Cal 631 : ILR 46 Cal 141.
4 Abdur Rahim, 38.
5 Tyabji, Muslim Law, 175.
1 Tyabji, Muslim Law, 184.
2 Baillie, Digest of Moohummudan Law, II, 113, 15.
3 Sattar Shaikh v. Sahidunnissa, 1979 ALJ 415.
4 Ghausibibi v. Ghulam Dastgir, (1968) 1 Mys LJ 566.
5 Chunoo Khan v. State,(1967) All WR 217; Abdul Shakkoor v. Kulsum, (1962) 1 Cr LJ 247; Ali v. Rehmani, (1972) 74
PLR 869; Md. Haneefa v. Pettemmal, AIR 1972 KLT 512 . For contrary view see Imam Saheb v. Hajju Bee, AIR 1970
AP 130 : (1971) 1 Andh WR 138: 1970 Mad LJ (Cri) 160.
6 Hamid Ali v. Imtiazali, ILR (1878) 2 All 71 .
 Page 138 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

7 Wazid v. Zafar, AIR 1932 Oudh 34 .

8 Wazid v Zafar, AIR 1932 Oudh 34 . See also Ma Mi v. Katlander Ammal, (1927) 54 IA 61 : AIR 1927 PC 15 .
1 Md. Shamsuddin v. Noor Jahan, AIR 1955 Hyd 144 : (1955) Hyd 418: 1955 Cr LJ 950.
2 Ma Mi v. Kallander, (1927) 54 IA 61; Ahamad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 : ILR (1939) 59 Cal 833; Ful
Chand v. Nazib Ali, ILR (1909) 36 Cal 184 : 1 Ind Cas 740; Sarabai v. Rabia Bai, ILR (1905) 30 Bom 536 . In M.M.
Abdul Khader v. Azeeza Bee, AIR 1944 Mad 227 [LNIND 1943 MAD 266]: 45 Cr LJ 672 and Chandbi v. Bandesha,
(1962) 62 Bom LR 866 : AIR 1961 Bom 121 [LNIND 1960 BOM 52]: (1961) 1 Cr LJ 841 the court said that the talak will
be effective from the date on which it is communicated to the wife. Most of the cases take the view that it is valid the
moment it is pronounced: Ful Chand v. Nazib Ali, ILR (1909) 36 Cal 184 : 1 Ind Cas 740; Monoli v. Moideen, (1968)
MLJ 660.
3 Rashid v. Anisa, AIR 1932 PC 25 : 54 All 46: (1932) 59 IA 21; Furzunal v. Jazu, ILR (1871) 4 Cal 588 ; Asha v. Kadir,
ILR (1910) 33 Mad 32 .
4 Ful Chand v. Nazib Ali, ILR (1909) 36 Cal 184 : 1 Ind Cas 740.
5 Kathiyumma v. Urathel, (1931) 33 IC 375.
6 Ma Mi v. Katlander Ammal, (1927) 54 IA 61 : AIR 1927 PC 15 ; Abdul v. Azeeza, (1944) 1 MLJ 17.
7 Sarabai v. Rabia Bai, ILR (1905) 30 Bom 536 ; Ahamad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 : ILR 59 Cal 833;
Waj v. Azmat, (1868) 8 WR 23.
8 Sarabai v. Rabia Bai, ILR (1905) 30 Bom 536 ; Md. Isaq v. Saira, AIR 1936 Lah 611 .
9 Baillie, Digest of Moohummudan Law, 233; Hyat v. Abdulla, AIR 1937 Lah 270 ; Rajasahib (in re:), ILR (1920) 44 Bom
44 ; Ahamad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 : ILR 59 Cal 833; Mohd. Shamsuddin v. Noor Jahan Begum,
AIR 1955 Hyd 144 : 1955 Cr LJ 950: ILR 1955 Hyd 418 (the divorce is effective from the date on which the deed is
executed).
10 Ahamad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 : ILR 59 Cal 833; Chandbi v. Bandesha, (1962) 62 Bom LR 866 :
AIR 1961 Bom 121 [LNIND 1960 BOM 52]: (1961) 1 Cr LJ 841.
11 Asmat Ullah v. Khatun Unnissa, AIR 1939 All 592 : ILR 1939 All 763 : 184 IC 517.
1 Hedaya, 525.
2 Durr-ul-Mukhtar, 123, Hedaya, 75.
3 Asha Bibi v. Kadir Ibrahim, ILR (1909) 33 Mad 22 .
4 Fatwa-i-Alamgiri, I, 499.
5 Radd-ul-Muktar, II, 697.
6 Amir Ali, Mohammedan Law, II, 484.
7 Ibrahim v. Enayetur, (1869) 4 Bom LR 13; Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25 : (1932) 59 IA 21: 135 IC
762.
8 Hedaya, 4.
1 Fatwa-i-Alamgiri, I, 499.
2 Jorima v. Hafizuddin, AIR 1926 Cal 242 ; Md. Azam v. Akhtarunnisa, PLD (1957) Lah 195; Rashid Ahmad v. Anisa
Khatun, AIR 1932 PC 25 : (1932) 59 IA 21: 135 IC 762.
3 Baillie, Digest of Moohummudan Law, I, 210, Hedaya, 583.
4 Amir Ali, Mohammedan Law, II, 480.
5 (1932) 59 IA 121.
6 Amir Ali, Mohammedan Law, II, 485.
7 AIR 1925 All 550 .
8 Bukhsh Ali v. Ameerun, 2 WR 208.
9 Jorima v. Hafizuddin, AIR 1926 Cal 242 .
10 Jorima v. Hafizuddin, AIR 1926 Cal 242 . Some hold the view that if voluntary intoxication is caused by consuming wine
made from grapes, dates, hemp leaves, or is caused by opium, or henbana seed, then talak pronounced under such
condition would be valid.
1 Mulla, Principles of Mohamedan Law, (17th Edn.), 302.
 Page 139 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

2 Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25 : (1932) 59 IA 21: 135 IC 762; Md. Azam v. Akhtarunnissa, PLD
(1957) Lah 195.
3 Furzunal v. Jazu, ILR (1871) 4 Cal 588 .
4 Radd-ul-Muktar, II, 697.
5 Usuf v. Harbanu, 1971 Mah LJ 26.
1 P. Mariammal v. Padmanabhan, AIR 2001 Mad 350 [LNIND 2000 MAD 695]: 2002 (1) Mad LW 338 [LNIND 2000 MAD
695]: 2002 (1) Marri LJ 701.
2 Yamanaji H. Jadhav v. Nirmala, AIR 2002 SC 971 [LNIND 2002 SC 90]: 2002 AIR SCW 674: JT 2002 (1) SC 478
[LNIND 2002 SC 90]: (2002) 2 SCC 637 [LNIND 2002 SC 90]: (2002) 1 SCALE 534 [LNIND 2002 SC 90]; Subramani v.
M. Chandralekha, AIR 2005 SC 485 : 2004 AIR SCW 7099: (2005) 9 SCC 407 : (2004) 9 SCALE 599 : 2004 (8)
Supreme 318.
3 Subramani v. M. Chandralekha, (2005) 9 SCC 407 : AIR 2005 SC 485 : 2004 AIR SCW 7099.
4 Yamanaji H. Jadhav v. Nirmala, AIR 2002 SC 971 [LNIND 2002 SC 90]: (2002) 2 SCC 637 [LNIND 2002 SC 90]: 2002
(1) Marri LJ 375.
5 Mahendra Nath Yadav v. Sheela Devi, (2010) 9 SCC 484 [LNIND 2010 SC 789].
1 Chukna v. Lacuma,(1969) 2 SCWN 605.
2 Gurdit Singh v. Angrez Kaur, AIR 1968 SC 142 [LNIND 1967 SC 165]: (1967) 3 SCR 789 [LNIND 1967 SC 165].
3 Surajmani Stella Kujur v. Durga Charan Hansda, AIR 2001 SC 938 [LNIND 2001 SC 412]: (2001) 3 SCC 13 [LNIND
2001 SC 412]: 2001 SCC Cr LJ 1305.
4 AIR 1963 MP 57 [LNIND 1961 MP 21]: 1962 MPLJ 770: 1962 MPC 309 : ILR (1964) MP 75 . See also Madho Prasad
v. Shakuntala Devi, AIR 1972 All 119 ; Thimmakku v. Bandlu Rangappa, AIR 1977 Kant 115 [LNIND 1976 KANT 86]:
(1977) 1 Kant LJ 206.
5 AIR 1963 Raj 95 [LNIND 1962 RAJ 37]: (1962) 12 Raj 1003: 1962 Raj LW 568.
1 AIR 2014 P&H 139 : 2014 (3) Rec Civ R 639.
2 See Gurdit Singh v. Angrez Kaur, AIR 1968 SC 142 [LNIND 1967 SC 165]: (1967) 3 SCR 789 [LNIND 1967 SC 165].
3 Sunder v. Nihala, 84 PR 1889. See also Basant Singh v. Bhagwan Singh, AIR 1933 Lah 755 (Jats of Sialkot).
4 Sunder v. Nihala, 84 PR 1889; Ghuman and Chimah jats of Sialkot recognize this mode of divorce, see also Jassan v.
Nihala, 78 PR 1884, and Basant Singh v. Bhagwan Singh, AIR 1933 Lah 755 which are of the same effect.
5 33 PR 1896.
6 AIR 1936 PC 198 : 63 IA 295.
1 Basant Singh v. Bhagwan Singh, AIR 1933 Lah 755 (earlier cases have been referred).
2 Utti v. Hira Singh, 78 PR 1893; see also M. Govindaraju v. K. Munisami Gounder, AIR 1997 SC 10 [LNINDORD 1996
SC 58]: 1996 AIR SCW 4157: (1996) 5 SCC 467 [LNINDORD 1996 SC 58]: 1996 (2) UJ (SC) 551.
3 AIR 1968 SC 142 [LNIND 1967 SC 165]: (1967) 3 SCR 789 [LNIND 1967 SC 165].
4 Inder v. Jiwa, 49 PR 1890; Ganga Singh v. V. Inder, 72 PR 1892; Raghbir Singh v. Kartar Kaur, 1954 PLR 513 (in this
case it was found that Zargar of Gurdaspur do not recognize the custom of divorce). See also Sudarshan Kaur v.
Manmohan Singh, 1977 PLR 598, where Narula, C.J., observed (it is submitted obiter) that abandonment or release
does not amount to divorce. His Lordship were called upon to determine whether a suit for declaration by the plaintiff
that the defendant is not his wife falls within the purview of the Hindu Marriage Act, 1955. That suits for such relief,
called Jactitation under English law do not fall under the scope of the Hindu Marriage Act is obvious. But it seems that
the learned Chief Justice felt that if abandonment or release will amount to divorce, it will not be covered by the Hindu
Marriage Act. It is submitted that the finding was not necessary for the decision of the petition; only declaratory relief
that can be granted under the Hindu Marriage Act is under section 11 for a declaration that a marriage is null and void.
All other declaratory relief will come under thespecific Relief Act, 1963.
5 Ishwar Singh v. Budhi, (1913) 19 IC 460 (Sikh Jats of Shakargarh Tehsil); Mal Singh v. Ram Kaur, AIR 1973 P&H 124 :
1972 Cur LJ 221 (Tarkhans); Pritam Singh v. Nasib Singh, (1956) PLR 424.
6 Gopi Krishna v. Jaggo, 38 Bom LR 751: (1930) 58 All 397 (PC).
7 Raghbir Singh v. Kartar Kaur, 1954 PLR 513.
8 AIR 1997 SC 10 [LNINDORD 1996 SC 58]: (1996) 5 SCC 467 [LNINDORD 1996 SC 58]: 1997 Marri LJ 131.
9 1958 PLR 136.
 Page 140 of 140
Chapter VII FAULT GROUNDS OF DIVORCE

1 Batto v. Punion, 1970 PLR 84.

2 Amir Ali, Mohammeden Law, (5th Edn.), II, 388.
3 Allah Baksh v. Amir Begum, 61 PR 1899, Imam Din v. Hasan Bibi, 85 PR 1906 (earlier cases have been reviewed.).
4 Section 4. This aspect has already been discussed under this title: Apostasy: Muslim Law.
5 Naraina v. Hukum Singh, 152 PR 1890 (Singla Jats of Tarn Taran Tehsil); Jamna Devi v. Mul Raj, 49 PR 1907
(Aroras).
6 See 13(1)(ii) of the Hindu Marriage Act, 1955.
7 Sunder v. Nihala, 84 PR 1889.
8 Chetty v. Chetty,(1894) 17 Mad 429.
9 Jassan v. Nihala, 78 PR 1884.
10 Keshav v. Bai Gandhi,(1915) 39 Bom 538.
11 Gurubasawwa v. Irawwa w/o Chinnappa Barashetti, AIR 1997 Kant 87 [LNIND 1996 KANT 467]: 1997 (2) Civ LJ 203:
1997 (1) DMC 402 : ILR 1996 Kant 3615.
1 Madras Aliyasantana Act, 1924; Travancore Ezhava Act, 1925, Cochin Nayar Act, 1931; Madras Marumakkattayam
Act, 1933; Cochin Marumakkattayam Act, 1938.
2 Ayyappan Kurup Krishna Pillai v. Parukutty Amma Subhadra Amma, AIR 1971 Ker 44 [LNIND 1969 KER 221]: 1970
Ker LT 442: 1970 Ker LR 526(FB); Prema v. M. Ananda Shetty, AIR 1973 Mys 69 : (1973) 1 Mys LJ 7.
3 Prema v. M. Ananda Shetty, AIR 1973 Mys 69 : (1973) 1 Mys LJ 7.
4 AIR 1993 Ker 198 : ILR (1992) 3 Ker 854 : 1992 (2) Ker LJ 303: 1993 Marri LJ 258.
5 ILR (1969) P&H 538.
1 Sangeeta Das v. Tapan Kumar Mohanty, (2010) 10 SCC 222 [LNIND 2010 SC 904].
2 In re: Mittal Ramesh Panchal, AIR 2014 Bom 80 [LNINDU 2014 BOM 471]: 2014 (1) DMC 20: 2014 (3) Mah LJ 755.
3 V.G. Rajilal v. State of Kerala, AIR 2010 Ker 146 [LNIND 2010 KER 286]: 2011 (1) Hindu LR 339: 2010 (2) Ker LT 828
[LNIND 2010 KER 286].
4 Saraswati Sarkar v. Lalit Chandra Sarkar, AIR 2010 Gau 142 [LNIND 2010 GAU 88]: 2011 (1) Civ LJ 538: 2010 (6)
Gau LR 866 [LNIND 2010 GAU 88].
5 Surjeet Singh v. Paramjit Kaur, AIR 2009 Uttr 10 : 2009 AIHC 184 (NOC): 2009 (1) ALJ 147 : 2008 (3) UC 1911.

End of Document
 Chapter VIII DIVORCE BY MUTUAL CONSENT
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter VIII DIVORCE BY MUTUAL CONSENT

Introductory
Consent theory of divorce has already been discussed in Chapter I. Reference may be made to the same.

Under the Indian personal laws, divorce by mutual consent is recognized under the Hindu Marriage Act, 19551, in
Special Marriage Act, 19542, Parsi Marriage and Divorce Act, 1936 and under the Dissolution of Muslim Marriage
Act, 1939 and now also under Divorce Act, 1869.3

Hindu Marriage Act, 1955.—Section 13B of the Act which provides for divorce by mutual consent runs:
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be
presented to the district court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976),
on the ground that they have been living separately for a period of one year or more, that they have not
been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is
not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date
of the decree.

Special Marriage Act, 1954.—Section 28 of the Act which embodies the provision of Divorce by mutual consent
runs:
(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be
presented to the District Court by both the parties together on the ground that they have been living
separately for a period of one year or more, that they have not been able to live together and that they
have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is
not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the
averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the
date of the decree.

It may be observed that the provision under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 is
identical and the language is also identical. While the provision existed in the Special Marriage Act, 1954 from the
beginning, it was introduced into the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976.

In a case1, the court was satisfied that the marriage could not continue anymore. The petition was directed to be
listed in Chambers of the Supreme Court. The parties were young in age and keen for dissolution of marriage. But
husband had some reservations as he was apprehending that as a result of the divorce he would be required to
vacate his family quarter where he was living with his ailing mother and that his future promotions may be affected
as his wife’s father was occupying a very high office. It was held that these apprehensions were not relevant for
 Page 2 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

granting consent under section 28. Being satisfied that the parties were dissolving their marriage without any
pressure or ill-will in view of the application along with affidavit filed by the parties under section 27 to that effect
before the court, the application was allowed and the marriage was dissolved. However, observations were made
by the court to allay the apprehensions of the respondent-husband.

Parsi Marriage and Divorce Act, 1936.—The Parsi Marriage and Divorce (Amendment) Act, 1988 has inserted
section 32B introducing divorce by mutual consent. The ground is at par with the Hindu Marriage Act, 1955. Section
32B runs:

Divorce by mutual consent. —(1) Subject to the provision of this Act, a suit for divorce may be filed by both the parties to a
marriage together, whether such marriage was solemnized before or after the commencement of the Parsi Marriage and
Divorce (Amendment) Act, 1988, on the ground that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed that the marriage should be dissolved:
Provided that no suit under this sub-section shall be filed unless at the date of the filing of the suit one year has lapsed
since the date of the marriage.
(2) The court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage
has been solemnized under this Act and the averments in the plaint are true and that the consent of either party to the suit
was not obtained by force or fraud, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.

The section 10A was inserted by the Indian Divorce (Amendment) Act, 2001, runs as under:

1[Dissolution of marriage by mutual consent.—(1) Subject to the provisions of this Act and the rules made thereunder, a
petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together,
whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001,
on the ground that they have been living separately for a period of two years or more, that they have not been able to live
together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred
to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the
parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit,
that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage
to be dissolved with effect from the date of decree.]

It is not necessary to pass decree nisi in a petition under section 10A. Passing decree nisi after 6 months from the
date of filing of petition and thereafter directing parties to wait for another period of 6 months to make decree
absolute would be unjust and unrealistic defeating the purpose of amendment by the Act of 2001.2

In Nisha Susan George v. Alexander Vadekkedam3, the petition under mutual consent was dismissed in default as
on the stipulated date, both the parties were not present. But since all formalities were complete and parties had not
withdrawn the petition at any time, dismissal was held not proper.

Muslim law.—Muslim law recognizes two forms of divorce by mutual consent Khul or Khula, and mubaraa or
mubaraat. They are the traditional forms, wherein wife has to pay some consideration—usually she forgoes part or
whole of her mahr —for the consent of the husband. These would be discussed in the subsequent pages.

English law.—In England divorce by mutual consent was introduced by the Divorce Law Reforms Act, 1969. The
provision was subsequently incorporated in the Matrimonial Causes Act, 1973. It has been regarded as a fact of
breakdown of marriage. Section 2 of the Act lays down that the court hearing the petition for divorce shall not hold
marriage to have broken down irretrievably unless the petitioner satisfied the court of one or more of the following
fact, that is to say—

that the parties to the marriage have lived apart for a continuous period of at least two years immediately the presentation
of the petition... and the respondent consent to a decree being granted1.

Under English law there is no requirement of joint petition. One of the parties may present the petition for divorce on
this ground. The period of separation is two years (under our law it is one year). The Hindu Marriage Act, 1955 and
thespecial Marriage Act, 1954 use the words “have been living separately for a period of one year”, while the
Matrimonial Causes Act uses the words, “have lived apart for a continuous period of at least two years”. Both the
provisions mean the same thing, even though our provision do not use the word “for a continuous period.” But it is
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Chapter VIII DIVORCE BY MUTUAL CONSENT

submitted that, under our laws the period of one year has to be a continuous period of one year and not aggregated
period of one year.

Under English law, it is a fact of breakdown of marriage irretrievable. Separation of the requisite duration is
considered to be the best evidence of breakdown of marriage and the elapse of certain time is the reliable indication
that marriage has broken down, irretrievably2. If parties have lived apart for two years and the other party consents
to divorce it is regarded as a fact or irretrievable breakdown of marriage.

If parties are living separate for a period of five years, consent of the other spouse is not necessary, it is a fact of
irretrievable breakdown of marriage and either party may sue for divorce3.

Requirements of Divorce by Mutual Consent

Under the Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936 and the Hindu Marriage Act, 1955
Divorce Act 1869 the spouses desiring divorce by mutual consent have to present a joint petition. The requirements
are:
(a) they have been living separately for a period of one year, it is two years under Divorce Act, 1869,
(b) they have not been able to live together, and
(c) they have mutually agreed that marriage should be dissolved.

Where all the three ingredients are established, divorce cannot be refused4.

But divorce under this provision cannot be granted by way of concession. It has to be granted in the manner
prescribed under this provision. In this case the divorce was granted on the date of hearing of application for
maintenance pendente lite. The wife had even not filed the written statement.5

Living separately
The “living separately” 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, that is to say, must
be living apart. In some English decisions it has been said that “living apart,” like desertion, has two elements: (a)
physical separation, and (b) intention to separate, i.e., animus of separation or mental element.

In Sureshta Devi v. Om Prakash1, the Supreme Court said that expression “living separately” means:

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 expression “have been living separately” in section 13B of the Hindu Marriage Act, 1955 does not mean living
separately under two roofs or living separate and apart. This expression means, “not living together as husband and
wife”. That this is so has been reiterated by J.N. Bhatt, J., of the Gujarat High Court in Kiritbhai Girdharbhai Patel v.
Prafulaben Kiritbhai Patel.2 In this case on account of demise of wife’s father, the spouses went to London (where
wife’s father had died) and stayed together under the same roof for sometime but no marital intercourse took place.
The learned Judge observed:

The expression “have been living separately” in section 13B(1) of the Act does not, necessarily, mean that the spouses
have to live in different places. What the expression would seem to require is that they must be living apart, viz., not living
with each other as ‘husband’ and ‘wife’. It must be borne in mind that separation may be consensual or compulsory. The
averment that the spouses, unfortunately, could not consummate the matrimonial relations since December, 1986, is not
“ipse dixit” negatived by the mere fact that they jointly went and then stayed under one roof, at London for sometime. There
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may be cases where the parties may have been compelled to stay in the same house and under same roof or premises
and yet can be said to be living separately for want of consummation of matrimonial relations.

In Sureshta Devi v. Om Prakash1, the Supreme Court observed that expression “have not been able to live
together” seems to indicate the concept of broken down marriage so much so that there is no possibility of any
reconciliation.

Physical separation.—The typical case of physical separation is where both the spouses have established
separate households, at two different places. But it may happen, as it often happens in modern city life, that parties
might not be living under separate roofs, yet they might be living separately, if they have established separate
households. In Santos v. Santos, 1 an English court said that household “essentially refers to people living together
by a particular kind of tie, and if that tie is broken, only roof remains. Thus, where spouses are living under the
same roof, the test whether they are or are not living in separate households is: whether one party continues to
provide matrimonial services to the other and whether there is sharing of domestic life. In Hopes v. Hopes, 2
husband confined himself to the two rooms of the house and ceased to have all contacts with his wife. This was
held to be separation of households3. On the other hand, where there was estrangement between the parties and
they had ceased to have sexual intercourse, yet they shared the same living room, ate at the same table and sat at
the same fire, it was held that there was no separation of households4. In Mouneer v. Mouneer,5 the spouses were
on bad terms for sometime, so much so that wife filed divorce proceeding against her husband on the ground of
cruelty. The parties had children of marriage. Thereafter attempts at reconciliation were made which did not make
much headway. Divorce proceeding also remained pending. In this state of things, the parties continued to live
under the same roof, though they slept in separate bed rooms. They usually took their meals together, and the wife
did most of the household cleaning. Thereafter, the husband left the house and petitioned for divorce, wife
consenting. The court held that the fact of living separate for two years was not established. The spouses continued
to live in the same household, might be “from a wholly admirable motive of caring properly for their children”. But
their motive would not change the fact that they did not separate from the household.

Case of Fuller v. Fuller, 6 provides a unique fact situation. Husband and wife had separated in 1964, and the wife
was living with another man as his wife assuming his name. In 1968 her husband had a serious heart attack and he
needed somebody’s care, if he was to live again. In these circumstances he shifted to wife’s house where she was
living with her lover. He slept in the back bedroom and lived there as a lodger. He was provided with food and
laundry by the wife in return of weekly payment. The wife looked after him as his condition required some care.
Holding that they were not living in the same household, the Court of Appeal observed that living together connoted
something more than living in the same household. It is necessary that parties must be living there with each other
as husband and wife, rather than as lodger and landlady. This is an exceptional case in which parties lived under
the same roof and the wife (or for that matter any one of the two) providing services to the husband, but then not in
the capacity of the wife, but in some other capacity.

Intention to live separately.—In “living separately” or “in living separate and apart” two questions arise as to
mental element and physical separation. Whether it is necessary that there should be an intention to separate.
Whether the communication of such intention is necessary. This has to be looked at in the context of second
requirement of divorce on the basis of mutual consent under our law, viz., spouses are required to show that they
have not been able to live together. But this question would arise only after one year or more has elapsed and
parties decide to separate by mutual consent. Till then mutual element will not arise.

In Santos v. Santos, 1 the Court of Appeal observed that living apart only commences when one party recognizes
that the marriage is at an end. It is in this context that living separately has relevance, because living separately is
not living apart from each other by force of circumstances. In a New Zealand case, Sullivan v. Sullivan, 2 Henry, J.,
said that until that date the spouses are not living apart, “although they may be apart”, though it is not necessary
that their intention to live separate should be communicated to the other spouse. In Canada and New Zealand
where analogous provisions exist there seem to be an unanimous view that a mental element to live separately is
needed. The relationship does not end, in the words of Ceissen, J., so long as both spouses bona fide recognize
that it is subsisting. The learned Judge observed:

...living apart does not begin to exist until that date on which, if the spouse in question were compellingly asked to define his
or her attitude to cohabitation, he (or she) would express an attitude averse to it. Until that stage is reached cohabitation is
not... broken. When it is reached living apart begins3.

In the context of other statutory provisions where the expression “living apart” is used, English courts have
maintained that the law has regard to what is called consortium of husband and wife, which is a kind of association
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only possibly between husband and wife; a husband and wife are living together not only when they are residing
together in the same house, but also when they are living in different places, even if they are separated by the high
seas, provided the consortium has not been brought to an end4.

It is doubtful as to what utility these precedents would be in our context. Under our law parties have to show that
they have been living separately for a period of one year or more. It is submitted that whether they started living
separately with an intention to do so, is immaterial. May be one party left, as he or she found the living together
difficult, unbearable or not to his or her liking. May be at that time, the spouse leaving did not contemplate (and
most people do not) that he or she was leaving for good, but he or she just left the matrimonial home. When a year
expires, may be he or she thinks or comes to conclusion that living together is not possible and tells so to his or her
spouse. May be the other spouse agrees that they cannot live together. Once so agreeing, he or she may also
agree to depart with mutual consent or he or she may not give his or her consent for divorce by mutual consent. In
the latter case the other spouse can do nothing. The spouse may continue indefinitely or till such time that he or she
is convinced of the futility of living separately in such manner or some way out is found out.

Parties have not been Able to Live Together

As has been seen above once factual separation of one year or more is shown, the first essential of divorce by
mutual consent is established. It is not very clear what the expression, “may have not been able to live together”
means. The very fact that they have presented a petition by mutual consent is indicative of this fact that they have
not been able to live together. What more can they say? Or what more are they required to say under this
provision? Have they to establish by some evidence that they have not been able to live together? It is submitted
that this expression is redundant, and means nothing. Once parties present a petition for divorce by mutual
consent, it implies that they have not been able to live together. Further one year’s living separately and parties not
resuming “living together” or cohabitation is clearly indicative of the fact that they have not been able to live
together. What more should be required. It is submitted that nothing more is required. Thus these words are
obviously superfluous. These words would have no relevance even in the context that consent should be free. This
is the basic requirement of law: Whenever parties present a petition by mutual consent, their consent has to be free.
It is the duty of the court to ascertain that consent of each party is free.

One year’s living separately.—The requirement is that the parties should have been living separately for one year
or more preceding the presentation of the petition. When does the period of separation begin? Will it be reckoned
from the day parties separated ? In English case, Warr v. Warr, the Court held that the day on which separation
took place should be excluded in computing the period specified in section 1(2)(d) of the Matrimonial Causes Act,
1973. If we want to spin fine we may say that if separation took place in the forenoon, computation of period should
begin from that day and if it took place in the afternoon, that day should be excluded. Further, the last day in the
period of one year in our law (two years under English law) should be completed day, i.e., end of day, i.e., twelve
O’clock mid-night. Thus, a petition filed on first anniversary of the commencement of separation will fail, as period of
one year would not be completed then. It should be filed a day thereafter or at any time thereafter.

In Rupali Singh v. Nil,1living separate for one year as mandated by section 13B of Hindu Marriage Act, 1955
dispensed with. However, Delhi and Gujarat High Courts have held that period of separation of one year is
mandatory.2 It is submitted that it can be dispensed with keeping in view justice, equity and the circumstances of
case.

Indian law does not use the words “immediately preceding the presentation of the petition” or the words “for a
continuous period” [as does section 1(2)(d) of the Matrimonial Causes Act, 1973], but use the words “they have
been living separately”. The words “have been” indicate that it should be unbroken period of one year. They indicate
continuity of the period as well as that it should be preceding the presentation of the petition.

Transfer of petition.—Pursuant to the Compromise Deed, an application was filed before the Court under section
13(b) of the Hindu Marriage Act and under article 142 of the Constitution praying Supreme Court that court may
exercise its extraordinary jurisdiction under article 142 of the Constitution and dissolve the marriage by a decree of
divorce by mutual consent under section 13(B) of the Hindu Marriage Act, 1955, as amended by the Marriage Laws
(Amendment) Act, 1976. The petitioner and respondent No. 1 stated in the said application that their marriage has
broken down irretrievably and there was no chance of their living together, and therefore, they had mutually agreed
that the marriage should be dissolved. It is further declared that mutual consent had not been obtained by force,
fraud or inducement.
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Having perused the records placed, the court was satisfied that the marriage between the parties had broken down
irretrievably and with a view to restore good relationship and to put a quietus to all litigations between the parties
and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the
parties, in exercise of the power vested in the court under article 142 of the Constitution of India, the application for
divorce by mutual consent was allowed the marriage solemnized between the consenting parties on 13th June,
2001 at Delhi was dissolved. 1

In another case, the marriage was found to have broken down irretrievably without any chance of spouses coming
together. The couple had been living separately for over one year. In the circumstances, decree for divorce by
mutual consent was granted under section 13B and marriage was dissolved with immediate effect. 2

Statement of parties at the time of presentation of joint petition.—A view has been propounded that it is the
obligation of the court that statement of parties should be recorded immediately on the presentation. That this is
misconception has been clearly stated in the matter of Sharan Kumar.3

Personal appearance of parties.—Is personal appearance of parties must in these proceedings? The Punjab and
Haryana High Court has held that it is not necessary. The parties can be represented by their duly appointed
attorneys4. Parties can also waive right to be heard. The court can act on affidavits and pass suitable orders1.

In a proceeding for divorce by mutual consent, personal appearance of petitioner-husband can be dispensed with
and his attorney can act as per instructions of his principal and also depose in the court to satisfy inquiry as
required under section 10(4) of Code of Civil Procedure. 2

Withdrawal of Consent by One Spouse

The third requirement is that parties have mutually agreed that marriage should be dissolved when a joint petition is
filed, i.e., mutual agreement to dissolve marriage and filing of joint petition are essential ingredients. 3 There is
obviously mutual consent of the parties, i.e., parties have mutually agreed to separate, unless it is shown that the
consent of one of the parties was not free. Obviously if the consent of one of the parties was obtained by fraud,
force or coercion, it is not a free consent.

The important question that arises is if one of the parties comes before the court and says that he or she has
changed his or her mind and therefore wants to withdraw his or her consent, can he or she be allowed to do so ?
This question has come before the Bombay and the Punjab and Haryana High Courts. In Jayashree Ramesh
Londhe v. Ramesh Bhikaji Londhe,4 wife had filed a petition for judicial separation or in the alternative, for divorce
on several grounds. Thereafter the petition was withdrawn, and on the same day a joint petition for divorce by
mutual consent was presented. The parties made the usual averments viz., they have been living separately for
more than one year, they have not been able to live together and had mutually agreed for divorce. But later on
husband changed his mind and put in an application that he did not desire divorce. He averred that he was a
person of very indecisive and wavery mind and, at the time of the presentation of the petition, he did not understand
as to what he was doing, though he consented to present the petition. He asserted that he did not want divorce.
The trial court allowed him to do so, and dismissed the petition. On appeal, the Bombay High Court held that once
the consent was given it could not be withdrawn unilaterally by either party. The Court added that once a joint
petition by mutual consent was filed, no party could abandon it or withdraw from it without the consent of the other
party. B.C. Gadgil, J., observed:

The position can very well be seen when we take into account the scope of an enquiry contemplated under sub-section (2).
I have already observed that the inquiry should be more particularly directed in order to find out as to whether the
averments in the petition are true or not. As far as the consent aspect is concerned. The inquiry should obviously be with
respect to the consent that was mentioned in the petition. It will not be possible for any party to voluntarily agree to have
divorce by mutual consent or to revoke or withdraw consent at a later stage. Such permission will nullify the very purpose of
joint petition.

This was also the view of the Punjab and Haryana High Court in Nachhattar Singh v. Harcharan Kaur1.

On the other hand in Santosh Kumari v. Virendra Kumar, 2 the Rajasthan High Court observed, “the parties or any
one of them has a right to withdraw the application filed under sub-section (1) of section 13B till the expiry of the last
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day of eighteenth month of filing of application.” This is now the view of the Punjab High Court and High Court of
Kerala and Karnataka3. But Delhi High Court took the view that once consent is given it cannot be withdrawn4. The
Supreme Court has taken the view that consent can be unilaterally withdrawn5.

It is submitted, in our social context, the Bombay and Punjab views are correct. It is likely to happen that after joint
petition has been moved during the transitional period, i.e., after six months and before eighteen months, someone
somewhere among relations and friends, would try to dissuade one the parties not to go in for divorce. It may also
be that one of the parties may change its mind. This should not be allowed to happen, as by the time the petition is
moved the marriage had in fact broken down irretrievably. The transitional period, the period of waiting, is provided
for reconciliation so that parties may be able to assess their position and may like to withdraw from their
irretrievable step. It is not meant for one party alone to change its mind6.

The aforesaid submission made by the authors has not found favour with the Supreme Court though it is regrettable
that our learned judges continue to apishly follow not merely foreign precedents but also foreign authors ignoring
the Indian authors. Sometimes judges are not even aware of the books written by Indian authors. In Sureshta Devi
v. Om Prakash,7 the Court has held that petition of divorce by mutual consent can be withdrawn unilaterally. The
reasoning propounded by the Court was that the filing itself of the petition does not severe the marital ties. There
was a waiting period of 6 to 18 months, i.e., interregnum to ponder and think and take advice, and if one of them
has second thought during this period, he or she can withdraw the petition unilaterally. It is submitted that the
authors do not agree with this view. The interregnum is time given for reconciliation. There is nothing like unilateral
reconciliation. The learned judges in their zeal of saving marriages forgot to appreciate the fact that unilateral
withdrawal of petition would and could not save the marriage. It would mean imposing a bad and completely broken
down marriage on a reluctant spouse. The ultimate aim of divorce law is to end a bad marriage and let parties be
free. Continuance of a broken marriage does not serve any social purpose, rather it is socially unhealthy. The basic
purpose of divorce by mutual consent is to end a bad marriage respectably without hurling all sorts of allegations on
each other and without baring ones personal life in public. Nobody would jump in and file a petition without weighing
the pros and cons and if free consent is lacking then it should be so proved. Hence the learned Judges of Supreme
Court have overlooked this reality. In this case the parties had been living separate and apart since 1968 and
therefore it was an irretrievably broken down marriage.

However a breath of fresh air has been brought by Ashok Hurra v. Rupa Bipin Zaveri. 1 In this case the wife
withdrew the consent after 18 months. Divorce was granted in this case in spite of her unilateral withdrawal of
consent as the marriage was found to have irretrievably broken down, though the question whether mutual consent
should continue till divorce decree is passed was left open. However, the Supreme Court observed that Sureshtha
Devi ought to be reconsidered. But again in Anil Kumar Jain v. Maya Jain2, the Supreme Court has said that mutual
consent should subsist till passing of final decree. If one party withdraws consent even after expiry of 6 months, the
petition would stand dismissed. But the Court has reserved its right to grant divorce under article 142 of the
Constitution. The Court observed that it is the exclusive power of the Supreme Court, though a ground as
irretrievable breakdown does not exist on Indian Statue book, to convert any petition or proceeding under section
13 of the Act into one under section 13B to grant decree by mutual consent without waiting for statutory period of 6
months by applying doctrine of irretrievable breakdown. But other court is not empowered to do so.

In the instant case the wife was living separate for a period of 7 years and was insisting on living separate. Husband
had transferred certain properties in her name and on registration of the same she withdrew her consent. Under
these circumstances divorce was granted to husband.

Where husband wilfully absented himself from next date of hearing, an inference that his consent, continues would
be drawn. Had he wanted to withdraw consent, he should have taken a positive step and should have expressed
clean intention to do so. 3 In Smruti Pahariya v. Sanjay Pahariya4, the husband was absent on first hearing. The
case was adjourned to the next date. The next date was preponed by an ex parte prayer and a decree is also
passed ex parte. Such a decree is liable to be set aside as the court has erred by first preponing the date and
secondly, by passing decree, both in absence of husband.

The Court further observed that continuance of consent should be till the decree is passed. Therefore, we see that
the Supreme Court is veering towards the view taken in Sureshtha Devi (supra).

Rejection of joint petition where wife failed to appear due to illness is not proper. 1
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Motion of the Parties: Whether the Period of Six Months to 18 Months

Mandatory
Sub-section (2) lays down that after the joint petition has been moved, parties should move a motion to the court for
passing a decree of divorce after six months but not later than eighteen months. But this procedural requirement
has been held by courts as not mandatory.

The Rajasthan High Court considered the question in Santosh Kumari v. Vierndra Kumar2, wherein the husband
who had filed a petition for divorce against his wife on the ground of cruelty and desertion sought to convert it as
into a petition for divorce by mutual consent. The efforts by the court at reconciliation failed and wife also desired
divorce. The court treated the petition as petition for divorce by mutual consent and passed a decree for dissolution
of marriage, ignoring the formality of joint petition. The court also observed that period of 18 months mentioned in
section 13B(2) was upper limit for the withdrawal of the petition and it did not mean that the court could not pass a
decree thereafter dissolving the marriage. It means that after 18 months the petition cannot be withdrawn and the
court may grant a decree of divorce if other requirements are satisfied.

A petition on a fault ground can be converted into a petition for divorce by mutual consent3.

In Jagjit Singh v. Gunwant Kaur4, A.S. Bains, J., accorded his approval to a compromise between the spouses for a
divorce by mutual consent. The learned Judge treated the compromise application as a petition for divorce by
mutual consent. It should be noticed that the compromise was effected when the appeal was pending in the High
Court. M.R. Sharma, J., of Punjab and Haryana High Court had taken this view in a series of cases5. The case of
Jagmohan Ahuja v. Sudesh 6 was a case of revision petition. The learned judge called for the original record of the
petition from the trial court and permitted the conversion of the petition for divorce on fault grounds into a petition by
mutual consent under section 13B of the Act, and passed a decree of divorce recording her satisfaction that parties
were not in collusion. It is interesting that in Surinder Pal Kaur v. Mohinder Pratap Dass6, M.R. Sharma, J.,
entertained a petition for divorce by mutual consent at the appellate stage (i.e. in the High Court) and adjourned the
petition for six months, and on the resumed date of hearing, after the expiry of six months, recorded the statement
of the parties and granted a decree of divorce by mutual consent recording satisfaction that the petition was not
collusive. These are, it is submitted, good cases of social engineering where the court realizing that the marriage
had broken down irretrievably, allowed (or rather directed) the conversion of a petition on fault grounds into a
petition for divorce by mutual consent. In all these cases, the court gave a go-bye to the requirements of subsection
(2). In Surinder Pal Kaur’s case it seems, the learned judge adjourned the converted joint petition for divorce for six
months, not so much as to comply with the requirement of sub-section (2), but he thought that probably the
marriage could still be saved; might be, parties were able to think coolly and reconcile.

However, in Jai Bhagwan v. Anita Rani1, Tiwana, J., of the same High Court accepted an appeal against the decree
of the trial court on the ground that procedural requirements of sub-section (2) were not adhered to. In Kanchan v.
Kulmani2 and Satyabhama Nayak v. Narendra Kumar Nayak3, the Orissa High Court held that minimum period of
six months was mandatory. But in Jagroop v. General Public4, P.C. Jain and D.S. Tewatia, JJ., reverted to the view
of M.R. Sharma, J. Continuing to hold this view, D.S. Tewatia and Surinder Singh, JJ., in Rita Sobha v. Dharmpal5
allowed divorce at the motion state of appeal. They observed:

In view of the fact that the parties have been living separately for a period of more than a year, which fact is evident from
the findings of the matrimonial court and the parties having now desired to secure a decree of divorce by mutual consent in
terms of section 13B of the Hindu Marriage Act and having made statements to that effect in court we are inclined to
declare their marriage dissolved and grant a decree of divorce without waiting for the period of six months as envisaged in
subsection (2) of section 13B of the Hindu Marriage Act as the said period is merely meant to give time to the parties for
rethinking.

The Bench further observed:

In the present case, the parties have been litigating for quite some time and having not reconciled to live together, it would
be futile to prolong their agony by allowing six months’ period before passing the decree of divorce.

Then came the case of Major Ranbir Singh Sangha v. Nargis Sangha, 6 wherein the same view was propounded.
The following passage from the judgment of Punchhi, J., is very forceful statement of the social engineering in
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petition for divorce where the marriage had evidently broken down irretrievably and there was no use in retaining
the hollow marital bond:

I can see no violation of the spirit of the statute when marital discord has otherwise been brought to surface in court, though
in criminal proceedings, leaving out any chance of collusion between the parties so as to play a fraud on the statute.
Collusion being out of picture and litigation between the parties having remained rife for a time more than six months tends
me to invoke the inherent jurisdiction of the High Court (for it is not a District Court hedged by a time factor under section
13B of the Act) and grant divorce to the parties under the spirit of section 13B, of the Hindu Marriage Act, though not in
accordance with its letter. I cannot shut my eyes to the reality of the situation that I have placed before me two human
beings, who have wrecked their lives in mutual acrimony, but now standing at their respective launch pads look forward to
start their lives anew. I see no reason why I should refuse their prayer to grant them relief now and let them wait for six
months, and make it prone to many a slip between the cup and the lip. And even otherwise the spirit of section 13B of the
Hindu Marriage Act in providing for a six months’ period to lapse between the prayer and ultimate grant of divorce is, as it
seems to me, based on the good legislative sense that there may be a chance for reconciliation between the parties. I have
satisfied myself that there is none whatsoever in the instant case and rather the parties want to break their matrimonial
bond right now at this moment.

This case is instructive on several counts. It was a criminal revision which was allowed to be converted into a
divorce petition. Then on such conversion, the learned judge did not think it worthwhile to wait for a period of six
months as required by sub-section (2). The learned judge observed, “I should refuse their prayer to grant them relief
now and let them wait for six months, and make it prove to many a slip between the cup and the lip”. Punchhi, J.,
felt that he should follow the spirit of law and not the letter of law and when the Court was convinced that there was
no possibility of reconciliation between the parties, the formal requirements of the section could be given up. We are
in respectful agreement with the learned judge.

The view has been reaffirmed in Krishna Khetarpal v. Satish Lal1 on the view propounded in Major Ranbir
Sangha’s2 case and other cases. Taking the same view, the court said:

This court in each of the said cases, as it appears to us, perceived substantial compliance of the requisite elapse of periods
conditional to the grant of relief and on recording satisfaction of free consent and lack of collusion, granted the relief
instantly. And in our view rightly. The fact of fruitful years in human life being short and the possibility of the litigating parties
rearranging their lives after the divorce by mutual consent, also seem to have been the pervasive factor when this court
granted instant relief without letting the parties to go in for another bout of litigation in the processual mill.

In Inderawal v. Radhey Raman, 1 Deoki Nandan, J., of the Allahabad High Court rightly observed:

The policy of the law having undergone a change after the Marriage Laws (Amendment) Act, 1976, it is possible now to
dissolve a marriage by agreement between the parties although none of the grounds of which a marriage may be dissolved
by a court, be found to exist.

In this case also the court ignored the technical and formal requirement of section 13B2. Following this trend in In
Re: Grandhi Venkata Chitti Abbai, 3 statutory period of 6 months was waived as the facts were evident enough to
show that the marriage between the parties was broken down in unequivocal terms.

Now the trend is to waive the waiting period of 6 months considering the facts and circumstances of the cases. 4
But Punjab & Haryana High Court has held that this period cannot be waived. 5 But this controversy is still
continuing. Overwhelmingly the High Courts are waiving this period by calling it a directory provision. 6 But some
High Courts do not agree. 7

If a divorce petition is converted into a petition by mutual consent date would relate back to the filing of original suit
and 6 months would be reckoned from there. 8

But the same High Court allowed waiver where marriage was found to be irretrievably broken down. 9 Also where
parties were living separately for the past 9 years this period was waived. 1 In Poonam v. Sumit Tanwar,2 a writ
petition was filed against the order of the Family Court directing parties seeking divorce under this provision to wait
for the statutory period of 6 months. Parties wanted waiver of this period by way of writ petition. The Supreme Court
in a strongly worded judgment observed that filing such writ petitions show gross irresponsible behavior of the
parties as well as their counsel, especially under the circumstances where there was no delay at the end of the
Family Court.
 Page 10 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

In Davinder Singh Narula v. Meenakshi Nangia, 3 the Supreme Court wanted the waiting period (cooling period of
six months as is being said) of six months to be waived off. In this case the circumstances adequately showed that
there were no marital ties left between the parties. Hence, to do complete justice, the decree for dissolution of
marriage by mutual consent without waiting for full “cooling period” to expire was granted. However, Allahabad High
Court has held it to be mandatory. 4

In most of these cases, the courts have observed that it is their duty to see that consent of either party is not
obtained by fraud or force or undue influence. Obviously, in such cases consent is not free. While passing a decree
under this section the court has to be satisfied that consent was not obtained by force, fraud or undue influence. In
the present case it was no where recorded that the court is satisfied of same, further dates from when parties were
living separate was not mentioned, no effort at conciliation shown, the wife was claiming that her signatures were
obtained under false pretext and separation was not there for a period of 1 year. Such mechanically passed
decrees are liable to be set aside. 5 The Court also observed that it was their duty to see that there was no
collusion. Punchhi, J., observed that there was a word of difference between consent and collusion. Whereas
consent between the two people is a state of being of the same mind, collusion is between the two and is secret
agreement to deceive. It is an effort to mislead the court from the true state of affairs6. It is submitted that in the
context of divorce by mutual consent, collusion between the parties to get divorce hardly makes any sense. In fact
when, “collusion” was made a discretionary bar in English law, it facilitated divorces by mutual consent. If parties
have entered into certain collateral agreement for the purpose of facilitating divorce, the court did not stand and
should not stand in the way.

Once a settlement is arrived at in which wife received Rs. 9 lakhs and then Rs. 2 lakhs and parties withdrew all
cases filed. Later on she cannot be allowed to ask a share in her husband’s house. 7

But conditions such as foregoing the right to claim permanent maintenance1and that custody of child shall remain
with mother who then will not ask for maintenance2 are not tenable in law as being against public policy.

Compromise Decree of Divorce

In Joginder Singh v. Pushpa3, it was held that a compromise decree of divorce was not a nullity. This was upheld by
the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha4.

But a decree of divorce can be granted only on the basis of a ground laid down in law. Thus, since under the Indian
Divorce Act, 1869 (the pre Amended Act) divorce by mutual consent is not recognized, a compromise decree of
divorce is invalid5. In Apurba Mohan Ghosh v. Manashi Ghosh6, a case under Hindu Marriage Act, 1955, the
Calcutta High Court dissented from Joginder Singh’s case and following Reynold Rajmani’s case said that a decree
of divorce solely on the basis of compromise, without the existence of any of the grounds laid down the Act could
not be passed particularly when section 13 specifically lays down that divorce can be granted only on the grounds
specified in the Act. Even under section 13B such a decree cannot be passed, as compliance to the provisions of
that section is necessary. It should be noted that Joginder Singh’s case was approved by the Supreme Court in
Saroj Rani’s case where the Supreme Court said that all cases of consent decree could not be said to be collusive
and divorce by mutual consent could be obtained. It is interesting to note that in this case parties had been hotly
contesting the case for several years. In the High Court the parties averred that they could not and would not live
together and wanted a divorce by mutual consent. They also submitted a compromise agreement regarding the
settlement of property. The High Court passed a decree accordingly. This, it is submitted, is the correct position. In
Paresh Shah v. Vijaynthimala7, joint petition of the parties was allowed. Both the parties were educated and in
position to understand the concept of marriage but their feelings, maladjustments and temperament had made their
lives miserable, hence their request of grant of decree of divorce by consent was accepted.

Further any payment that has been agreed to be made under the compromise deed ought to be honoured. 8

Is a Decree under this provision Appealable.—It is according to Sushma Pramod Taksande v. Pramod
Taksande.1 The question raised was that decree under this provision is like a consent decree it is not appealable.
But it was held that since section 28 of Hindu Marriage Act gives a right to appeal against all original decrees
passed under this Act by the trial court, it is appealable.1
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Chapter VIII DIVORCE BY MUTUAL CONSENT

Muslim Law
Khul andMubaraa .—Khul or Khula and Mubaraa or Mubaraat are two forms of divorce by mutual consent but in
either of them, the wife has to part with her dower or a part of it or some other property. In the then prevailing
conditions in Arabia these forms of divorce were considered to be progressive and part of reformist measures
introduced by the Prophet. A verse in Koran runs as under:

And it is not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both
fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the
woman ransom herself.

A tradition is also cited in support. One Jamila, wife of Sabit-bin-Qais, appeared before the Prophet and said that
though she had no complaints to make against Sabit, her husband, as to his morals or religion, she could not bring
herself to be wholeheartedly loyal to him as a Muslim wife ought to be as she hated him, and, therefore, requested
the Prophet to grant her divorce since she did not want to live in Kufr (disloyalty). The Prophet enquired of her
whether she was willing to give him back the garden that he had given her and her agreeing to do so, the Prophet
sent for Sabit, and asked him to take back the garden and grant her divorce2.

The word “Khula” in its original sense means “to draw” or “dig up” or “to take off”, such as taking off one’s clothes or
garments. By analogy. It is said that spouses are like clothes to each other and when they take “Khula”, each takes
off his or her clothes, i.e., they get rid of each other. In law it is said to signify an agreement between the spouses
for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. It is
also said as “laying down by husband of his right and authority over his wife for an exchange.” 3 According to the
Fatwa-i-Alamgiri4:

“When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine law,
that they cannot perform the duties imposed on them by the conjugal relationship, the woman can release herself from the
tie by giving up some property in return, in consideration of which the husband is to give her a khula, and when they have
done this, a talak-ul-bain would take place.

In Buzul-ul-Raheem v. Luteefutoon-nissa5, the Privy Council said:

A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a
consideration to the husband for her release from the marriage tie. In such a case, the terms of bargain are a matter of
arrangement between the husband and wife, and the wife may, as a consideration, release her dyn-mohr and other rights,
or make any other agreement for the benefit of the husband.

In short, khul form of divorce is one where wife makes a proposal for divorce, either because of her dislike for her
husband or for any other reason, to her husband in consideration of her agreeing to forgo her dower or to give
some property to him when the proposal is accepted by the husband, it results in divorce.

Capacity.—Under all schools of Sunnis and Shias, it is necessary that parties to khul should have capacity just as
in talak. The husband and wife must not be unsound mind and must be adult, i.e., must have attained puberty.

A minor, or a person of unsound mind has no capacity to enter into a khul. The khul may be entered into by any
party through an agent1. Under the Hanafi law, the guardian of a minor wife may enter into a khul on her behalf. In
such a case, the consideration will be payable by the guardian, and not by the wife. Even under the Hanafi school,
the guardian of a minor husband cannot enter into a khul2. It appears that under the Shia law, a minor or insane
wife cannot enter into a khul. According to the Shafiis, the khul is a personal right, and therefore wife alone can
initiate the khul. But if she is a minor, her father can enter into a khul on her behalf.

A khul has to be effected during the subsistence of marriage, though it may be effected during the period of idda
also in a revocable form of talak.

Among the Sunnis a khul made by man in a state of intoxication is not valid. But a khul made by an insolvent
person is valid. It should also be arrived at during tuhr in which no marital intercourse has taken place, in case
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Chapter VIII DIVORCE BY MUTUAL CONSENT

marriage has been consummated. But if the wife is past child bearing age or has ceased to menstruate, it may be
pronounced any time.

Among the Sunnis the khul is valid even if given under compulsion. The Durrul-Mukhtar says that where a wife is
compelled by ill-treatment or cruelty of the husband or for any other reason to seek the khul or she is forced to
accept khula, it would amount to talak and not khul with the result that the wife will not be liable to part with her
dower or part with the property she agreed to give him in consideration of his agreeing to khul. This is so both
among the Sunnis and Shias.

Among the Shias a khul made under compulsion is not valid.

Khul is not available in irregular marriages, as in such marriage wife can walk out of the marriage at any time.

Form of Khul.—The Sunnis do not insist on any specific form of khul. An agreement of khul made in any form by
the parties would result in khul. In other words, if husband accepts wife’s proposal for khul it would result in
dissolution of marriage. Of course, the consent must be free. The wife should understand what she is wanting to do.
No specific words need be used. Even the word khul need not be used. However, the use of word khul may imply
dissolution of marriage, if consideration is mentioned. In Buzul-ul-Raheem v. Luteefutoon-nissa, 1in a suit for dower
by the wife, the husband set-up a khul-anama in his defence alleging that wife had given him khul and in
consideration she had forgone her dower. It was found that he had obtained the deed under compulsion and
duress. The Privy Council held that admission of khul by the husband and the failure of the husband to prove that it
was made by the wife with her free consent resulted in a talak, and thus dower was payable by him. The use of
word “khula” is not material. If the words clearly indicate the intention to dissolve the marriage, the khul can be
implied or deduced from the words. Thus if a husband says, “I have released thee for rupees one thousand” or
when the husband says to the wife, “Give thyself khul” and wife says, “I have given myself talak”, it results in khul
form of divorce. In the second case, use of the word “talak” by the wife is immaterial. However, where a wife says to
the husband, “Give me khula for Rs. 1000” and the husband says to her “I have given you talak”. Some hold that it
would result in khul, while others hold would result in talak. It seems it would be a question of construction of words
used by the parties for ascertaining the true intention of parties.

The Shias, on the other hand, insist on a special form of khul. However all the schools agree that consent of the
husband should be in a definite language. Thus, if a wife says, “Give me a khul in exchange of my dower,” and the
husband replies, “I do”, a legal dissolution of marriage results2. According to the Sunnis, the consent to khul may be
conditional or unconditional. An unconditional khul results in an irrevocable divorce as in talak-ul-bain. Among the
Shias conditional khul is not recognized.

Consideration for Khul.—Although consideration for khul is essential, the actual release of the dower, or delivery
of the property constituting the consideration for khul is not a condition precedent for the validity of the khul. Once
the husband gives his consent to the khul, it results in an irrevocable divorce as in talak-ul-bain. The husband has
no power of cancelling the khul on the ground that the consideration has not been paid. His remedy is to sue the
wife for it.

The consideration for khul may be anything. Usually it is the mahr, whole or part of it. But it may be any other
property though it should not be illusory, i.e., something over which the woman has no right. If compensation is
illusory, the Sunni law takes the view that the husband is not bound to release the wife. “Whatever is lawful as
dower, or capable of being accepted as dower, may lawfully be given in exchange of khul3. Since any consideration
which is not illusory is valid a khul may be entered into in consideration of a fraction of the dower. When this is so,
and the wife has not received her mahr, then neither the wife can claim the balance nor can the husband claim the
fraction. If she has received the mahr, then she must pay the fraction of the whole dower, if the marriage has been
consummated and if the marriage has not been consummated, then she must give the fraction of half of the dower.
It is possible that the khul may be entered into on consideration to be determined later on. In such a case
consideration cannot be more than the amount of mahr unless the wife agrees. It cannot also be less than the
amount of mahr, unless the husband agrees1.

Result of Khula.—Among the Hanafis and the Ismailis, the khul divorce results in an irrevocable divorce as in
talak-ul-bain. The Shaffiis differ in as much as they do not require an intermediate marriage if the parties concerned
want to remarry. The Ithna Ashari authorities differ among themselves whether or not the khul results in an
irrevocable divorce. However, they agree that once the husband accepts the khul, he has no power of revocation,
but the wife may at any time during the idda re-claim consideration, and if she does so, the husband may revoke
the khul at his option 2.
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Chapter VIII DIVORCE BY MUTUAL CONSENT

Retraction and revocation.—Under all schools of Muslim law a proposal for khul made by the wife may be
retracted by her at any time before it has been accepted by the husband. It also stands revoked if before its
acceptance, she rises from the meeting in which it is made. But the husband cannot revoke it by thus walking away
from the meeting. The husband is not allowed to do so, even if proposal comes from him, since khul on the part of
the husband is regarded as a suspension of talak on the acceptance by the wife.

A khul with an option to the husband to revoke it cannot be validly entered into. According to the Hanafis, the khul
with an option is valid and operates as an absolute divorce, and the option is void. Under the Shia law, both the khul
and the option are void3.

Among the Shias, if a man enters into khul and stipulates for a power to revoke it, khul will not be valid.

Non payment of consideration.—Under Muslim law, failure of the wife to pay the consideration for which husband
agreed to give her khula does not invalidate the khula. In such a case the only remedy that husband has is sue her
for the recovery of the consideration. But this is not a basis on which he can cancel khul4.
Mubaraa

In mubaraa or mubaraat form of divorce by mutual consent, the outstanding feature is that both the parties, desire
divorce, or as the Muslim authorities say, “aversion is mutual”. Thus, proposal may emanate form either side. The
word, “mubaraa” denotes the act of freeing each other by mutual consent. In the words of Fyzee, “In the case khul,
the wife begs to be released and the husband agrees for a certain consideration, which is usually a part or the
whole of the mahr; while in mubaraa apparently both are happy at the prospect of being rid of each other” 5. Among
the Sunnis when the parties to marriage enter into a mubaraa all mutual rights and obligations come to an end1.
The Shia law is stringent. It requires that both the parties must bona fide find the marital relationship to be irksome.
Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. If the husband were to say to
his wife, “I have discharged you from the obligation of marriage for such a sum, and you are separated from me”,
divorce would result2.

Among the Shias mubaraa is effected by such words, “I have liberated thee for so much and thou art repudiated”.
The Shias insist that the word mubaraa” or “mubaraat” should be followed by the word talak, otherwise no divorce
would result. The Shias also hold that the pronouncement should be in Arabic unless the parties are not able to
pronounce the Arabic words. Just as in khula so in mubaraa intention to dissolve the marriage must be clearly
expressed. It appears that in mubaraa, consideration cannot be whole of dower. It can also not be of property worth
more than dower. It has to be something less than dower. We have seen there is no such inhibition in khula.

Among both the Sunnis and the Shias, the mubaraa is an irrevocable divorce as in the talak-ul-bain. In the words of
Al Karkhi, “when the husband receives a compensation from the wife the divorce is bain and even when it is without
compensation and consequently rajai (reversible at the option of the husband), if during the wife’s idda he were to
accept from her a compensation, the separation would be equally bain3.

The other requirement of the mubaraa are the same as that of the khul. Just as in the khul, so in the mubaraa, the
wife must undergo idda. In both the khul and mubaraa, the divorce is essentially an act of parties, and no
intervention of the court is required. However interestingly, Gauhati High Court in Mohd. Abdul Zadil Ahmed v.
Marina Begum, 4 passed a decree of divorce in terms of compromise between the parties. The peculiar
circumstances of the case were that wife had filed for divorce under section 2(iv), (vii)(a) of the Dissolution of
Muslim Marriage Act, 1939. After that an application by both the parties was filed for divorce by mutual consent.
Moreover, the husband had already remarried and the wife’s marriage was also fixed up. The court observed that
since the grounds of divorce under section 2 are already met divorce may be granted by mutual consent under the
said Act even though there is no express provision for the same in the Act. In our submission, this is beginning of a
welcome trend.

Consent by Fraud
In a case, the appellant alleged that the respondent had obtained her signatures on certain blank forms without
apprising her of their contents and later, on verification, marriage certificate was found to have been issued by
Marriage Officer. The appellant then was a young and inexperienced college student of 19 years belonging to a
respectable family, while respondent was a grown-up man teaching music to appellant. No ceremony or function
 Page 14 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

connected with the marriage was shown to have been held, no photograph of the marriage was produced, none
from the side of the appellant was shown to have participated in the marriage, even though there was no allegation
of their opposition to the marriage and marriage was not consummated and the parties were not living as husband
and wife for 8 months and no reason was given therefor. All witnesses examined by the respondent were
connected with the music school run in his premises and the evidence failed to inspire confidence. It was held by
the Supreme Court that it was a sham marriage, a marriage only in name. District Judge rightly held that appellant’s
consent had been obtained by fraud and hence the marriage was held void. 1

Parties Praying for Dissolution of Marriage by Mutual Consent during

Pendency of Appeal against Divorce
The parties intended to dissolve their marriage by mutual consent under section 13B of the Hindu Marriage Act,
1955. The order passed by the lower court was clear. There was written application on record on the date when
statements of the parties were recorded. It was held by the Court it might be a mere formality but the lower court
had directed the parties to place on record the terms of compromise by way of separate application. It was further
held that on the basis of the statements of the parties lower court could have proceeded further, but no decree for
divorce had been passed under the provisions of section 13B of the Act.

Hence, the Court held that it would be permissible for the appellant wife to withdraw her consent for dissolution of
her marriage by mutual consent. The agreed terms of settlement were for dissolution of marriage by consent. It was
held as a composite package. 2

Personal Appearance of Parties not Mandatory for Divorce by Mutual

Consent
The provisions of section 13B of the Hindu Marriage Act, 1955 as was held could not be read to mean that personal
appearance of the parties is mandatory. The procedural law is subservient to justice. The appearance of parties
would include appearance through duly constituted attorneys. The paramount thing which is required to be
considered by the court is the correctness of contents of petition filed and also to see that consent of either of
parties has not been obtained by way of force, fraud or undue influence. The parties are not required to be called in
court only to see their faces.

Hence, on such observations it was held that in the absence of parties, where the attorney appears, the courts have
to be more cautions and vigilant in recording its satisfaction about the consent in terms of the provisions of the
Hindu Marriage Act, 1955. It depends on the facts of a case, considering who is appearing as attorney.3

Deletion
Though word child is not mentioned but the maintenance of child would be included. She is entitled to litigation
expenses and alimony pendente lite. 1

Divorce by Mutual Consent vis-a-visarticles 141 and 142 of the Constitution

of India
No Court other than Apex Court can waive statutory period for divorce by mutual consent, which Article 142 of the
Constitution can act even beyond ordinary law in order to achieve complete justice in peculiar facts in a given case.
2

Divorce: Consent is not Sine Qua Non

 Page 15 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

It is only the mutual consent of the parties which gives the Court the jurisdiction to pass a decree for divorce under
section 13B of the Hindu Marriage Act, 1955. So in cases under section 13B, mutual consent of the parties is a
jurisdictional fact. The court while passing its decree under section 13B would be slow and circumspect before it
can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual
consent between the parties on some tangible materials which demonstrably disclose such consent. Where one of
the parties to the petition for divorce by mutual consent, remains absent on two or three dates fixed for hearing of
petition and from this mere absence the Court presumes his continued consent and passes decree for divorce by
mutual consent, the decree passed is liable to be set aside. Moreso, when the decree is passed within three weeks
from the expiry of mandatory period of 6 months.3

1 Section 13B
2 Section 28.
3 After Amendment by Act 51 of 2001.
1 Rachna Mittal v. Lt. Kuldeepak Mittal, (1995) Supp 3 SCC 414.
1 Ins. by the Indian Divorce (Amendment) Act, 2001 (51 of 2001), sec. 6.
2 Linish P. Mathew v. Mruthula Mathew AIR 2013 Ker 39 [LNIND 2012 KER 509]: 2012 (3) DMC 385: 2012 (2) Hindu LR
607.
3 AIR 2013 Ker 88 [LNIND 2012 KER 633]: 2013 (2) Hindu LR 98: 2012 (4) Ker LJ 131.
1 Section 2(d).
2 See Pheasant v. Pheasant, (1972) Fam 202, per Urmrod J.
3 Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kant 12 [LNIND 1993 KANT 109]: ILR 1993 Kant 2212 [LNIND 1993
KANT 109]: 1993 (2) Kant LJ 599 : 1994 Marri LJ 126.
4 Leela v. Mahadeo, AIR 1991 Bom 105 [LNIND 1990 BOM 420]: 1990 Mah LJ 1267 [LNIND 1990 BOM 420]: (1990) 1
Bom LR 130.
5 Soma Chowdhury (Sarkar) v. Pradip Kumar Chowdhury, AIR 2009 Cal 63 [LNIND 2008 CAL 1447]: 2009 AIHC 297
(NOC): 2009 (1) Cal HN 282: 2009 (1) ICC 265(DB).
1 AIR 1992 SC 1904 [LNIND 1991 SC 70]: (1991) 1 KLJ 553: (1991) 2 SCC 25 [LNIND 1991 SC 70].
2 AIR 1993 Guj 111 [LNIND 1992 GUJ 205]: 1993 CCC 296: 1994 (1) DMC 304 : 1992 (2) Guj LR 1595.
1 (1972) Fam 247. See also Mouneer v. Mouneer,(1972) I WLR 321.
2 (1949), p. 227.
3 See also Hollens v. Hollens, (1971) 115 SJ 327.
4 Weatherley v. Weatherley, (1947) 1 All ER 563 : (1947) AC 628: 176 LT 434. See also Hopes v. Hopes, (1949), p. 227;
Mouneer v. Mouneer, (1972) 1 WLR 321.
5 (1972) 1 WLR 321.
6 (1973) 1 WLR 730.
1 (1972) Fam 247.
2 Per Turner, J., in Sullivan v. Sullivan,(1958) NZ LR 912.
3 See Inglis, Family Law (2nd Edn.) 150, where New Zealand decisions have been reviewed. See also Tulk v.
Tulk,(1907) VLR 64; Main v. Main, (1949) 78 CLR 636 . For Canadian cases see R.L. Deech, who had reviewed these
cases in (1972) 35 MLR 113.
4 R. v. Creamer, (1919) 1 KB 564 : 88 LJ KB 594: 120 LT 575; Bradshaw v. Bradshaw, (1897), p. 24; Eadie v. IRC,
(1924) 2 KB 198; Nugent-Head v. Jacop, (1984) AC 321 . It may be interesting to note that Court of Appeal in Piper
v. Piper, (1978) 8 Fam Law 243, said that regular “visiting” does not necessarily prevent “living apart”, even if parties
have intercourse.
1 AIR 2005 MP 203 [LNIND 2005 MP 272]: 2006 (1) Marri LJ 189: 2006 (1) All MR 61JS.
2 Sunny v. Sujata, AIR 2012 Del 146 : 2012 (2) Hindu LR 14; Jyoti v. Darshan Nirmal Jain, AIR 2013 Guj 218 : 2012 (2)
Guj LH 206.
 Page 16 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

1 Swati Verma v. Rajan Verma, AIR 2004 SC 161 : (2004) 1 SCC 123: 2003 AIR SCW 5841.
2 Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6 : (1993) 1 Crimes 556 : 1993 All Cri C 144.
3 AIR 1986 P&H 213.
4 Navdeep Kaur v. Maninder Singh Ahluwalia, AIR 2010 P&H 90 : 2010 (2) Hindu LR 123: 2010 (2) Marri LJ 400;
Sreekanth K. v. Nil, AIR 2014 Ker 88 .
1 Miloo Misra @ Mahapatra v. Apun Kumar Mahapatra, AIR 2009 Ori 136 : 2009 AIHC 840 (NOC): 2009 (107) Cut LT
807: 2009 (1) Ori LR 786.
2 Vinay Jude Dias v. Renajeet Kaur, AIR 2009 Del 70 [LNIND 2008 DEL 1898]: 2009 AIHC 522 (NOC): 2008 (2) DMC
589.
3 Girija Kumari v. Vijaynandan, AIR 1995 Ker 159 [LNIND 1995 KER 65]: 1995 (1) DMC 559: 1995 (1) Ker LJ 430 (DB).
4 AIR 1984 Bom 302 [LNIND 1984 BOM 70]: (1984) 86 Bom LR 184 [LNIND 1984 BOM 70]: (1984) 1 Bom CR 586
[LNIND 1984 BOM 70]: (1984) 2 Civ LJ 171.
1 AIR 1986 P&H 201.
2 AIR 1986 Raj 128 : (1986) 1 HLR 620: (1986) 1 DMC 377.
3 This is also the view expressed in K.I. Mohanan v. Jeejabai, AIR 1988 Ker 28 [LNIND 1986 KER 232]: (1988) 2 HLR
467: (1987) 2 DMC 361; N.G. Rama Prasad v. B.C Vanamala, AIR 1988 Kant 162 [LNIND 1987 KANT 285]: ILR 1988
Kant 142: (1988) 1 Kant LJ 30 : (1988) 2 DMC 374; Harcharan Kaur v. Nachhattar Singh, AIR 1988 P&H 27 : (1987) 92
Punj LR 224: 1987 Marri LJ 418: (1987) 2 DMC 305; Girija Kumari v. Vijayanandan, AIR 1995 Ker 159 [LNIND 1995
KER 65]: ILR (1995) 2 Ker 570 : 1995 (1) Ker LJ 430: 1995 (1) Ker LT 521 [LNIND 1995 KER 65].
4 Chander Kanta v. Hans Kumar, AIR 1989 Del 73 [LNIND 1988 DEL 67]: (1988) 1 DMC 509: (1988) 2 Hindu LR 173 :
1988 Marri LJ 306.
5 Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 [LNIND 1991 SC 70]: (1991) 2 SCC 25 [LNIND 1991 SC 70]: (1991)
1 KLJ 553; Girija Kumari v. Vijayanandan, AIR 1995 Ker 159 [LNIND 1995 KER 65]: ILR (1995) 2 Ker 570 : 1995 (1)
Ker LJ 430: 1995 (1) Ker LT 521 [LNIND 1995 KER 65].
6 However see Kusum, Divorce by Mutual Consent, (1987) 29 JILI 40, who takes a contrary view.
7 AIR 1992 SC 1904 [LNIND 1991 SC 70]: (1991) 2 SCC 25 [LNIND 1991 SC 70]: (1991) 1 KLJ 553.
1 JT 1997 (3) SC 483 [LNIND 1997 SC 414]: AIR 1997 SC 1266 [LNIND 1997 SC 414]: (1997) 4 SCC 226 [LNIND 1997
SC 414].
2 (2009) 10 SCC 415 [LNIND 2009 SC 1762]: AIR 2010 SC 229 [LNIND 2009 SC 1762]: 2009 AIR SCW 5899; Rajesh
R. Nair v. Meera Babu, AIR 2014 Ker 44 [LNIND 2013 KER 936]: 2014 (1) ICC 955: 2014 (1) Ker LT 217 [LNIND 2013
KER 936].
3 Suman v. Surendra Kumar, AIR 2003 Raj 155 : 2003 (2) Marri LJ 377: 2003 (1) Raj LR 276 : 2004 (2) Raj LW 1258.
4 AIR 2009 SC 2840 [LNIND 2009 SC 1247]: 2009 AIR SCW 4267: (2009) 7 SCALE 331 [LNIND 2009 SC 1247].
1 Roopa v. Santosh Kumar, AIR 2005 All 172 [LNIND 2006 AP 831]: 2005 AIHC 2667: 2005 All LJ 1577: 2005 (2) Marri
LJ 192.
2 AIR 1986 Raj 128 : (1986) 1 DMC 377: (1986) 1 Hindu LR 620 (Raj).
3 Dhanjit Vadra v. Beena Vadra, AIR 1990 Del 146 [LNIND 1990 DEL 22]: 1990 (18) DRJ 199 [LNIND 1990 DEL 22]:
ILR (1990) 1 Del 386 : 1990 Mat LR 67.
4 1978 HLR 696: 1979 Marri LJ 498.
5 Jagmohan Ahuja v. Sudesh, 1979 HLR 302; Gian Dev v. Pushpa Lata, F.A.O. No. 110M of 1976; Dharamvir v. Promila,
F.A.O. No. 76 of 1978; Surinder Pal Kaur v. Mohinder Pratap Dass, 1982 Marr LJ 187: 1981 Hindu LR 593 (P&H);
Joginder Singh v. Pushpa, AIR 1969 P&H 397 : ILR (1968) 2 P&H 714 (FB).
6 1979 HLR 302.
1 1982 Marr LJ 187: 1981 Hindu LR 593 (P&H).
2 1984 Marr LJ 1.
3 AIR 1992 Ori 165 [LNIND 1991 ORI 183]: 1991 (72) Cut LT 174: 1991 Marri LJ 422: 1991 (2) Ori LR 369 and AIR 1997
Ori 47 : 1997 Marri LJ 284, respectively.
4 Unreported, referred to Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191 : 1986 Marri LJ 560: (1986) 90 Punj LR 608
: ILR (1987) 2 P&H 264.
5 1986 Marr LJ 179.
 Page 17 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

6 1982 Marri LJ 605; M. Sailaja (in re:), AIR 1995 AP 325 [LNIND 1995 AP 154]: 1995 (1) APLJ 425 [LNIND 1995 AP
154]: 1995 (2) Andh LT 166 [LNIND 1995 AP 154]: 1995 (21) Marri LJ 521; Satyabhama Nayak v. Narendra Kumar
Nayak, AIR 1997 Ori 47 : 1997 Marri LJ 284.
1 AIR 1987 P&H 191 : 1986 Marri LJ 560: (1986) 90 Punj LR 608 : ILR (1987) 2 P&H 264.
2 Ranbir Singh Sangha v. Nargis Sangha, 1982 Marri LJ 605.
1 AIR 1981 All 151 : 1981 HLR 706 (All).
2 See also Roopa Reddy v. Prabhakar Reddy, AIR 1994 Kant 12 [LNIND 1993 KANT 109]: ILR 1993 Kant 2212 [LNIND
1993 KANT 109]: 1993 (2) Kant LJ 599 : 1994 Marri LJ 126.
3 AIR 1999 AP 91 [LNIND 1998 AP 611]: 1998 (6) Andh LD 117: 1998 (5) Andh LT 618 [LNIND 1998 AP 611]: 1999 (2)
Marri LJ 13; Santosh Lalmani Tiwari v. Aaradhana Devi Santosh Tiwari, AIR 2013 Bom 12 [LNIND 2012 BOM 987]:
2013 (2) DMC 29: 2013 (2) Hindu LR 376.
4 Dr. Subhrajyoti Das v. Uttama Das, AIR 2002 Gau 117 [LNIND 2002 GAU 18]; Malwinder Kaur v. Devinder Pal Singh,
AIR 2003 P&H 179 : 2004 (1) Marri LJ 210: 2003 Mat LR 544: 2003 (2) Punj LR 325; Chander Kanta v. Mohinder
Partap Dogra, AIR 2003 P&H 255 : 2004 (2) Marri LJ 698: 2003 Mat LR 724: 2003 (3) Punj LR 230; Prabhat Shekhar v.
Poonam Kumari, AIR 2004 Pat 12 : 2003 (3) BLJR 2363: 2004 (1) Marri LJ 530: 2004 (2) Pat LJR 128; Dineshkumar
Shukla v. Neeta, AIR 2005 MP 106 [LNIND 2005 MP 90]: 2005 (2) DMC 51: 2005 (1) MPLJ 362 : 2005 (2) Marri LJ 61;
Anita Sharma v. Nil, AIR 2005 Del 365 [LNIND 2005 DEL 294]: 2005 (1) DMC 857: 2005 (2) Marri LJ 242: 2005 Mat
LR 768.
5 Charanjit Singh Mann v. Neelam Mann, AIR 2006 P&H 201 : ILR (2006) 2 P&H 1: 2006 (1) Marri LJ 532: 2006 (2) Punj
LR 851.
6 Subhasree Dutta v. Nil, AIR 2008 Cal 144 [LNIND 2008 CAL 316]: 2008 (2) Cal HN 303: 2008 (2) Cal LJ 7 [LNIND
2008 CAL 316]: 2008 (2) Cal LT 43; K. Thiruvengadam v. Nil, AIR 2008 Mad 76 [LNIND 2007 MAD 2932]: 2008 AIHC
340 (NOC): 2008 (3) AIR Bom R 394(NOC): 2008 (1) Mad LJ 751.
7 Principal Judge, Family Court, Nagpur v. Nil, AIR 2009 Bom 12 [LNIND 2008 BOM 597]: 2008 (6) AIR Bom R 117:
2008 (4) Bom CR 539 [LNIND 2008 BOM 597]: 2008 (5) Mah LJ 222 [LNIND 2008 BOM 597]; Girdhari Maheshwari v.
Nil, AIR 2009 Raj 38 [LNIND 2008 RAJ 279]: 2009 AIHC 329 (NOC): 2009 (1) Raj LW 615 : 2009 (1) WLC 668.
8 Poonam Sharma v. Nil, AIR 2009 MP 249 .
9 Mamta Rani v. Bhupesh Verma, AIR 2009 P&H 186 ; Rekha Devi v. Abhishek Misra, AIR 2012 All 124 [LNIND 2012
ALL 14]: AIR 2012 All 124 [LNIND 2012 ALL 14]: 2012 (3) DMC 573; Badri v. Harbai, AIR 2014 Raj 108 [LNINDU
2014 RAJ 13218]: 2014 (3) All MR 78JS.
1 Manoj Kedia v. Anupama Kedia, AIR 2010 Chhat 92 : 2010 (3) MPHT 54: 2011 (1) DMC 465.
2 AIR 2010 SC 1384 [LNINDORD 2010 SC 101]: 2010 AIR SCW 2084: (2010) 4 SCC 460 [LNINDORD 2010 SC 101].
3 AIR 2012 SC 2890 [LNIND 2012 SC 494]: 2012 AIR SCW 4739: (2012) 8 SCC 580 [LNIND 2012 SC 494].
4 Vivek Kumar Rajendra Prashad v. State of Uttar Pradesh, AIR 2013 All 58 [LNIND 2012 ALL 1270]: 2012 (6) All WC
5591: 2013 (2) DMC 13 CN; also see In re: Mittal Ramesh Panchal, AIR 2014 Bom 80 [LNINDU 2014 BOM 471]: 2014
(1) DMC 20: 2014 (3) Mah LJ 755
5 Sushama Pramod Taksande v. Pramod Ramaji Taksande, AIR 2009 Bom 111 [LNIND 2009 NGP 98]: 2009 (3) AIR
Bom R 125: 2009 (3) Bom CR 753 [LNIND 2009 NGP 98]: 2009 (4) Mah LJ 81 [LNIND 2009 NGP 98].
6 Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191 : 1986 Marri LJ 560: (1986) 90 Punj LR 608 : ILR (1987) 2 P&H
264.
7 R.U. Rinki Renu v. Pradeep Kumar, AIR 2014 All 30 [LNIND 2013 ALL 100]: 2014 (2) ALJ 568 [LNIND 2013 ALL 100].
1 Geeta Satish Gokarna v. Satish Shankarrao Gokarna, AIR 2004 Bom 345 [LNIND 2004 BOM 373]: 2004 (3) Bom LR
767 [LNIND 2004 BOM 373]: 2004 (3) Mah LJ 159 [LNIND 2004 BOM 373]: 2004 (2) Marri LJ 678.
2 Deepa Devi v. Dhiraj Kumar Singh, AIR 2006 Jhar 29 : 2006 AIHC 820: 2006 (1) AIR Jhar R 64: 2005 (4) JCR JHA
191.
3 AIR 1969 P&H 397 : ILR (1968) 2 P&H 714 (FB).
4 AIR 1984 SC 1562 [LNIND 1984 SC 200]: (1984) 4 SCC 90 [LNIND 1984 SC 200]: 1984 Marri LJ 499.
5 Reynold Rajmani v. Union of India, AIR 1982 SC 1261 [LNIND 1982 SC 112]: (1982) 2 SCC 474 [LNIND 1982 SC
112]: 1982 Marri LJ 498.
6 AIR 1989 Cal 115 [LNIND 1988 CAL 176]: (1988) 2 CHN 449: 1990 (1) DMC 145.
7 AIR 1999 AP 186 [LNIND 1999 AP 50]: 1999 (3) Andh LD 542: 1999 (2) Andh LT 85 : 1999 (2) Marri LJ 90(DB).
 Page 18 of 18
Chapter VIII DIVORCE BY MUTUAL CONSENT

8 Preeti Singh v. Sandeep Singh, AIR 1995 SC 1851 [LNIND 1995 SC 575]: (1995) 1 SCC 391 [LNIND 1995 SC 11]:
(1995) 1 SCR 27 [LNIND 1995 SC 11]: 1995 AIR SCW 2883; Sreelatha v. Deepthy Kumar, AIR 1998 Ker 97 [LNIND
1997 KER 381]: ILR (1998) 2 Ker 109 : 1998 (1) Ker LJ 226: 1998 (1) Ker LT 195.
1 Sushama Pramod Taksande v. Pramod Ramaji Taksande, AIR 2009 Bom 111 [LNIND 2009 NGP 98]: 2009 (3) AIR
Bom R 125: 2009 (3) Bom CR 753 [LNIND 2009 NGP 98]: 2009 (4) Mah LJ 81 [LNIND 2009 NGP 98].
2 Bhukhari, 68, II.
3 Hedaya, 112; Baillie, Digest of Moohummudan Law, 31.
4 Fatwa-i-Alamgiri, I, 669.
5 (1861) 8 MIA 379.
1 Fatwa-i-Alamgiri, 1, 685.
2 Baillie, Digest of Moohummudan Law, II, 319.
1 (1861) 8 MIA 379.
2 Amir Ali, Mohammedan Law, II, 512.
3 Fatwa-i-Alamgiri, I, 675; see Ameer Ali for details of difference between the Shia and Sunni doctrines, 513-14.
1 Baillie, Digest of Moohummudan Law, I, 311.
2 Tyabji, Muslim Law, 117.
3 Muna, 303; Faizee, Muslim Law, 155.
4 See Saddan v. Faiz Baksh, (1920) 1 Lah 402.
5 Faizee, Muslim Law, 156.
1 The Hedaya 139; Fatwa-i-Alamgiri, I, 669.
2 Amir Ali, Mohammedan Law, II, 517.
3 Quoted by Amir Ali, Mohammedan Law, II, 517.
4 AIR 1999 Gau 28 [LNIND 1998 GAU 151]: 2000 (1) Civ LJ 803: 1999 (2) Gau LR 369 : 1999 (2) Marri LJ 50.
1 Jolly Das alias Moulick v. Tapan Ranjan Das, (1994) 4 SCC 363 [LNIND 1994 SC 470]: 1994 AIR SCW 2836.
2 Kummo Devi v. Jai Pal, AIR 2010 HP 39 [LNIND 2010 HP 865]: 2010 (2) Marri LJ 420: 2010 (3) CCC 552.
3 Navdeep Kaur v. Maninder Singh Ahluwalia, AIR 2010 P&H 90 : 2010 (2) Hindu LR 123: 2010 (2) Marri LJ 400.
1 K. Sunil Babu v. Mariya V. Joy, AIR 2013 Ker 176 : 2013 (3) DMC 174: 2013 (3) Ker LJ 14.
2 M. Krishna Preetha v. Dr. Jayan Moorkkanatt, AIR 2010 Ker 157 [LNIND 2010 KER 132]: 2010 (2) Civ LJ 623: 2010
(2) Ker LT 459 [LNIND 2010 KER 132].
3 Smruti Pahariya v. Sanjay Pahariya, AIR 2009 SC 2840 [LNIND 2009 SC 1247]: 2009 AIR SCW 4267: (2009) 7
SCALE 331 [LNIND 2009 SC 1247].

End of Document
 Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

In Chapter I, Part III of this work, various forms in which irretrievable breakdown of marriage has been recognized
as basis of divorce have been discussed.

Under the Indian matrimonial laws, a form of irretrievable breakdown of marriage has been recognized under the
Hindu Marriage Act, 19551, Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 19542 while
another form of irretrievable breakdown of marriage as a basis of divorce is recognized under Muslim law. No other
Indian personal law recognizes irretrievable breakdown of marriage as basis of divorce in any form.

Hindu Marriage Act, 1955

Section 13(1A) of the Act which contains the provision for irretrievable breakdown of marriage runs:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition
for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which
they were parties.

Special Marriage Act, 1954

Section 27(2) of the Act which contains the provision runs:

Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized
before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to
the district court on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separation in a proceedings to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which
they were parties.
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Parsi Marriage and Divorce Act, 1936

By the amending Act of 1988, a new provision has been enacted in the Parsi Marriage and Divorce Act. Section
32A runs:

(1) Either party to a marriage, whether solemnized before or after the commencement of the Parsi Marriage and Divorce
(Amendment) Act, 1988, may sue for divorce also on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separation in proceeding to which they were
parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which
they were parties.

The provision is identical with section 13(1A) of the Hindu Marriage Act, 1955.

However sub-section (2) to the section modifies the provision. The sub-section runs:

No decree for divorce shall be granted under sub-section (1) if the plaintiff has failed or neglected to comply with an order
for maintenance passed against him under section 40 of this Act or section 488 of the Code of Criminal Procedure, 1898 or
section 125 of the Code of Criminal Procedure, 1973.

Section 10(1)(viii) has failed to comply with decree for restitution of conjugal rights for a period of 2 years or
upwards after the passing of the decree against the respondent.

Ground of Irretrievable Breakdown of Marriage: Power of Court

On bare reading of section 13 of the Hindu Marriage Act, it is clear that no such ground of irretrievable breakdown
of marriage is provided by the Legislature for granting a decree of divorce. The Court cannot add such a ground to
section 13 of the Act as that would be amending the Act which is a function of the Legislature.1

Non-compliance with a decree of restitution and non-resumption of

cohabitation after a decree for judicial separation for a period of one year
Originally, the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 contained two fault grounds under
which divorce could be obtained by a petitioner in whose favour a decree of restitution of conjugal rights had been
passed and the respondent had not complied with it for a period of two or more years, and a petition at whose
instance a decree of judicial separation has been passed and no cohabitation had been resumed for a period of two
or more years. Obviously these were contemplated as fault ground. In 1964, on a Private Member’s Bill, these
grounds were converted into breakdown of marriage grounds, by laying down that in each of these case either party
could sue for divorce1. The conversion of these grounds into irretrievable breakdown of marriage grounds under the
Special Marriage Act, 1954 took place in 19702.

The period of two years reduced to one year by the Marriage Laws (Amendment) Act, 1976.

Evidently by laying down that either party could sue for divorce—and not merely the so-called innocent party—and
divorce could not be denied to the other party—the so-called guilty party—the amendment sought to give up the
guilt theory and sought to introduce the irretrievable breakdown principle of divorce. Non-compliance with a decree
for restitution of conjugal rights and non-resumption of cohabitation after a decree of judicial separation for a period
one year is treated as a conclusive evidence of breakdown of marriage. As per the Statement of Objects and
Reasons, the right to seek divorce on any one of these grounds should be available to both the husband and the
 Page 3 of 12
Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

wife as in such a case, it is clear that the marriage has proved a complete failure. There is, therefore, no justification
for making the right available only to the party who has obtained the decree in each case. In such a case,
Parliament felt that no useful purpose will be served by maintaining a union which has ceased to exist but in name
and further no useful purpose will be served in determining at whose fault marriage has broken down—may be one
of the parties was at fault may be both were at fault, may be no one was at fault, may be it has broken down by
incompatibility, or may be it has broken down by the irony of circumstances. Interestingly in Sneh Prabha v.
Ravinder Kumar3, the Supreme Court granted divorce after reaching to the conclusion that marriage had
irretrievably broken down and appeal against an order confirming decree of Restitution and after making much
effort at reconciliation.

However under both the statutes, irretrievable breakdown of marriage is not per se a ground of ‘divorce’4. It is only
one version of irretrievable breakdown which constitutes a ground, i.e., non-compliance with decree of Restitution
or non-resumption after a decree of judicial separation for a period of one year.

While introducing these breakdown grounds, it seems that Parliament overlooked the provision of section 23(1)(a)
of the Hindu Marriage Act, 1955, which lays down that reliefs will not be granted to a petitioner who is shown to be
taking advantage of his or her own wrong or disability. With the result, the “taking advantage” of his own-wrong
principle has been applied by the court to the breakdown grounds also. When the Hindu Marriage Act, 1955 and
thespecial Marriage Act, 1954 were amended by the Marriage Laws (Amendment) Act, 1976, no amendment was
made in this regard, though its application was excluded when marriage is sought to be annulled on the ground of
insanity.

In cases coming before1 or after 19762, the High Courts have taken the view that the post-decree conduct of the
petitioner is material and in case it would be found that in seeking divorce on the ground of non-resumption of
cohabitation after a decree of judicial separation or non-compliance with the decree of restitution of conjugal rights,
the petitioner is taking advantage of his own wrong, he would not be allowed relief. Thus, where the husband
obtained a decree of restitution but did not allow the wife to comply with it and when later on he sued for divorce on
the ground of non-compliance of the decree for the statutory period, the courts refused to grant him divorce, as they
felt that it would amount to giving him advantage of his wrong—his not allowing the wife to comply with the decree
was such a wrong. In some more cases also this view has been expressed3.

In Sumitra Manna v. Gobinda Chandra Manna,4 the wife had obtained a decree of judicial separation. The parties
continued to live separately and after the completion of statutory period as laid down in section 13(1A)(i), the
husband did not make any effort at resuming cohabitation after the decree of judicial separation and had also failed
to pay her the alimony granted by the Court, his petition for divorce should not be granted as it would amount to his
taking advantage of his own wrong. According to the wife, non-payment of the amount of alimony and non-effort at
resuming cohabitation were wrong on the part of the husband within the meaning of section 23(1)(a). After a review
of authorities, the Calcutta High Court, granting the husband’s petition, observed that both these facts did not
amount to his taking advantage of his own wrong.

It has been submitted earlier also that if that technical view of section 23(1)(a) is taken then there will be hardly a
petition under section 13(1A), where divorce could be granted. Thus, a spouse who had obtained a decree of
restitution of conjugal right fails to impress the other spouse to join him, or a spouse against whom a decree had
been obtained fails or refuses to comply with it, he or she will be in the wrong and the petition for divorce under
section 13(1A) will fail. On the other hand, if he successfully impresses the other spouse to join him then there is no
cause of action left to file a petition for divorce. It appears that when the Amendment of 1964 was debated in
Parliament, no one gave any thought to the possibility of the applicability of section 23 to a petition under section
13(1A). Since the divorce structure in the original Hindu Marriage Act, 1955 was based on fault theory—it is in that
structure only that section 23 has any relevance and when a new structure of irretrievable breakdown of marriage
was laid down, the projecting arm of section 23 was not cut down but rather allowed to cast its shadow, and the
courts applied section 23 to the irretrievably breakdown, of marriage basis of divorce also. They overlooked the
spirit and the law behind section 13(1A), and, adhered as they do to mechanical jurisprudence, applied section 23.
In the result, section 13(1A) was almost rendered nugatory.

On the ground of irretrievable breakdown of marriage, the court must not lightly dissolve a marriage. It is only in
extreme circumstances that the court may use this ground for dissolving a marriage. In a case, the respondent, at
all stages and even before the court, was ready to go back to the appellant. It was appellant who refused to take the
respondent back. The appellant had made baseless allegations against the respondent. He even went to the extent
of filing a complaint of bigamy, under section 494, IPC against the respondent. That complaint came to be
dismissed. The evidence showed that the respondent was forced to leave the matrimonial home. It was the
 Page 4 of 12
Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

appellant who had been at fault. It can hardly lie in the mouth of a party who has been at fault and who has not
allowed the marriage to work to claim that marriage should be dissolved on the ground of irretrievable breakdown.1

In another case2 it was held by the court that matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and affection with sufficient place for reasonable
adjustments with the spouse. The relationship has to conform to the social norm as well. The matrimonial conduct
has now come to be governed by statute framed, keeping in view such norms and changing social order. It is
sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial
norms for making of a well knit healthy and not a disturbed and porous society. Institution of marriage occupies an
important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any
submission of “irretrievable broken marriage” as a straight jacket formula for grant of relief of divorce. This aspect
has to be considered in the background of the other facts and circumstances of the case.

Irretrievable Breakdown of Marriage

Irretrievable breakdown of marriage is not a ground of divorce under section 13 of the Act and Supreme Court
cannot add such a ground to section 13 as that would be amending the Act, which is the function of the Legislature
and not that of the courts. Hence, divorce on this ground cannot be granted. However, had both the parties been
willing, divorce by mutual consent could have been granted, as contemplated by section 13B, but in the present
case, respondent was not willing to agree to divorce.3

Happily, a trend is discernible wherein courts are trying to make provision work. In Madhukar Bhaskar Sheorey v.
Saral Madhukar Sheorey1, the Bombay High Court and in Geeta Lakshmi v. G.V.R Sarveswara Rao2, the Andhra
Pradesh High Court observed that wrong or disability of the petitioner should be subsequent to the passing of the
decree and mere non-compliance with the decree of restitution is not a wrong. In Bai Mani v. Jayantilal3, the Gujarat
High Court held that the continuance of the same wrong, such as adultery on the basis of which the decree for
judicial separation was passed, was not a wrong inhibiting the relief under section 13(1A). Nor was it essential that
the petitioner should have made any effort for resumption of cohabitation after a decree for judicial separation was
passed4. A mere disinclination to accept an offer of reconciliation or mere non-compliance or reluctance to comply
with a decree of restitution, does not amount to wrong under section 23(1A)5.

In Dharmendra Kumar v. Usha Kumar6, the wife applied for divorce under section 13(1A)(ii) after a little over two
years of passing of the decree of restitution of conjugal rights in her favour, on the averment that the decree had
remained unfulfilled. The husband in his defence alleged that the wife refused to receive or reply to the letters
written to her and also did not respond to his other attempts to make her agree to live with him. The Supreme Court
observed that these allegations even if true, did not amount to misconduct, grave enough, to disentitle the wife to
the decree of divorce. A.C. Gupta, J., observed:

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.

Parties to the marriage were living separately for more than 14 years and feelings and emotions for each other had
already vanished. So, under this circumstances, compelling parties to resume under matrimonial ties and refusing
divorce to husband would not serve any purpose, nor have any benefit to either parties. Hence, Court granted
divorce to the husband.1

Divorce Decree
A decree of divorce passed during the pendency of application of husband for restitution of conjugal rights is not
invalid, in view of the facts and circumstances, where all efforts for reconciliation failed because of neglect and cruel
treatment of husband.2

In N. Varalakshmi v. N.V. Hanumantha Rao3, the husband had obtained a decree of judicial separation. The wife
 Page 5 of 12
Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

made several attempts to resume cohabitation but husband did not allow her to do so. After the completion of
statutory period, the husband petitioned for divorce on the basis of non-resumption of cohabitation after the decree
of judicial separation. The wife averred that cohabitation could not be resumed because the husband did not allow
her to do so, and now granting him the decree of divorce would amount to giving him advantage of his own wrong.
The court rejected the plea and passed a decree of divorce. The court said that the resumption of cohabitation, had
to be voluntary and mutual. Similarly, in Pranjiwan v. Bai Dhirajban4, the husband had obtained a decree of
restitution of conjugal rights but wife refused to comply with it. After the completion of statutory period, the husband
sued for divorce and wife averred that her husband did not invite her to live with him. Again, the court granted
divorce. In Anil Jayantilal Vyas v. Sudhaben5, the Gujarat High Court held that a defaulting spouse in a restitution
case could be granted divorce, since in such case marriage had broken down irretrievably. The following
observation in M. Someswara v. Leelavathi6 is instructive:

The policy of law seems to be that if the period reflection provided by the decree of judicial separation namely, one year,
has not produced any reconciliation between the parties, it is fair to conclude that the marriage has broken down
irretrievably and it is not in public interest or conducive to the happiness of the spouses themselves, to keep them tied by
the technicality of law when their minds are apart and refuse to unite. Is the purpose of the Hindu Marriage Act to inflict
suffering on unwilling spouses or to advance hypocritical life-style by closing doors to respectability? The trend of the policy
of the law is abundantly clear when by the introduction of section 13B the legislature has given recognition even to a
consensual divorce to end an unhappy marriage. Law has an object and any interpretation which frustrates it has to be
avoided.

But some of our High Courts continue to be devoted for applying the provision of section 23(1)(a) of the Act to the
breakdown grounds. In O.P. Mehta v. Saroj Mehta,7 the husband had obtained a decree of restitution of conjugal
rights under section 9. After about four and a half months of this decree he sued the wife for divorce on the ground
of her adultery. Then after one year of the decree of restitution he filed a petition for divorce under section 13(1A)(ii)
on the averment that the decree of restitution had remained uncomplied with for a period of one year. The Delhi
High Court observed that no wife could have gone to live with the husband when a divorce petition on the ground of
her adultery was pending in the court, and since this constituted his wrong, the husband could not derive benefit of
his wrong. The court distinguished its own Full Bench judgment in Ramkali v. Gopal,1 and a Single Bench judgment
in Gajna Devi v. Purshotam Giri,2 [which took the view that section 23(1)(a) was not applicable to petition under
section 13(1A) and relied on a Full Bench decision of the Punjab and Haryana High Court3] Goswami, J., of the
Delhi High Court observed:

If after the passing of the previous decree and other facts and circumstances occur, which in view of sub-section (1) of
section 23 of the Act disentitle the spouse from obtaining a relief of dissolution of marriage by a decree of divorce under
section 13(1A)... the same can be legitimately taken into consideration and must be given due effect4.

The same opinion has been expressed by a Division Bench of the Andhra Pradesh High Court in Pavuluri Murahari
Rao v. Povuluri Vasantha Manohari5. The proposition propounded by the court is rather broad: where the petitioner
alleged that attempt at restitution of conjugal rights was only a make-believe affair evolved as a stepping stone to
get a decree for divorce, the petitioner throughout was promoted by the consideration of getting money from the
parents of the respondent and there was no trace of genuineness in his conduct as he was trying to create and
make out a ground for divorce with ulterior motive, he was not entitled to a decree of divorce under section
13(1A)(ii), even if the decree of restitution remained uncomplied with for a period of one year or more. Where
husband was living in adultery and did not comply with decree of judicial separation, he was held not entitled to the
decree of divorce due to the application of section 23(1)(a).6

The Supreme Court has also held in a very brief judgment in T. Srinivasan v. T. Varalakshmi7, that section 23(1)(a)
shall be applicable on section 13(1A) and on the misconduct of husband in not allowing his wife to resume
cohabitation after decree of restitution shall disentitle him to relief under section 13(1A). It is submitted here that
while rendering this judgment the Court did not even think it necessary to mention its earlier decision in
Dharmendra Kumar which held otherwise. In our submission this judgment is retrogressive and against the spirit of
section 13(1A).

It has again been held by the Supreme Court in Hirachand Srinivas Managaonkar v. Sunanda1, that section 23
would apply to section 13(1A) and Court is not bound to grant divorce on mere proof of non-cohabitation for the
stipulated period and that further section 10(2) does not vest right to get decree for divorce in the spouse. In the
instant case the husband was having an adulterous life and continued to do so after passing the decree of judicial
separation. On the expiry of one year he petitioned for grant of divorce under section 13(1A). He had also not paid
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

any maintenance to the wife. In view of the above two facts court held him to be in wrong and refused his petition.
The following observations of the court may be noted:

It has to be kept in mind that human relationship between spouses is a matter concerning human life. Human life does not
run on dotted lines or charted course laid down by the statute. It has also to be kept in mind that before granting the prayer
of 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...
(Emphasis authors’).

In view of the above observations it is submitted that the learned judges, though appreciate the fine nuances of
human life, but fail to see the whole issue in a larger perspective. It is agreed that a settlement as to maintenance
has to be made before the grant of divorce. But an important fact that has been overlooked by the learned judges is
that the petitioner was and is living in adultery which means that he has no intention of cohabiting with his wife. This
fact amply shows that the marriage is in fact irretrievably broken down and by refusing the decree what the court is
retaining is an empty shell. What purpose this empty shell is going to serve to the society is difficult to fathom.

Though the Supreme Court in Anjula Verma v. Sudhir Verma2, held that a husband would not be disentitled to seek
divorce under this section where no wrong could be established on his part in non-compliance of decree of
restitution of conjugal rights.

In Veena Handa v. Avinash Handa,3 the husband’s petition under section 13(1A) (ii) failed on a technical ground.
After the decree for restitution, the wife stayed with the husband on his invitation for a night (though he turned her
out the next morning); the Court held that this amounted to compliance with the decree and since decree did not
remain uncomplied, there was no cause of action for the petition.

In Santosh Kumari v. Kewal Krishna Sabharwal4, the parties lived together as husband and wife for a period of two
years, but on account of expulsive conduct of her husband she was forced to leave the matrimonial home. The
husband moved a petition for divorce on the grounds of adultery, cruelty and desertion. The wife moved a petition
for restitution of conjugal rights on the ground that she was turned out of the matrimonial home and the husband did
not care to have her back. Both the petitions were consolidated. Wife was allowed ad interim maintenance under
section 24. As the husband did not comply with this order his defence was struck-off. The wife’s petition was
allowed and a decree for restitution was passed. The wife had also filed a petition for maintenance under section
125 of the Code of Criminal Procedure, 1973 and a consent order was passed wherein the husband undertook to
pay Rs. 300 per month as maintenance. The husband moved the present petition for divorce under section
13(1A)(ii) on the averment that since more than one year had elapsed since the passing of the decree of restitution
and the same had remained uncomplied with, he was entitled to a decree of divorce. The petition was compromised
and the husband agreed to take back the wife. She joined the matrimonial home and stayed there for about 20 days
when again she was ill-treated and turned out. The trial court did not believe wife’s evidence of her joining the
matrimonial home and passed a decree of divorce in favour of the husband on the basis that decree of restitution
remained uncomplied with for a period of one year. This finding was reversed by the High Court.

It appears that Khanna, J., of the Delhi High Court is not happy with the introduction of irretrievable breakdown of
marriage as a ground of divorce. The judge, it is submitted erroneously thought that this amendment was
introduced by the Hindu Marriage Law (Amendment) Act, 1976.

He makes a distinction between educated and affluent people on the one side and poor and illiterate on the other.
According to him, in cases where the couples are educated, financially and socially independent or are well aware
of the consequences of break-up of marriages and are determined to proceed in that direction, it can be said that to
hold them tied by matrimonial bond would be wholly unjustified. When marital relationship breaks down completely
between the spouses, the uneducated, illiterate, socially and economically weak wife as well as the educated
affluent and forward wife, would feel much more hurt in matrimony than in divorce. When a marriage breaks down
completely the only solution to the spouses is to get out of it. There cannot be greater hardship than to live in a
broken home.

Another important fact that was established in this case was that the wife had lived in the matrimonial home for
some days though no sexual intercourse was resumed during this period. It was argued by the wife’s counsel that
this caused a break of the statutory period of one year which was a mandatory requirement of section 13(1A)(ii).
Agreeing with this contention the court rightly held that it amounted to a break in the period and thus the husband
was not entitled to the decree of divorce on that count. It is submitted that if parties had resumed cohabitation, it is
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

not essential that they must also resume marital intercourse. The intention to live a new as husband and wife is
enough1.

In his article, “Divorce under the Hindu Marriage Act—A conflict of Principles”1, V.S. Deshpande(former Chief
Justice of Delhi High Court) has attempted to effect reconciliation between the two. He premises that post-decree
conduct of the parties is material and therefore Parliament has deliberately retained the application of the provision
of section 23(1)(a) of the Hindu Marriage Act, 1955 in respect of section 13(1A). He says that after the amendment,
the difference between the parties in whose favour the decrees were passed and against whom the decrees were
passed has been eliminated. The mere fact that after the passing of these decrees, cohabitation has not been
resumed or the restitution of conjugal rights has not come about is regarded as sufficient to give either of the parties
a right to apply for divorce. This is the new way of looking at the phenomenon of the judicial separation between the
parties and the non-restitution of conjugal rights between them. This phenomenon by itself is regarded as a
breakdown of the marriage necessitating the grant of divorce irrespective of the question by whose fault the
breakdown of the marriage has resulted. According to him after the amendment of 1964, the question whether
marriage has or has not broken down has to be looked at in two ways:
(a) on the basis of fault grounds contained in section 13(1); once it was shown that the respondent has
committed a matrimonial offence and there is no possibility of reconciliation the decree of divorce may be
pronounced, and
(b) when it is shown that a decree of restitution has not been complied with or cohabitation has not been
resumed after a decree of judicial separation for one year or more, a decree of divorce may be passed.

The learned author says that conduct of the parties in both cases is material. Sub-section (1A) does not differ from
sub-section (1) of section 13 in one fundamental respect. Both these provisions merely enable applications for
divorce to be made. They do not say that courts shall grant divorce on such applications. They only enable the
applications to be made on the grounds stated in the provisions. Neither sub-section (1), nor sub-section (1A) of
section 13 is, therefore, a complete code in itself for the grant of divorce. The other provisions of the Act have to be
read along with them. The provision with which we are concerned is section 23. There can be no controversy that
section 23 had to be read with section 13 as the latter stood prior to the amendment of 1964. For, the Act has to be
read as a whole. Can it be said that sub-section (1A) of section 13 overrides section 23? It is true that sub-section
(1A) of section 13 was enacted in 1964 while section 23 was enacted in 1955. If, therefore, sub-section (1A) of
section 13 is inconsistent with section 23, one argument can be that the subsequently enacted part of the Act would
prevail against the previously enacted part of it. But this rule is subject to context to the contrary. While section 13 is
concerned with enumerating the grounds for divorce, section 23 is of a general nature. It opens with the words “in
any proceeding under this Act”. It, therefore applies to every proceeding under the Act. It could not, therefore, be
overridden by sub-section (1A) of section 13 which applies to the divorce proceeding. Section 23(1) (a) further says
that “if the court is satisfied that any of the grounds for granting relief exists.” This means that section 23(1)(a)
applies only after the court is satisfied that the petitioner is entitled to relief on one of the grounds enumerated in
section 13. This applies not only to the grounds enumerated in sub-section (1) but also to the ground enumerated in
sub-section (1A) of section 13. Section 23 has therefore to be read with sub-section (1A) of section 13.

According to Deshpande, only such conduct of the decree-holder or the judgment-debtor would become irrelevant
in considering his application under sub-section (1A) of section 13 as had been already considered in the making of
the decree against him. But other conduct which had not been so considered in the proceedings leading to the
decree would not be precluded from consideration. For, the argument that the judgment-debtor and the decree-
holder are placed on the same footing under sub-section (1A) would not be available to rule out the consideration of
such conduct as it was never the subject-matter of consideration in the proceeding leaving to the decree.

For the same reason, the conduct of the decree-holder after the passing of the decree would also have to be taken
into consideration. For, the equation of the judgment-debtor and the decree-holder for making the application has
no bearing on the conduct of either party whether the judgement-debtor or the decree-holder after the decree is
passed. The learned Chief Justice (author) made the following suggestions for reconciling the two provisions:
(1) Under section 23 conduct of both the husband and the wife has to be considered by the court as would
have a bearing on the exercise of the discretion by the court in granting the relief of divorce. For, the nature
of the jurisdiction of a divorce court, is not merely to decide a dispute between the parties but also to
investigate not only the “facts in court” but also the “facts of life” between the parties. This is why under
sub-section (1) of section 23 the court has to satisfy that the petitioner is not in any way taking advantage
of his or her own wrong or disability for the purpose of such relief and the petitioner is not guilty of various
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

other things which may also operate as a bar to the relief. This is also the reason why under sub-section
(2) of section 23, the court has to try to bring about reconciliation between the parties.
(2) The specific and limited effect of sub-section (1A) of section 13 is to preclude the court from taking into
account that portion of the conduct of the parties which has already been considered by the court in the
proceedings leading to the decrees for judicial separation and restitution of conjugal rights. The intention of
the Legislature in giving both the right to make an application for divorce was to eliminate the consideration
of such conduct.
(3) All other conduct of the parties not considered in the proceedings leading to the decrees and in particular
the conduct of the parties subsequent to the decrees has very much to be considered by the court under
section 23 of the Act. Instance of such subsequent conduct not considered in the proceedings leading to
the decrees would be:
(i) failure of the husband to provide for the maintenance to the wife; and
(ii) when one of the spouses attempted to come and live with the other spouse and the latter spouse
defeated such an attempt after the passing of the decree, the court would have to consider under
section 23 whether in such circumstances it could be said that there has been no resumption of
cohabitation or no restitution of conjugal rights as between the parties. The court may come to the
conclusion that the spouse who prevented the other spouse from co-habitation and restitution of
conjugal rights was taking advantage of his or her own wrong in pleading that there has been no
resumption of co-habitation or no restitution of conjugal rights for over two years. He or she could not
be allowed to take such a stand in view of his or her conduct.

Date from which the period one year commences.—If petition under section 13 (1A) can be filed one year after
passing of a decree in a restitution of petition or judicial separation petition. The question is from which date this
period commences: From the date of the decree of the trial court or appellate Court, in case there is an appeal?
The period of one year will commence from the date of decree of the trial court and not from the date of the decree
of the appellate court1. Further the expression passing of decree was held to mean passing of judgment and not
date of drawing up of decree.2

When motion is moved for dissolving the marriage after six months, both parties should join. A decree passed in the
absence of the other party is nullity3.

In a landmark judgment Naveen Kohli v. Neelu Kohli4, the Supreme Court has exhorted the Union of India to
seriously consider and amend the existing Act to add the ground of irretrievable breakdown of marriage. The criteria
or touchstone that a marriage has broken down irretrievably should be the long period of separation. The Supreme
Court has admitted that fault grounds are proving to be inadequate to deal with this problem. To quote the apex
Court—

We have been principally impressed by consideration that once the marriage has broken down beyond repair, it would be
unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the
parties. Where there is a long period of continuous separation, it may fairly be surmised that matrimonial bond is beyond
repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie the law in such cases
does not serve the sanctity of marriage. On the contrary it shows scant regard for feelings and emotions of the parties
(emphasis authors’).

It is submitted here that the present authors had also propounded the same thesis based on similar reasoning5. In
this light reading section 23 along with section 13(1A) also becomes anachronistic. The Supreme Court has further
emphasized this aspect in Manjula v. K.R. Mahesh1, where all efforts at reconciliation failed, both parties claimed
that marriage has broken down irretrievably and there would be no point in making an effort to bring about a
conciliation between the parties. Divorce was granted to the parties by making sufficient arrangement for the
welfare of the daughter which was of paramount importance for the parties and they both re-conciled to this
position.

Parsi Law
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Section 32A(2) of the Parsi Marriage and Divorce Act, 1936 (as amended by the Act of 1988) enacts a new
provision which in fact does not go well with the main provision. Sub-section (2) runs:

No decree for divorce shall be granted under sub-section (1), if the plaintiff has failed or neglected to comply with an order
for maintenance passed against him under section 40 of the Act or section 488 of the Code of Criminal Procedure, 1898 or
section 125 of the Code of Criminal Procedure, 1973.

The later part of the clause relates to an order of maintenance by a Magistrate. Non-resumption of marital
intercourse for a period of two years or more entitles the other party for divorce under clause (b) of section 32,
where it is a fault ground, and a period has been prescribed. Sub-section (2) of section 32A does not prescribe any
period and thus any failure of compliance even for shorter period bars the remedy. It should also be noted that there
is no reference to order of maintenance in sub-section (1) of section 32A. In the earlier part of the sub-section
reference is to section 40, which relates to permanent alimony and maintenance.

Does section 32A(2) lay down that any non-compliance with the order of maintenance, will disentitle the relief
mentioned in sub-section (1)? If there is no such order, obviously, sub-section (2) will not come in operation. If there
is such an order, non-compliance to that will disentitle the plaintiff the relief of divorce. It should be noticed that sub-
section (1) enacts breakdown grounds at par with the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954.

Muslim Law
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim law through the
judicial interpretation of certain provisions of Muslim law this has been discussed in Chapter I, Part III of this work.
Here a bare summary of law is being given.

Ever since the passing of the Dissolution of Muslim Marriage Act, 1939, the courts have been called upon to place
liberal interpretation on its provision. In 1945 in Umar Bibi v. Md. Din2, it was argued that the wife hated so much
her husband that she could not possibly live with him and that there was total incompatibility of temperaments. On
these averments, the Lahore High Court refused to pass a decree of divorce in favour of the wife. Twenty Five
years later in Mt. Noor Bibi v. Pir Bux3, again an attempt was made to obtain divorce on the ground of
incompatibility of temperaments and on the basis of irretrievable breakdown of marriage. This time this line of
argument prevailed. After observing that from the earliest times of the Islam, Muslim wives have been entitled to
divorce when it was clearly shown that either marriage has ceased to be a reality and suspension of marriage tie
had in fact taken place or the continuance of marriage involved injury to wife. Tayabji, C.J., observed:

There is no merit in preserving intact the connection of marriage, when the parties are not able to, and fail to live within the
limit of Allah!

The learned judge further said that when Muslim law allowed divorce to the wife on the ground of husband’s non-
payment of maintenance, it was not because divorce was by way of punishment of the husband, or was a means of
enforcing wife’s right of maintenance, but as an instance, where cession or suspension of the marriage had
occurred.

Nine years later in Baliq Fatima v. Bajmal1, a Pakistani High Court advanced this argument:

It is only if the judge apprehends that the limits of God will not be observed: (This is a Koranic text) that is, in their relations
to one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible
then he will grant a dissolution.

In 1971 in Aboobacker Haji v. Mamu Koya,2 Krishna Iyer, J., put the theme in his forceful style:

Daily trivial differences get dissolved in the course of time and may be treated as the fleeting trouble of early matrimonial
adjustment. While the stream of life, lived in married mutuality, may wash away smaller pebbles, what is to happen if
intransigent incompatibility of minds break up the flow of the stream? In such a situation we have a breakdown of the
marriage itself and the only course left open is for law to recognize that is the fact and accord a divorce.
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

Support for this view has been derived from some texts and traditions. The Koranic texts is: if limits of God will not
be observed, it is better to dissolve the marriage. The support is sought from the following traditions: (a) when one
of the wives of the Prophet, Ashma, asked for divorce on the ground that she could not continue to live in
matrimony, he granted her divorce; (b) one Jamila appeared before the Prophet and said that though she had no
complaints to make against her husband, Sabit, as to his morals or religion, she could not bring herself to be
wholeheartedly loyal to him as a Muslim wife ought to be, as she hated him. She requested the Prophet to grant her
divorce since she did not want to live in kufr (infidelity). The Prophet enquired from her whether she was willing to
give him back the garden that her husband had given her and on her agreeing to do so the Prophet sent for Sabit
and asked him to take back the garden and grant her divorce; (c) when a couple finding it difficult to pull on
together, approached the Prophet, he said,” let the case be referred to two Muslim arbitrators, and they shall see
whether reconciliation or separation is desirable, and their decision shall be binding upon them both; (d) the Prophet
is quoted to have said, “If a woman be prejudiced by marriage, let it be broken off”.

On the basis of these traditions, Krishna Iyer, J., in A. Yousuf Rawther v. Sowramma1, observed that he was
impressed with the reasoning of Tayabji, C.J., as it accorded well with the holy Islamic text and the ethos of the
Muslim community, which together served as a backdrop for the proper understanding of the provision of the
Dissolution of Muslim Marriage Act, 1939. In his words, in Islam, “the sanctity of family life was recognized; so was
the stubborn incompatibility between the spouses as a ground for divorce for it is intolerable to imprison such a
couple in quarrelsome wedlock. While there is no rose but has a thorn, if what you hold is all thorn and no rose,
better throw it away. The ground is not conjugal guilt but actual repulsion”.

Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenance
by the husband even if the failure has resulted on account of the conduct of wife. [This is based on the
interpretation of clause (ii) of section 2 of the Dissolution of Muslim Marriage Act, 1939], and (b) where there is total
irreconcilability between the spouses. Or, in other words, where marriage has broken down irretrievably. This is
formulated on the basis of clause (ix) of section 2 of the Dissolution of Muslim Marriage Act, 1939.

Christian Law
However it was observed in Capt. Suprabha Joel Gaikwad v. Dr. Joel Soloman Gaikwad2, that in the facts and
circumstances of the case the marriage had broken down irretrievably. In this case first the wife had filed a petition
for nullity on the ground of husband’s impotency and then husband had filed a petition for divorce on the ground of
wife’s adultery. Though, strictly speaking, nullity was granted under sections 18, 19 of the Indian Divorce Act but
nonetheless a new dimension has been added to the Act by the Bombay High Court.

However, after the amendment of 2001 parties can take recourse to section 10(1)(viii).

1 Section 13(1A).
2 Section 27(2).
1 Visnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254 [LNIND 2009 SC 488]: 2009 AIR SCW 2984: (2009) 6 SCC
379 [LNIND 2009 SC 488]: (2009) 3 SCALE 425 [LNIND 2009 SC 488]; Nirmal Kaur v. Gurjit Singh Khanuja, AIR 2012
Chh 12 ; Pawan Kumar Dewangan v. Rama Dewangan, AIR 2012 Chh 47 ; Sunny v. Sujata, AIR 2012 Del 146 : 2012
(2) Hindu LR 14; Jyoti v. Darshan Nirmal Jain, AIR 2013 Guj 218 : 2012 (2) Guj LH 206.
1 Hindu Marriage (Amendment) Act, 1964.
2 Special Marriage (Amendment) Act, 1970.
3 AIR 1995 SC 2170 : (1995) Supp 3 SCC 440: 1995 AIR SCW 3375.
4 Ashok Kumar Bhatnagar v. Shabnam Bhatnagar, AIR 1989 Del 121 [LNIND 1988 DEL 305]: (1989) 1 DMC 172: 1989
Marri LJ 294: 1989 Mat LR 1; Smita Dilip Rane v. Dilip Dattaram Rane, AIR 1990 Bom 84 [LNIND 1989 BOM 391]:
1990 Mah LJ 69 [LNIND 1989 BOM 391]; Nitu alias Asha v. Krishan Lal, AIR 1990 Del 1 [LNIND 1989 DEL 125]:
(1989) II DMC 43: (1989) 1 HLR 663.
1 Chaman Lal Chuni Lal v. Mohinder Devi, AIR 1968 P&H 287 : 70 Punj LR 286; Shakuntla Tandan v. Sardari Lal
Tandan, AIR 1972 P&H 29 : 1971 Cur LJ 806; Laxmibai Laxmichand Shah v. Laxmichand Ravali Shah, AIR 1968 Bom
332 : 70 Bom LR 80: 1968 Mah LJ 338 : ILR (1968) Bom 793; Someshwar v. Leelavati, AIR 1968 Mys 274 : 14 Law
Rep 180: (1968) 1 Mys LJ 447 [LNIND 1968 KANT 7].
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

2 Geeta Lakshmi v. G.V.R Sarveswara Rao, AIR 1983 AP 111 [LNIND 1982 AP 182]: (1983) Mah LR 182: (1983) 1
Andh LT 118 : (1982) AP LJ 405.
3 Geeta Lakshmi v. G.V.R Sarveswara Rao, AIR 1983 AP 111 [LNIND 1982 AP 182]: (1983) Mah LR 182: (1983) 1
Andh LT 118 : (1982) AP LJ 405; Pavuluri Murahari Rao v. Povuluri Vasantha Manohari, AIR 1984 AP 54 [LNIND 1983
AP 70]: (1983) 2 Andh LT 151 : (1983) 2 Andh WR 179: (1983) 2 DMC 453; O.P. Mehra v. Saroj Mehra, AIR 1984 Del
159 [LNIND 1983 DEL 188]: (1984) HLR 269.
4 AIR 1988 Cal 192 [LNIND 1987 CAL 162]: 92 CWN 254: (1988) 1 Hindu LR 544.
1 Shyam Sunder Kohli v. Sushma Kohli, AIR 2004 SC 5111 [LNIND 2004 SC 1020]: 2004 AIR SCW 5857: (2004) 7 SCC
747 [LNIND 2004 SC 1020].
2 Chetan Dass v. Kamla Devi, AIR 2001 SC 1709 [LNIND 2001 SC 988]: (2001) 4 SCC 250: 2001 AIR SCW 1660.
3 Visnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 [LNIND 2009 SC 488]: 2009 AIR SCW 2984: (2009) 3 SCALE
425 [LNIND 2009 SC 488].
1 AIR 1973 Bom 55 [LNIND 1971 BOM 113]: 74 Bom LR 496: 1972 Mah LJ 762 [LNIND 1971 BOM 113]: ILR (1973)
Bom 113 [LNIND 1971 BOM 113].
2 AIR 1983 AP 111 [LNIND 1982 AP 182]: (1982) 2 APLJ (HC) 405: (1983) 1 Andh LT 118 : (1983) 2 DMC 327.
3 AIR 1979 Guj 209 [LNIND 1979 GUJ 131].
4 Jethabhai Ratanshi Lodaya v. Manabai Jethabhai Lodaya, AIR 1975 Bom 88 [LNIND 1973 BOM 28]: 76 Bom LR 304:
1975 Hindu LR 449; N. Varalakshmi v. N.V. Hanumantha Rao, AIR 1978 AP 6 [LNIND 1977 AP 149]: (1977) 2 AP LJ
(HC) 103: (1978) 1 Andh WR 72: 1978 Mat LR 21.
5 Bimla Devi d/o Bakhtawar Singh v. Singh Raj s/o Dasondhi Ram, AIR 1977 P&H 167 : 1977 Cur LJ (Civ) 154: ILR
(1977) 1 P&H 765 : 1978 Marri LJ 274(FB); Anil Jayantilal Vyas v. Sudhaben, AIR 1978 Guj 74 [LNIND 1977 GUJ 32]:
1978 Hindu LR 270: 1978 Mat LR 155: 19 Guj LR 556; Ranjeet v. Sukhdev, 74 PLR 430; K.S. Lalithamma v. N.S.
Hiriyannaiah, AIR 1983 Kant 63 [LNIND 1982 KANT 117]: 1983 Mat LR 168; Gurmeet Kaur v. Harbans Singh, AIR
1981 P&H 161 : 1981 Hindu LR 45: 1981 Marri LJ 250: 1981 Mat LR 236; Mita Gupta v. Prabir Kumar Gupta, AIR 1989
Cal 248 [LNIND 1988 CAL 170]: (1988) 2 Cal HN 181: (1988) 93 CWN 50 : (1989) 1 Hindu LR 218; Balabhadra
Pradhan v. Sundarimani Devi, AIR 1995 Ori 180 : (1995) 2 DMC 60: 1996 Marri LJ 186(interestingly, it was opined that
in a judgment in a restitution petition, there is no decree).
6 AIR 1977 SC 2218 [LNIND 1977 SC 256]: 74 Bom LR 496: (1977) 4 SCC 12 [LNIND 1977 SC 256].
1 Rajendra Krishna Agrawal v. Sandhya Rani, AIR 2009 (NOC) 1328 (Pat).
2 Satya Sundar Tripathi v. Mamata Tripathi, AIR 2009 (NOC) 504 (Ori).
3 1978 HLR 346: AIR 1978 AP 6 [LNIND 1977 AP 149]: 1978 Mat LR 21.
4 1977 HLR 398.
5 AIR 1978 Guj 74 [LNIND 1977 GUJ 32]: 1978 Hindu LR 270: 1978 Mat LR 155: 19 Guj LR 556.
6 AIR 1968 Mys 274 : (1968) 1 Mys LJ 447: 14 Law Rep 180.
7 AIR 1984 Del 159 [LNIND 1983 DEL 188]: 1984 HLR 206: 1984 Marri LJ 57.
1 ILR (1971) Del 1.
2 AIR 1977 Del 178 [LNIND 1976 DEL 14]: ILR (1976) 1 Del 725: 1976 Raj LR 480: 1978 Marri LJ 306.
3 Bimla Devi v. Singh Raj, ILR (1977) 1 P&H 765 : AIR 1977 P&H 167 : 1978 Marri LJ 274.
4 O.P. Mehra v. Saroj Mehra, AIR 1984 Del 159 [LNIND 1983 DEL 188]: (1984) 6 Del Rep J 58: 1984 Marri LJ 57:
(1984) 2 DMC 4.
5 AIR 1984 AP 54 [LNIND 1983 AP 70]: (1983) 1 APLJ (HC) 291: (1983) 2 Andh LT 151 : (1983) 2 Andh WR 179.
6 Sant Kumar Deshmukh v. Chitralekha, (1998) 2 MPLJ 312 : AIR 1998 MP 314 : 1999 (1) Marri LJ 601.
7 AIR 1999 SC 595 [LNIND 1998 SC 100]: 1998 AIR SCW 3885: (1998) 3 SCC 112 [LNIND 1998 SC 100] (P&H).
1 AIR 2001 SC 1285 [LNIND 2001 SC 735]: (2001) 4 SCC 125 [LNIND 2001 SC 735]: 2001 AIR SCW 1196; Chetan
Dass v. Kamla Devi, AIR 2001 SC 1709 [LNIND 2001 SC 988]: 2001 AIR SCW 1660: JT 2001 (5) SC 21 [LNIND 2001
SC 988]: (2001) 4 SCC 250: (2001) 3 SCALE 399 [LNIND 2001 SC 988].
2 AIR 2002 SC 1447 [LNIND 2002 SC 1450] (1).
3 AIR 1984 Del 445 [LNIND 1983 DEL 225].
4 AIR 1985 Del 393 [LNIND 1985 DEL 61]: 1985 Raj LR 384: 1985 Marri LJ 369: 1985 Mat LR 308.
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Chapter IX IRRETRIEVABLE BREAKDOWN OF MARRIAGE

1 See also Gajna Devi v. Purshotam Giri, AIR 1977 Del 178 [LNIND 1976 DEL 14]: (1976) 1 Del 725: 1978 Marri LJ 306;
Mehar Chand v. Gitan, 1979 MLR 263; Krishna Dev v. Mohan Lal, 1978 HLR 549; Ramesh Chandra v. Saroj Kumari,
1979 MLR 330; Leelawati v. Ram Sewak, AIR 1979 All 285 : 1979 Mat LR 355; Shanti Bai v. Prabhakar Atmaram, 1978
MLR 73: 1977 Mah LJ 453; Ram Piari v. Piari Lal, 1975 HLR 265.
1 AIR 1971 (J) 113 .
1 Smriti Banerjee v. Tapan Kumar Banerjee, AIR 1986 Cal 284 [LNIND 1985 CAL 322]: (1986) 1 DMC 45: (1986) 1
Hindu LR 221; Saraswati Sarkar v. Lalit Chandra Sarkar, AIR 2010 Gau 142 [LNIND 2010 GAU 88]: 2011 (1) Civ LJ
538: 2010 (6) Gau LR 866 [LNIND 2010 GAU 88].
2 Balabhadra Pradhan v. Sundarimani Devi, AIR 1995 Ori 180 : (1995) 2 DMC 60: 1996 Marri LJ 186.
3 Girija Kumari v. Vijaynandan, AIR 1995 Ker 159 [LNIND 1995 KER 65]: 1995 (1) DMC 559: 1995 (1) Ker LJ 430 (DB).
4 AIR 2006 SC 1675 [LNIND 2006 SC 192]: 2006 AIR SCW 1550: (2006) 4 SCC 558 [LNIND 2006 SC 192]: 2006 (3)
SCJ 673: (2006) 3 SCALE 252 [LNIND 2006 SC 192].
5 Irretrievable Breakdown of Marriage - Do We Understand its Real Purport? AIR 2005 Jour 101 .
1 AIR 2006 SC 2750 [LNIND 2006 SC 490]: 2006 AIR SCW 3766: (2006) 5 SCC 461 [LNIND 2006 SC 490]: (2006) 7
SCALE 31 [LNIND 2006 SC 490]: 2006 (5) Supreme 329.
2 AIR 1945 Lah 51 : 220 IC 9.
3 AIR 1950 Sind 8 : Pak Cas 1950 Sind 18.
1 PLD 1959 (WP) Law 566.
2 1971 KLT 663 : 1971 Ker LJ 754.
1 AIR 1971 Ker 261 [LNIND 1970 KER 78]: 1970 Ker LT 477: 1970 Ker LJ 544 : ILR (1971) 1 Ker 154 ; Also see
Zainaba v. T.A. Abdul Rasheed, AIR 2013 Ker 54 [LNIND 2012 KER 609]: 2013 (2) DMC 607: 2013 (2) Hindu LR 93.
2 AIR 1997 Bom 171 [LNIND 1996 BOM 914]: (1997) 1 Mah LJ 321 [LNIND 1996 BOM 914]: 1997 (1) Hindu LR 313.

End of Document
 Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After

Divorce
In England, when Matrimonial Causes Bill, 1937 was introduced in Parliament, there was a lurking fear that it may
not get through, as it introduced far reaching reforms in the law of divorce (in the then prevailing social conditions,
introduction of cruelty, desertion etc., as grounds of divorce were considered far reaching reforms, and therefore, as
a “tactical manoeuvre” to facilitate the passing of the Bill, the provision of fair trial to marriage was introduced. It laid
down that no petition for divorce can be entertained before the expiration of a period of three years from the date of
the marriage, unless it is shown that the case is one of exceptional hardship to the petitioner or of exceptional
depravity on the part of the respondent. Since then, in every successive statutes, this rule has been faithfully
reproduced, and even when in 1969 irretrievable breakdown of marriage was accepted as a basis of divorce, the
rule continued to be a part of English matrimonial law1.

When in India the Special Marriage Act was passed in 19542, and again when in 1955 was passed the Hindu
Marriage Act, 19553, the fair trial rule was copied into these statutes. In 1976, by the Marriage Laws (Amendment)
Act this period of three years has been reduced to one year.

The provision does not exist under any other Indian matrimonial law for the simple reason that when in 1869 the
Indian Divorce Act, and when in 1936, the Parsi Marriage and Divorce Act were passed, there was no model to
copy.

Hindu Marriage Act, 1955

Section 14 of the Act, which contains the rule, runs:

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for
dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed
since the date of the marriage:
Provided that the court, upon application made to it in accordance with such rules as made by the High Court in that behalf,
allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is
one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the
court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or
concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the
decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition
without prejudice to any petition which may be brought after the expiration of the said one year upon the same or
substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one
year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the
question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said
one year.

Special Marriage Act, 1954

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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

Section 29 of the Act, which embodies the fair trial rule, runs:

(1) No petition for divorce shall be presented to the district court unless at the date of the presentation of the petition one
year has passed since the date of entering the certificate of marriage in the Marriage Certificate Book:
Provided that the district court may, upon application being made to it, allow a petition to be presented before one year has
passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on
the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained
leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it
pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year
from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the
expiration of the said one year upon the same, or substantially the same, facts as those proved in support of the petition so
dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one
year from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to
the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the
said one year.

Though the wordings of two sections [particularly in sub-section (1)] are somewhat different, they substantially
mean the same thing. The marginal title of both the sections which runs, “Restriction of petition for divorce during
first one year after marriage”, is also identical.

Rationale of the Rule

The rationale of the rule is that every marriage should be given a fair trial to succeed. Initially a period of three
years’ trial was considered reasonable. The Law Commission of England in its 1968 Report has justified the
retention of this clause. According to them, this clause provides “useful safeguard against irresponsible or trial
marriages and a valuable external buttress to the stability of marriage during the difficult early years. It, therefore,
helps to achieve one of the main objectives of a good divorce law”. The assumption underlying this rule is that at
the initial stage of their married life, spouses may not be able to adapt themselves to the new situation and
circumstances of married life and it may happen that in the heat of passions, in rash moment, they may take the
irretrievable step of getting their marriage dissolved for which they may repend later on. It is believed that after living
together for sometime the spouses will have opportunity of knowing each other and may be able to adopt to the
new situation and may be able to adjust with each other’s temperament and needs. But, if after the expiry of the
period of fair trial, parties do not succeed in their endeavour, they may get their marriage dissolved. It has been the
submission of this writer:

This rule may be good when divorce by mutual consent is recognized, but when divorce is allowed only on specified
grounds, on the basis of matrimonial guilt of the parties, then to say to the party, ‘please give a trial to the marriage for full
three years’ would amount to saying ‘please submit to the wrong’. For instance, after two months’ of marriage, respondent
converts to Christianity or starts living in adultery, does it lie in our mouth to say to the petitioner, please wait for 34 months
more, then we would consider your petition. (This is in reference to the period of three years under English law.)

The Law Commission in its 59th Report recommended1 for the repeal of the provision, but Parliament chose to
retain it, though it reduced to the period of one year.

The escape door from the fair trial rule too has been provided in the provision. If the petitioner suffers exceptional
hardship or the conduct of the respondent is of exceptional depravity, marriage can be dissolved earlier. But waiver
of one year cannot be sought by saying that marriage has been broken down irretrievably.2 In other words, the
marriage may be dissolved even before the expiry of the period of one year:
(a) if it is shown that it is a case of exceptional hardship to the petitioner, or
(b) if it is shown that it is a case of exceptional depravity on the part of the respondent.

Sub-section (2) of section 14 lays down that in exercising the discretion by allowing the presentation of the petition
before one year, the court must have regard to the probability of reconciliation and the interest of any child of the
marriage. It is obvious that the intention of Parliament was that the discretion should be used sparingly. But it is
submitted that in a clear case of exceptional hardship to the petitioner or exceptional depravity on the part of the
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

respondent the court should exercise its discretion in favour of the petitioner. It may be a poor consolation to the
innocent party to say that if he or she desires to separate, he or she can seek lesser relief, like judicial separation or
separate residence and maintenance. This may not be adequate. This may not be available in certain cases. It
should not be forgotten that the basic purpose of the law of divorce is to relieve the innocent party from hardship
which has been caused to him or her on account of the act or conduct of the respondent.

This sub-section lays down two further impediments:

Before the court grants leave to present the petition before the expiry of the period of one year since the date of marriage—

(i) it will have regard to the interest of any children of marriage (observe the word “children”, before the expiry
of one year there can be, at best, one child, unless twins are visualized), and
(ii) whether there is a reasonable probability of a reconciliation between the spouses.

It is submitted that both these requirements are irrelevant. There is hardly a possibility of a child within one year, or
if there is one the court has power to take this into consideration before passing a decree. It is submitted that sub-
section (1) was there when originally the period of fair trial was three years. The period of three years was reduced
on one year but sub-section (2) was retained in its original term. Then, section 23(2) of the Hindu Marriage Act,
1955 and section 34(2) of thespecial Marriage Act, 1954 lay down that before passing a decree of dissolution of
marriage the court will make every endeavour to bring about reconciliation between the parties.

Exceptional Hardship and Exceptional Depravity

The expressions “exceptional hardship” and “exceptional depravity” have not been defined in the Hindu Marriage
Act, 1955 or thespecial Marriage Act, 1954. The expression have also not been defined under the Matrimonial
Causes Act. The English courts have not only not defined these expressions, they have found it difficult to do so.
InC. v. C.1, Ormord, L.J., observed these terms involve “value judgments of an unusually subjective character”, and
not surprisingly standard would differ, not merely from time to time, but from judge to judge.” The learned Judge
further observed that “hardship” might arise from the delay which would be involved in waiting for the period of three
years, but it might also be caused by the conduct of the other party. Elucidating the meaning of the expressions, the
learned judge said, that “depravity” conveys only a vague idea of “a very unpleasant conduct”.

In the later decisions, English courts have so widely interpreted the expression “exceptional hardship” that occasion
hardly arose to elucidate the meaning of the expression “exceptional depravity”. Since in early cases emphasis was
on preservation of marriage, these expression were restrictively interpreted2.

It is submitted that the criterion should be that hardship suffered by the petitioner in continuing to live in matrimony
is greater than the hardship caused by divorce—most of us still believe that divorce itself causes hardship, though
some insist that it is an emancipation from a situation which has become unbearable.

Husband filed petition of divorce on grounds of cruelty and adultery. Application under section 14 allowed. Since
there was no scope of reconciliation and there were no children, divorce was allowed.1

Some decided English cases may be reviewed here. Charlesby v. Charlesby2, and Fisher v. Fisher3 and Bowman v.
Bowman4, represent a trend where the court insisted to give a restrictive interpretation to these expressions. In the
first case the Greek wife sought leave to present petition before the expiry of three years with the averment that her
husband forced her to participate in certain perverted sex practices and committed gross acts of cruelty on her
knowing full well that she was in a frail state of health. She alleged that after her coming to England (parties were
married in Greece), the husband broke up the matrimonial home rendering her homeless and stranger in a foreign
country. The Court refused to grant leave to present petition earlier.

In the second case, both the spouses who were under the age of twenty at the time of marriage and were serving in
armed forces. During honeymoon and thereafter the wife refused sex to her husband unless he used
contraceptives. When once her husband had no contraceptive, she denied sexual intercourse to him. Just after four
months of the marriage, wife wrote to her husband that she did not wish to live with him. She also made a
statement that on several occasions between April 1947 and January 1948, she has had adulterous relationship
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

with an American sailor. The Court refused husband’s application for presenting a petition for divorce before the
expiry of the period of fair trial to marriage.

In the third case, it was wife’s application for leave to file divorce petition before the expiry of the period of three
years. The marriage between the parties took place on December 24, 1963 when the man was thirty-eight years old
and the wife was twenty-four years of age. The husband was a divorcee. Almost eight months after the marriage,
the wife left the husband and presented an application seeking leave to present divorce petition before the expiry of
the fair trial to marriage period, with the averments that her husband shouted at her, made excessive sex demands,
refused to give her any house-keeping allowance, beat the door to frighten her, was living on a credit and indulged
in excessive drinking. She further alleged that her husband had a child from another woman in February 1966. In
her statement she also said that she was pregnant from another man whom she wanted to marry. The Court again
refused to grant leave. The Court observed that in such an application the Court’s function was to examine all
allegations and facts and then to ascertain that if the allegation were correct, would they amount to exceptional
hardship or exceptional depravity? The Court further said that leave as refused in the circumstances of the case
because the conduct alleged is not of exceptional depravity and the petitioner did not suffer any hardship if leave
was not granted—the Court did not consider that the pregnancy by another man constituted any hardship to her.
Lord Denning observed:

The answer depends on the word ‘exceptional’... The only cases in which the question arises are, of course, those of
adultery or cruelty. If there is nothing more than adultery with one person within the first three years of marriage that may be
considered ordinary depravity. There is, I am sorry to say, nothing exceptional about that situation and it does not involve
exceptional hardship on the innocent spouse, the applicant. The distress that it causes is one which may have to be
endured. If, however, the adultery is coupled with another matrimonial offences, e.g., if a husband not only commits
adultery but also deserts his wife in favour of another woman, or if he is cruel with her, thus causing her not only distress by
his adultery but also injury by violence, then even if his offence cannot be stigmatised as exceptional depravity on his part,
nevertheless, it does involve exceptional hardship suffered by the wife... The husband who commits adultery within a few
weeks of marriage or who commits adultery promiscuously with more than one woman or with his wife’s sister or with a
servant in the house may probably be labelled as exceptionally depraved.
Cruelty again, by itself, is, I fear, not exceptional but if it is coupled with aggravating circumstances, drunkenness and
neglect or if it is exceptionally brutal or dangerous to health, then even if it does not evidence exceptional depravity on the
part of respondent it does at least cause exceptional hardship to the applicant. If it is coupled with perverted lust, it shows
exceptional depravity on the part of the respondent.

This case has been followed by the Madras High Court in Meghnatha v. Susheela1, the Court propounded two
propositions:
(i) it would be a case of exceptional hardship to the petitioner and exceptional depravity on the part of the
respondent, if respondent has committed more than one matrimonial offence, and
(ii) it would also exceptional hardship to the petitioner where respondent though has committed one
matrimonial offence, his conduct is reprehensible.

In Sawita Devi v. Pran Nath2, the parties were young. They were married on June 11, 1962, and the wife refused to
live with her husband after a few months. The petition was presented with an application under section 14 of the
Hindu Marriage Act, 1955. But the petition remained pending till October 18, 1965. By this time the period of three
years had already elapsed. On that date, the petitioner presented an amended petition and pleaded that the period
for which his petition was pre-mature may be condoned. The trial Court allowed the application. The Jammu and
Kashmir High Court disapproved of this, but since the period of three years had already elapsed, the Court did not
interfere. Bhat, J., observed that leave could not be granted merely on the basis that parties were young. He said:

In our opinion section 14 has been enacted simply to discourage young spouses from taking recourse to legal proceedings
in a frivolous, hasty, rash or irresponsible manner so that the ship of marriage may not be wrecked in the first storm of
married life1.

In V. v. V.,2 marriage of the parties was solemnized on January 25, 1965. Parties already had a child by the pre-
marital intercourse which was accepted by them as the child of the family. Within a fortnight or so of the marriage,
the husband assaulted the wife on her head with a bottle with such a force that bottle was broken into pieces. The
wife left the matrimonial home in April 1965 and returned to it in October 1965 after reconciliation. Within the next
month, the husband committed adultery in the matrimonial home. By this time wife was again pregnant and the
husband again hit her and punched her as a result she suffered bruises. She left the home. She asked for leave of
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

the court to present her petition before the expiry of three years. The court of appeal allowing her application,
observed that cruelty and adultery of the husband were of an exceptionally grave nature and there was hardly any
prospect of reconciliation.

In our submission “hardship” or “depravity” to be exceptional should be beyond the ordinary run of complaints.
Depravity implies some moral guilt and if moral guilt is lacking, the conduct cannot be called depraved. For
instance, incurable insanity may not amount to exceptional depravity, yet it may amount to exceptional hardship. It
is possible that the same thing may amount to exceptional depravity as well as exceptional hardship. For instance,
a respondent converts to, say Islam and insists that meat, including beef, must be cooked in the same kitchen. The
petitioner is a strict vegetarian. This may be a case of exceptional depravity on the part of the respondent as well as
of exceptional hardship for the petitioner. But mere conversion to another religion would not amount to exceptional
depravity. It is submitted that commission of matrimonial offences, like rape, sodomy or bestiality by themselves,
amounts to a conduct of exceptional depravity on the part of the respondent. Similarly, if the respondent is living in
adultery and from that adulterous connection gives birth to a child and wants to pass it on as the petitioner’s child or
insists that petitioner must maintain it or act as a father to it, it will be a case of exceptional depravity. Further, when
living in adultery is coupled with desertion it will be a case of exceptional hardship. If soon after the marriage, a
husband becomes a Sanyasi and leaves the home to unknown destination, it will be a case of exceptional hardship
to the petitioner.

Leave Obtained by Misrepresentation or Concealment of Facts

If permission to present a petition within one year has been obtained by misrepresentation or concealment of fact,
the court may pronounce the decree dissolving the marriage subject to the condition that it shall not have effect until
after one year from the marriage, or it may dismiss the petition without prejudice to the presentation of the petition
on the same or substantially the same fact after the expiry of the period of one year. It is submitted that no petition
is decided before one or two years, the question is not likely to arise.

Bar to Petition does not Apply to Nullity or Judicial Separation

The judicial separation petitions or nullity petitions are not subject to the fair trial rule. It may be recalled that in
some nullity petitions one year delay would be fatal, such as on the ground of pre-marriage pregnancy. It also,
obviously, does not apply to restitution petitions.
BAR TO REMARRIAGE AFTER DIVORCE

Under the matrimonial law of most of the communities, parties are not free to remarry immediately after the passing
of the decree dissolving the marriage. Some period must elapse between the decree of divorce and remarriage.
The Hindu Marriage Act, 19551, the Special Marriage Act, 19542, and the Parsi Marriage and Divorce Act, 19363,
contain such a provision. Under Muslim law also parties are not free to remarry during the period of idda.

Hindu Marriage Act, 1955

Section 15 of the Act which contains the provision runs:

When a marriage has been dissolved by a decree of divorce and either there is no right to appeal against the decree. Or, if
that is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has
been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

Special Marriage Act, 1954

Section 30 of the Act which contains the provision runs:
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

Where a marriage has been dissolved by a decree of divorce; and either there is no right of appeal against the decree or if
there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal
has been presented but has been dismissed, either party to the marriage may marry again.

Parsi Marriage and Divorce Act, 1936

Section 48 of the Act which contains the provision runs:

When the time limited for appealing against any decree granting a divorce or annulling or dissolving a marriage shall have
expired, and no appeal shall have been presented against such decree, or when any such appeal shall have been
dismissed, or when in the result of any appeal of divorce has been granted or a marriage has been declared to be annulled
or dissolved, but no sooner, it shall be lawful for the respective parties thereto to marry again.

Indian Divorce Act, 1869

An analogous provision is contained in section 57 of the Act which runs:

1[Liberty to parties to marry again.—Where a decree for dissolution or nullity of marriage has been passed and either the
time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an
appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for
either party to the marriage to marry again.]

Bar to Remarriage
It is evident that the provision under all the three statutes is almost identical. Some cases have come under the
Hindu Marriage Act, 1955 before the amendment of section 14 by the Marriage Laws (Amendment) Act, 1976,
when it had a proviso2. Under the proviso, there was a bar on remarriage for a period of one year after a decree
dissolving the marriage has been passed. Then in several cases question arose as to the validity of marriage
performed within one year of the decree of divorce. In Uma Charan Roy v. Kajal Roy3, the marriage of Uma Charan
was dissolved by a decree of divorce passed on March 23, 1964. On April 21, 1964, he entered into a second
marriage with one year of the decree of divorce passed in his petition against his former wife. The court granted the
declaration, the court said that the effect of section 15 was that the marriage continued to subsist for a period of one
year even after the decree of its dissolution was passed, and therefore any marriage by either spouse during this
period was void4. The case of Kishan Lal v. Krishna5, also presents somewhat peculiar fact situation. In this case
the wife against whom the husband had filed a petition for restitution of conjugal rights alleged that her marriage
with the petitioner was declared null and void and thereafter she had married another person. But she remarried
before the period of appeal had expired. What seems to have happened in this case is that section 15 of the Hindu
Marriage Act, 1955 is sought to be applied to the present case, while in fact it applies only to a decree of divorce.
And it is submitted that the court erred, though Bhat, J., correctly made the following observation on the objective
on section 15:

The principle behind this section appears to use to be very salutary, because it compels the party who gets a decree of
divorce to wait at least for one year, and to reconsider the position, and to avoid further complication of any off-spring that
may be born after the decree but before one year5.

In Mohan Murari v. Kusmn Kumari1, the wife’s petition was for declaration that her marriage with her husband was
null and void. While the husband’s appeal was pending, she took a second husband. Holding that husband’s appeal
has become infructuous, the Madhya Pradesh High Court said that there was no legal incompetency in the wife for
contracting a remarriage on her marriage with the appellant being annulled by a decree of nullity. The marriage
having been annulled, their status as husband and wife of each other had ceased to exist. If the appellant wanted
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

the status quo to be preserved till the final decision of the appeal, he should have applied for a prohibitory order
restraining the respondent from marrying again till the appeal filed by him had been decided. When the remarriage
was a valid marriage, it could not be annulled or dissolved for the reason that it was contracted during the pendency
of the appeal, nor could it be affected by the ultimate decision of the appeal, even if went in favour of the appellant.
Thus, the appeal had been rendered infructuous by the marriage of the respondent wife during pendency of appeal.

This view has been dissented in Vathsala v. N. Manoharan2. In this case wife obtained an ex parte decree from the
court annulling her marriage. The husband applied for setting aside the ex parte decree. The wife remarried during
the pendency of her husband’s application. Relying on Mohan Murari v. Kusum Kumari1, she argued that her
husband’s application had become infructuous. Disagreeing with Mohan Murari’s case Veereswami, J., said that
when an order of nullity of marriage was made and the law allowed an appeal as well as an application to set aside
an ex parte order and actually these remedies had been resorted to, any act of the parties pending final disposal of
those remedies availed of could not have the effect of rendering them infructuous, so to speak. Where such
remedies are provided from an order, the order should be taken to be valid and in force, but only subject to the
result of the application to set aside the ex parte order or the result in the appeal3. The Punjab and Haryana High
Court has also held that appeal against decree of nullity would not be rendered infructuous if during the pendency
of appeal the husband remarries.4

In Krishen Lal v. Krishna,5 which has been reviewed earlier, the Jammu and Kashmir High Court also disagreed
with the Madhya Pradesh view. In Uma Charan Roy v. Kajal Roy6, the Calcutta High Court distinguished the
Madhya Pradesh decision on the ground that section 15 of the Hindu Marriage Act, 1955 has no application to
nullity decrees.

The provision under the Indian Divorce Act, 1869 has also come for interpretation in some cases. Section 57 of the
Act bars remarriage for a period of six months. In Warter v. Warter7, the second marriage was performed within six
months of the decree dissolving the marriage. The Court held the second marriage as void. Similarly, in Esther
Maria Jacson v. Frederick Ormond Layland Jacson1, the Allahabad High Court said that where the successful party
in a petition for divorce entered into a second marriage within six months of the decree of divorce, the second
marriage was void. In Battie v. Brown2, the Madras High Court observed that in view of section 57, a decree of
divorce did not dissolve the tie of marriage until after the expiry of the period of six months as stipulated therein. In
J.J. Turner v. A.E. Turner3, the Calcutta High Court also took this view.

Most of these cases were considered by the Supreme Court in Lila Gupta v. Laxmi Narain4. In this case one
Rajendra Kumar and Sarla Gupta sued each other for the dissolution of their marriage and a decree dissolving the
marriage was passed on April 8, 1963. On May 25, 1963 Laxmi Narayan married, Lila Gupta, but unfortunately he
expired on May 7, 1965. Lila Gupta claimed to succeed to Laxmi Narain’s property as his widow. This claim was
contested by Laxmi Narayan’s brothers and others on the ground that since Lila Gupta married Laxmi Narain, in
violation of section 15 of the Hindu Marriage Act, 1955, her marriage was null and void. It is submitted that in his
zeal to see that young widow was not disinherited, Desai, J., proceeds on the premises which are not correct. The
learned Judge says that only those marriages under the Hindu Marriage Act, 1955 are void which are expressly
made void by section 11, and other are thus not void. His argument is: that since a marriage in violation of the
provision of proviso is not declared void by any section of the Act, the marriage is not void. Then does it mean
marriages performed without any ceremonies or with defective ceremonies,i.e., in violation of section 7 of the Act,
are not void?

The learned Judge posed the question thus: Did the framers of law intend that a marriage contracted in violation of
the provision contained in the provision to section 15 to be void ? While enacting the legislation, the framers had in
mind the question of treating certain marriages void and provided for the same. It would, therefore, be fair to infer as
legislative exposition that a marriage in breach of other conditions the Legislature did not intend to treat as void.
Then, he said that a decree of divorce breaks the marriage tie. Incapacity for marriage of such persons whose
marriage is dissolved by a decree of divorce for a period of one year was presumably enacted to allay
apprehension that divorce was sought only for contracting another marriage or to avoid dispute about the parentage
of children. At the time of the divorce the wife may be pregnant. She may give birth to a child after the decree. If a
marriage is contracted soon after the divorce a question might arise as to who is the father of the child, viz., the
former husband or the husband of the second marriage. There was some such time lag provided incomparable
divorce laws therefore, it was considered proper and that appears to be the purpose or object behind enacting the
proviso to section 15. According to the learned Judges, section 15 is merely regulatory provision and not
mandatory, and therefore, its violation did not render the marriage void.

The cases under section 57 of the Indian Divorce Act, 1869 were distinguished by holding that the provision was
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

not pari materia and thus these cases had no bearing on the interpretation of section 15 of the Hindu Marriage Act,
1955. The Judge held that under the Indian Divorce Act, 1869 a preliminary decree was followed by a final decree
of divorce, then only marriage stood dissolved. It appears that he got some what mixed up. The six months period
spoken of by section 57 is the period after the final decree and not the period between preliminary decree and final
decree.

Another interesting reference was made to the Muslim law provision of idda: a Muslim wife cannot marry during the
period of idda. But the learned Judge said that a marriage performed in violation of this requirement was not void
but irregular and hence, according to him, a marriage performed in violation of section 15 was not void; it was
merely voidable. It was again overlooked that a marriage during idda is irregular among the Sunnis, but is void
among the Shias.

In view of the above observation, the learned Judge held that the marriage of Lila Gupta was not void and it
reversed the Allahabad decision and overruled Calcutta decision in Uma Charan Roy v. Kajal Roy, AIR 1971 Cal
307 [LNIND 1970 CAL 180]: 75 CWN 303. With this Pathak, J., (as he then was) agreed in conclusion but not on
reason. It is interesting to note that this observation tends to introduce the concept of irregular marriage in Hindu
law.

Now that the proviso to section 15 has been repealed by the Marriage Laws (Amendment) Act, 1976, the matter
should not detain us any further.

But question still remains: will a marriage be valid if performed in violation of section 15? In other words, if a
marriage is performed during the period when the period of appeal has not expired or during the period when
appeal is pending, will it be valid?

The question came for consideration before the Supreme Court in a slightly different setting in Chandra Mohini
Srivastava v. Avinash Prasad Srivastava1. A decree of divorce was passed and the same was upheld by the High
Court. Thereafter the husband remarried. The wife preferred a special appeal to the Supreme Court and leave was
granted. The husband prayed to the Supreme Court that in view of the fact that he had remarried leave to appeal
should be revoked. It may be noted that section 15 of the Hindu Marriage Act, 1955 did not apply to the case of
application for special leave. Wanchoo, J., observed:

Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot
by marrying immediately after the High Court’s decree and thus take away from the losing party’s chance of presenting an
application for special leave. Even though section 15 may not apply in terms and it may not have been unlawful for the first
respondent to have married immediately after the High Court’s decree, for no appeal as of right lies from the decree of the
High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application
for special leave had been filed in this Court and he could not by marrying immediately after the High Court’s decree
deprive the appellant of the chance to present a special leave petition to this Court. If a person does so he take a risk and
cannot ask this Court to revoke the special leave on this ground.

But Court did not say that the marriage would be void or not. Declining to say whether the child born of this union
would be legitimate or not, the Court said that section 16 of the Act would take care of it. Section 16, inter alia,
confirms a status of legitimacy on the children of void marriages. By implication it appears that it was in the mind of
the Court that such a marriage would be void.

It has further been held that remarriage should not be done before expiry of period for SLP. In the instant case the
husband had remarried within that and was held liable to pay Rs. 5 lakhs to the wife.1

Although the question was not before the Supreme Court in Lila Gupta’s case, Pathak, J., dwelt on it, obiter.
Repelling the contention that unless the statute specifically declared a marriage to be nullity, it could not be
pronounced so by the court, the learned Judge observed that the language of the statute, the context in which the
provision found place and the object intended to be served were the indicators to find out whether the marriage was
meant to be void or not. The learned Judge felt that the provision in section 15 of the Hindu Marriage Act, 1955 was
mandatory. According to him:

The main provision of section 15 provides that when a marriage has been dissolved by a decree of divorce, either party to
the marriage may marry again, if there is no legal right of appeal against the decree or, if there is such a right of appeal the
time for appealing has expired without an appeal having been presented, or an appeal having been presented has been
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

dismissed. In other words, the right to remarriage shall not be exercised before the decree of divorce has reached finality.
Similar provision is contained in the English statutes. The courts in England have consistently taken the view that the right
to remarry pertains to the capacity of the parties to enter into marriage, and when a limitation in point of time is placed on
the exercise of the right it is regarded as a qualification of the right itself, and a remarriage effected in violation of the time
limitation has been held to be a void marriage.

Then Pathak, J., approvingly referred to cases decided under the Indian Divorce Act, 1869. He quoted the following
passage from Dixon, C.J., with approval:

In English law a restraint on remarriage so as to allow time for appealing appears to be regarded as designed to give a
provisional or tentative character to the decree dissolving the marriage so that it does not yet take effect in all respects. It is
regarded as ancillary to the provisions of the law which for a comparatively brief time makes the decree absolute for
dissolution contingently defeasible in the event of appeal. It is as if there is a residual incapacity to remarry arising out of the
previous marriage and not yet removed by the process provided for dissolving it.

The learned Judge opined that a marriage performed in violation of section 15 of the Hindu Marriage Act, 1955 was
void. This view has been confirmed by the Supreme Court in Tejinder Kaur v. Gurmit Singh.1It is submitted that this
is the correct view. As it has been submitted earlier since section 16 of the Hindu Marriage Act, 1955 does not apply
to section 15, as it does not apply to section 7, children of such marriage will be illegitimate.

But, sometimes, fact-situations are so different that strict adherence to the letter of law is bound to result in gross
injustice. Thus, the case of S.V. Suhasini Devi v. Padmanabhan Madhavan,2 provides a bizarre situation. The
husband obtained an ex parte decree of divorce against the wife on 8-2-1984. The wife did not file an appeal within
30 days. The husband remarried on 20-12-1985 and a male child was born to his second wife on 15-11-1986.
Thereafter, the wife filed an appeal on 26-5-1986, i.e., more than two years after the decree of divorce. She also
filed an application for condonation of delay in filing the appeal. This application was granted. In the peculiar facts of
this case, the husband took the second wife at a time when there was no impediment for the second marriage. The
period of appeal had expired. He had in fact married after one year and eight months of the decree dissolving the
marriage. Thus his second marriage cannot be faulted. It is a valid marriage in terms of section 15 of the Hindu
Marriage Act, 1955. If his first wife’s appeal is granted she will be his wife. It is not going to help matter to say that
the period for filing the appeal does not expire if once the delay in filing the appeal is condoned. After all how long
should a spouse of dissolved marriage wait to remarry? It is submitted that in such situations the court should look
at all the facts and circumstances of the case, and if a second marriage has taken place, the delay should not be
condoned. In the alternative, we should have a rule that if a party want to go to the Supreme Court in a special
appeal he or she should give a notice to that effect immediately on the disposal of his appeal in the High Court, to
the other party.

Nullity of Marriage and Section 15 of the Hindu Marriage Act, 1955

Section 15 of the Act applies only to a decree of divorce. It does not apply to a decree of nullity. It has been earlier
submitted that the Madras High Court erred in applying section 15 to nullity decrees. Cases have been discussed,
including that of the Supreme Court in Lata Kamat’s case3 which deals with decrees of divorce. The question
directly came before the Bombay High Court in Lila v. Vilas,4 where in husband had obtained a decree of nullity.
The wife filed an appeal. Before the appeal was filed, husband took another wife. The Bombay High Court said that
section 15 of the Act or the principles thereunder has been made applicable to cases of dissolution of marriage by
divorce. The provisions of section 15 or the principles thereunder cannot apply to cases where the decree of nullity
annulling the marriage is passed. It seems that a decree for dissolution of marriage stands on a different footing
than a decree for annulment of marriage, the basic difference being that the forms postulates a valid marriage,
which for happening of subsequent events requires to be dissolved, whereas the latter case postulates a voidable
marriage and upon such marriage being declared void, the parties are relegated to the position as if there was no
marriage between them. Upon declaration of a marriage as void, the parties to such a marriage would be free to
contract fresh marriage in the absence of any legal incompetency in their way. The court also observed that at the
time when husband remarried no stay of the decree existed, and thus he was within his right to marry. On the
remarriage, appeal becomes infructuous1.

In Lata Kamat v. Vilas2, the Supreme Court has taken the view that section 15 of the Hindu Marriage Act, 1955
applies to void marriages also. Oza, J., said that what section 15 means when it uses the phrase ‘has been
dissolved by decree of divorce’ is that where the relationship of marriage has been brought to an end by
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

intervention of court by a decree, this decree will include a decree under sections 11, 12 and 13. If it is accepted
that section 15 will not apply to cases when a decree is passed under section 11 or section 12 it will mean that as
soon as a decree is passed the party aggrieved may appeal but the other party by remarriage would make the
appeal infructuous and therefore the right of appeal of one of the parties to the decree under section 28 will be
subject to the act of the other party in cases where decree is passed under section 11 or section 12. If it were so,
the Legislature would have provided a separate provision for appeal when there is a decree under section 13 and a
different provision for appeal when there is a decree under section 11 or section 12 as the right of appeal against a
decree under section 11 or section 12 could only be a limited right depending upon the will of the other party. The
Legislature in its wisdom has enacted section 28 conferring a right of appeal which is unqualified, unrestricted and
not depending on the will or desire of a party, against all decrees in any proceeding under this Act which will include
a decree under sections 11, 12 or 13 and therefore the only interpretation which could be put on the language of
section 15 should be that which will be consistent with section 28. Thus the phrase ‘marriage has been dissolved by
decree of divorce’ will only mean where the relationship of marriage has been brought to an end by the process of
court by a decree. This is clearly a case of judicial separation. If we look at sections 13, 14 and 15 in clear
perspective, these sections deal only with dissolution of marriage. Section 13 lays down grounds of divorce. Section
14 enacts the fair trial rule,i.e., no marriage should ordinarily be dissolved before the expiry of a period of one year.
This clearly applies to a valid marriage and not to void or voidable marriage. Similarly, section 15 lays down as to
when either party to a marriage which has been dissolved can remarry. The section would not apply to a void
marriage obviously as either party to a void marriage is free to remarry even without obtaining a decree of nullity.
Thus, the broad sweep of the judgment including decrees under section 11 is obviously untenable and in our
submission wrong. The case before the Supreme Court related to a voidable marriage. On 3-4-1985 the husband
was granted a decree of nullity on the ground that wife was pregnant by someone else at the time of marriage
[section 12(1)(d)]. The husband remarried on 27-6-1985. The second appeal was filed on 19-7-1985. Before the
appellate court the husband argued that on account of a valid second marriage by him, the appeal has become
infructuous. Accepting the contention of the husband, the first appellate court as well as the High Court dismissed
the appeal.

It seems the difficulty before the court was that an appeal clearly lay under section 28 against a decree passed
under section 11 or 12 as it lies against a decree passed under sections 13, 9 and 10. Section 15 obviously does
not apply to a decree under sections 9 and 10. It certainly applies under section 13. As has been submitted earlier it
cannot apply to section 11, but should it apply to section 12 as the thrust of the argument of Oza, J., is that
otherwise appeal becomes infructuous. It is submitted that why an appeal should become infructuous if one of the
parties to decree remarries? Mistake lies here. If a party marries next day after a decree of divorce is passed under
section 13, does it mean that the appeal filed by the other party within the period of limitation becomes infructuous?
It is submitted that it does not. If appeal is accepted the party marrying will suffer the consequences: his second
marriage would become void. The same will be consequence of a party remarrying after a decree under section 12.
No social purpose is served by twisting the provisions of section 15 as had been done by the learned Judge.

One may note that the Bombay High Court in Lila v. Vilas1, thought that Supreme Court decision in Lila Gupta’s
case held that a marriage performed in violation of the provision of section 15 was invalid. This is not so, the
Supreme Court held that the marriage performed in violation to the proviso to section 15 was not void. The proviso
laid down that parties could marry within one year of the decree of dissolution. The proviso has since been deleted2.

Appeal does not become infructuous because a party has married during the pendency of appeal3.

Muslim Law
Idda

The Muslim law lays down that when a marriage is dissolved by divorce or death, the woman must wait for some
time before she can remarry. This period during which she is prohibited for remarrying is known as idda. The
abstinence from remarrying is imposed with a view to ascertaining the pregnancy of the woman, so as to avoid
confusion of paternity. The different period of idda are provided depending upon the manner in which the marriage
is dissolved. Thus, when a marriage is dissolved by divorce, the woman must perform idda of three menstruation
courses, if she is subject to them, if not of three lunar months. If it is found that she is pregnant, then the period of
idda continues till she delivers the child. But if the marriage has not been consummated, she is not bound to
observe any idda and is free to remarry immediately. When the marriage is dissolved by death of the husband, the
wife is to observe idda, whether the marriage is consummated or not, for a period of four months and ten days. If
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

the woman is pregnant at the time of the death of the husband; then the period of idda is four lunar months and ten
days, or until delivery whichever period is longer. The period of idda commences immediately from the day the
marriage is dissolved, even though the woman may come to know of the divorce or death of the husband later on.
And if she comes to know of it only after the termination of the period of idda, she needs not perform any idda.

Muslim law lays down that one should not marry a woman who is undergoing idda. Not merely the woman is
prohibited from marrying during the period of idda, even the husband of the woman cannot remarry during the
period she is undergoing idda.

It is settled view that a marriage performed during the period of idda is not void, but merely irregular. Under the Shia
law such a marriage is void.

1 It is now section 3 of the Matrimonial Causes Act, 1973.

2 Section 29.
3 Section 14.
1 Law Commission, 59th Report, Para 2.4.
2 Urvashi Sibal v. Govt. of NCT of Delhi, AIR 2010 Del 157 [LNIND 2010 DEL 20]: 2010 (6) All MR 28JS: 2011 (1) DMC
654.
1 (1979) 1 All ER 556.
2 See for instance Fisher v. Fisher, (1948) p. 263: 64 TLR 245; Montague v. Montague, (1974) 4 Fam 68.
1 Priyanka Maity v. Sabyasachi Maity, AIR 2012 Cal 243 [LNIND 2012 CAL 149]: 2012 (3) Cal LT 687: 2012 (2) DMC
754.
2 (1947) 176 LT 532.
3 (1948) p. 263: 64 TLR 245.
4 (1949) 2 All ER 127 : 1949 P 353: 65 TLR 461.
1 AIR 1957 Mad 423 [LNIND 1956 MAD 212].
2 AIR 1967 J&K 89 : 1967 Kash LJ 67.
1 Sawita Devi v. Pran Nath, AIR 1967 J&K 89 (91): 1967 Kash LJ 67.
2 (1966) 3 All ER 493.
1 Section 16.
2 Section 30.
3 Section 48.
1 Subs. by Act 51 of 2001, sec. 30.
2 The unamended section 14 runs as under:
When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if
there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an
appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:
Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one
year has elapsed from the date of the decree in the court of the first instance.
3 AIR 1971 Cal 307 [LNIND 1970 CAL 180]: 75 CWN 303.
4 Earlier in Lila Gupta v. Laxmi Narain, ILR (1969) 1 All 92, this view was expressed.
5 Kishan Lal v. Krishna, AIR 1971 J&K 31 : 1970 Kash LJ 403: 1971 J&K LR 112.
1 AIR 1965 MP 194 : 1965 Jab LJ 260: 1965 MPLJ 321.
2 AIR 1969 Mad 405 [LNIND 1968 MAD 44]: (1969) 1 MLJ 402 [LNIND 1968 MAD 44]: 81 Mad LW 609.
3 Rajeshwari v. Jugal Kishore Gupta, AIR 1990 MP 217 [LNIND 1989 MP 317]: 1990 MPLJ 103, where the Madhya
Pradesh High Court took the same view.
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Chapter X Fair Trial to Marriage Rule and Bar to Remarriage After Divorce

4 Veena Rani v. Romesh Kumar, AIR 1995 P&H 213 : 1994 (2) DMC 536: 1995 (21) Marri LJ 98: 1994 (3) Punj LR 67.
5 AIR 1971 J&K 31 : 1970 Kash LJ 403: 1971 J&K LR 112.
6 AIR 1971 Cal 307 [LNIND 1970 CAL 180]: 75 CWN 303.
7 (1890) 15 PO 152.
1 (1912) ILR 34 All 203.
2 AIR 1916 Mad 847 : ILR 38 Mad 452.
3 AIR 1916 Mad 843 .
4 AIR 1978 SC 1351 [LNIND 1978 SC 152]: (1978) 3 SCC 258: (1978) ALJ 695.
1 AIR 1967 SC 581 [LNIND 1966 SC 257]: (1967) 1 SCR 864 [LNIND 1966 SC 257]: 1967 (1) SCJ 42.
1 Suman Kapur v. Sudhir Kapur, AIR 2009 SC 589 [LNIND 2008 SC 2191]: 2008 AIR SCW 7730: (2009) 1 SCC 422
[LNIND 2008 SC 2191]: (2008) 14 SCALE 404 [LNIND 2008 SC 2191].
1 AIR 1988 SC 839 [LNIND 1988 SC 131]: (1988) 1 HLR 584: (1988) 2 SCC 90 [LNIND 1988 SC 131].
2 AIR 1989 Ker 314 [LNIND 1989 KER 98]: (1989) 1 Ker LJ 609: 1990 (1) Hindu LR 521.
3 AIR 1989 SC 1477 [LNIND 1989 SC 187]: (1989) 2 SCC 613 [LNIND 1989 SC 187]: JT 1989 (3) SC 48 [LNIND 1989
SC 187].
4 AIR 1987 Bom 231 [LNIND 1987 BOM 102]: 1987 Mah LJ 174 [LNIND 1987 BOM 102]: (1987) 2 Bom CR 582 [LNIND
1987 BOM 102]: 1987 Mat LR 283.
1 That section 15 does not apply to nullity decree has been held in Mohanmurari v. Kusmkumari, AIR 1965 MP 194 :
1965 Jab LJ 260: 1965 MPLJ 321; Pramod Sharma v. Radha, AIR 1976 P&H 355 : 1977 Punj LR 447: ILR (1976) 2
P&H 335 and Jamboo Prasad v. Malti Prabha, 1979 Mat LR 320: AIR 1979 All 260 .
2 AIR 1989 SC 1477 [LNIND 1989 SC 187]: (1989) 2 SCC 613 [LNIND 1989 SC 187]: JT 1989 (3) SC 48 [LNIND 1989
SC 187].
1 AIR 1987 Bom 231 [LNIND 1987 BOM 102]: 1987 Mah LJ 174 [LNIND 1987 BOM 102]: (1987) 2 Bom CR 582 [LNIND
1987 BOM 102]: 1987 Mat LR 283.
2 Marriage Laws (Amendment) Act, 1976.
3 Lata Kamat v. Vilas, 1989 Mah LJ 616 [LNIND 1989 SC 187]: (1989) 2 SCC 613 [LNIND 1989 SC 187]: AIR 1989 SC
1477 [LNIND 1989 SC 187]; Smita Dilip Rane v. Dilip Dattaram Rane, AIR 1990 Bom 84 [LNIND 1989 BOM 391]:
(1990) 2 DMC 95: 1990 Mah LJ 69 [LNIND 1989 BOM 391].

End of Document
 Chapter XI Bars to Matrimonial Reliefs
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter XI Bars to Matrimonial Reliefs

As it has been stated in Part III of Chapter I of this work, the offence theory of divorce (presently known as fault
theory) visualizes a dichotomy of guilt on the part of the respondent and innocence on the part of the petitioner. The
theory lays down that even if the petitioner has been able to establish the guilt of the respondent, he cannot get the
matrimonial relief prayed for if he is not able to establish that he is innocent, that is to say, he should be able to
establish that he was not connected with, or responsible for, the offence or guilt of the respondent. Originally, these
bars were laid down in reference to the matrimonial relief of dissolution of marriage. But today some of these bars
such as collusion and delay apply to all the matrimonial reliefs. Not merely this, some of the bars are applicable to
divorce by mutual consent and to dissolution of marriage on the basis of irretrievable breakdown of marriage also.

The conceptual justification for the bars is drawn from the equitable principle that he who seeks equity must come
with clean hands. In view of this, the principle lays down that only innocent persons should be allowed to knock at
the gate of justice. It is said that the purpose of divorce law should not be only to punish the guilty party but also to
do justice. The delinquent spouse should be punished only when the other spouse is innocent that is to say, in no
way contributory or party to the offence of the respondent whether directly or indirectly. The same principle is
expressed by saying that the one who seeks justice, if comes to the court with soiled or dirty hands, one should not
be allowed to harass and disturb the other party, as one has no justification to seek relief. It is asserted that it would
help in the reconciliation between the parties. The beauty of this principles is that if one of the parties is a sinner the
marriage may be dissolved but if both are sinners then they are condemned to continue to live in sin.

There has been a long drawn campaign in England and other countries to either do away with these bars or at least
modify them. The campaign succeeded partially, and in 1963 “collusion” was made a discretionary bar. With the
replacement of fault theory with the irretrievable breakdown of marriage, these bars were obviously abolished but
some new bars were introduced1.

In India when the Indian Divorce Act, 18692 was passed, the English law bars to matrimonial relief were introduced.
When the Parsi Marriage and Divorce Act was passed in 19361, again these bars were introduced in that statute.
England reformed its matrimonial law in 1950 and also reformed the bars to matrimonial relief2. When in India the
Special Marriage Act was passed in 19543, and the Hindu Marriage Act was passed in 19554, bars to matrimonial
relief were enacted and obviously the source of inspiration for the bars was the Matrimonial Causes Act, 1950.

Matrimonial Causes Act, 1950

Section 4 of the Act, which contains the bars, runs:

(1) On a petition for divorce it shall be the duty of the court to inquire so far as it reasonably can, into the facts alleged and
whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists
between the parties and to inquire into any countercharge which is made against the petitioner.
(2) If the court is satisfied on the evidence:

(a) where the case for the petition has been proved; and

(b) where the ground of the petition is adultery the petitioner has not in any manner been accessory to, or connived
at, or condoned, the adultery, or where the ground of the petition is cruelty, the petitioner has not in any manner
condoned the cruelty; and
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Chapter XI Bars to Matrimonial Reliefs

(c) the petition is not presented or prosecuted in collusion with the respondent or either of the respondents, the courts
shall pronounce a decree of divorce but if the court is not satisfied with respect to any of the aforesaid matters, it
shall dismiss the petition: Provided that the court shall not be bound to pronounce a decree of divorce and may
dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery or if, in opinion of
the court, the petitioner has been guilty:
(i) of unreasonable delay in presenting or prosecuting the petition, or

(ii) of cruelty towards the other party to the marriage, or

(iii) where the ground of the petition is adultery or cruelty of having without reasonable excuse wilfully separated
himself or herself from the other party before the adultery or cruelty complained of, or

(iv) where the ground of the petition is adultery or unsoundness of mind or desertion of such wilful neglect or
misconduct as has conduced to the adultery or unsoundness of mind or desertion.

Hindu Marriage Act, 1955

Section 23(1) of the Act, which contains the bars, runs:

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on
the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way
taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner
has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the
ground of the petition is cruelty the petitioners has not in any manner condoned the cruelty, and
(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or
undue influence, and

(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the
respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceedings, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

Special Marriage Act, 1954

Section 34(1) of the Act, which contains the bars, runs:

(1) In any proceeding under Chapter V or Chapter VI; whether defended or not, if the court is satisfied that,—

(a) any of the grounds for granting relief exists; and

(b) where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner
has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to
therein, or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty;
and
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Chapter XI Bars to Matrimonial Reliefs

(c) when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or
undue influence; and

(d) the petition is not presented or prosecuted in collusion with the respondent; and

(e) there has not been any unnecessary or improper delay in instituting the proceeding; and

(f) there is no other legal ground why the relief should not be granted;
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

Parsi Marriage and Divorce Act, 1936

Section 35 of the Act, which contains the bars, runs:

In any suit under sections 30, 31, 32, 32A or 34, whether defended or not, if the court be satisfied that any of the grounds
set forth in those sections for granting relief exists, that none of the grounds therein set forth for withholding relief exist and
that—
(a) the act or omission set forth in the plaint has not been condoned;

(b) the husband and wife are not colluding together;

(c) the plaintiff has not connived at or been accessory to the said act or an omission;
(d) save where a definite period of limitation is provided by this act there has been no unnecessary or improper delay
in instituting the suit; and

(e) there is no other legal ground why relief should not be granted;

then and in such case, but not otherwise, the court shall decree such relief accordingly.

Divorce Act, 1869

Section 12 of the Act, which contains the bars, runs:

Upon any such petition for the dissolution of a marriage, the court shall satisfy itself, so far as it reasonably can, not only as
to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going
through of the said form of marriage, or the adultery, or has condoned the same, and shall also enquire into any
countercharge which may be made against the petitioner.

Section 14, of the Act contains some other bars. It runs:

In case the court is satisfied on the evidence that the case of the petitioner has been proved,
and does not find that the petitioner has been in any manner accessory to or conniving at, the going through of the said
form of marriage, or the adultery of the other party to the marriage or has condoned the adultery complained of,
or that the petition is presented or prosecuted in collusion with either of the respondents,
the court shall pronounce a decree declaring such marriage to be dissolved 1[***]:
Provided that the court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage,
been guilty of adultery, or if the petitioner has in the opinion of the court, been guilty of unreasonable delay in presenting or
prosecuting such petition,
or of cruelty towards the other party to the marriage,
or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and
without reasonable excuse,
or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.
 Page 4 of 32
Chapter XI Bars to Matrimonial Reliefs

No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has
been resumed or continued.

Under the above statutes all the bars are absolute bars. In India the English law distinction between (a) absolute
bars and (b) discretionary bars has not been adopted.

The various bars under the statutes are:

A. Doctrine of strict proof.—This has been adopted in all the matrimonial statutes. It applies to all the four
matrimonial reliefs.
B. Taking advantage of one’s own wrong or disability.—This bar has been specifically enacted in the Hindu
Marriage Act, 1955. It has not been specifically enacted in other Indian matrimonial statutes, but since it is
the very basis of fault theory, the bar exists in all statutes. The Indian Divorce Act, 1869 lays down that if
the petitioner has conduced respondent’s adultery on account of his wilful neglect or misconduct, he would
not be entitled to divorce.
C. Accessory.—This bar applies only to the ground of adultery under the Hindu Marriage Act, 1955 thespecial
Marriage Act, 1954 and the Indian Divorce Act, 1869. Under the Parsi Marriage and Divorce Act, 1936 it is
a general bar.
D. Connivance.—Under the Parsi Marriage and Divorce Act, 1936, connivance is a general bar, while under
other three statutes it is a bar to the matrimonial reliefs on the ground of adultery.
E. Condonation.—Under the Hindu Marriage Act, 1955 andspecial Marriage Act, 1954 condonation is a bar to
matrimonial relief of divorce on the ground of adultery and cruelty, while under the Indian Divorce Act, 1869
it is a bar to the matrimonial relief of divorce on the ground of adultery only. Under the Parsi Marriage and
Divorce Act, 1936, it is a general bar applicable to all the matrimonial reliefs.
F. Collusion.—Originally under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954, collusion
was bar to all matrimonial reliefs and to all grounds of matrimonial relief. But the Marriage Laws
(Amendment) Act, 1976 has amended the law and collusion is not a bar to a petition for a declaration that a
marriage is null and void (i.e., to void marriages), but no analogous amendment has been made in the
Special Marriage Act, 1954. Under the Parsi Marriage and Divorce Act, 1936 it is bar to all matrimonial
reliefs. Under the Indian Divorce Act, 1869 it is bar to the matrimonial relief of divorce only.
It was made a discretionary bar by the Matrimonial Causes Act, 1963. The Nullity of Marriages Act, 1971
has abolished it is a bar to nullity cases, both void and voidable marriage1.
G. Improper delay.—It is a bar to all relief under the Hindu Marriage Act, 1955,Special Marriage Act,
1954,Parsi Marriage and Divorce Act, 1936, while under the Indian Divorce Act, 1869, it is a bar to the
matrimonial relief of divorce only.
H. Adultery, cruelty and desertion.—The Indian Divorce Act, 1869, lays down that the petitioner will not be
entitled to the decree of divorce, if he himself has been guilty of adultery, cruelty or desertion. This
provision does not exist under other Indian matrimonial statutes.
I. Other legal ground.—Under the Hindu Marriage Act, 1955, thespecial Marriage Act, 1954 and the Parsi
Marriage and Divorce Act, 1936, there is a residuary bar which lays down that there is no other legal
ground why relief should be refused. There is no such residuary bar under the Indian Divorce Act, 1869.

Doctrine of Strict Proof: Standard of Proof: Burden of Proof

From the very beginning the English matrimonial law has taken the view that the petitioner must prove the guilt of
the respondent beyond all reasonable doubts. Although the matrimonial proceedings are civil proceeding, yet, since
the divorce law was based on offence theory, i.e., respondent has been guilty of a matrimonial offence, the
standard of proof was imported from criminal law. In view of this evolution, whether a petition is defended or
undefended the quantum of proof was the same, i.e., beyond all reasonable doubts, and this doctrine of strict proof
has been extended to cases even where the defendant admits that he or she is guilty of the alleged matrimonial
offence. Thus in a matrimonial cause, under the strict English law rule, no decree dissolving a marriage can be
passed on the consent of the parties. In Preston-Jones v. Preston-Jones1, the House of Lord said:
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The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not
be set aside lightly or without strict inquiry. The terms of the statute recognize this plainly and I think it would be quite out of
keeping with the anxious nature of its provisions to hold that the court might be satisfied, in respect of a ground for
dissolution with something less than proof beyond reasonable doubt.

In Sachindranath Chatterjee v. Nilima Chatterjee2, Mukerji, J., said that an action for divorce (or an action in any
other matrimonial cause) a civil proceeding without doubt, becomes, in a trice, criminal proceeding, all because of
the application of yardstick of proof beyond all reasonable doubt which has in fact being the standard of proof in a
criminal case from the very beginning. The reason of this is, the learned judge said, “to send an accused man to the
gallows or to the jail without his guilt being proved beyond reasonable doubt would be as much a grave public
mischief as to dissolve the tie of marriage, say, on the ground of adultery, without the matrimonial offence proved
beyond reasonable doubts.

Under the Indian Divorce Act, 1869 some courts have said that these proceedings are in the nature of criminal
proceedings and cannot be compromised like civil proceedings3. Earnest John White v. Kathleen Olive White4, is a
case under the Indian Divorce Act, 1869 wherein a husband sought divorce on the ground of wife’s adultery. The
evidence before the Court was that the wife went to Patna and stayed there with a man under the assumed name
as Mr. and Mrs. Charles Chaplian at Central Hotel, Patna between July 25, 1950 and July 29, 1950. It was shown
that they lived in the same room and the conduct of the wife indicated a guilty inclination, and so far as her conduct
was concerned it was consistent with her guilt. The High Court drew the inference of adultery. However, on appeal,
the Supreme Court held that the wife’s guilt was not proved beyond all reasonable doubts. The proof beyond
reasonable doubt means such proof as precludes every reasonable hypothesis except that which tends to support
it. It need not reach certainty, but must carry a high decree of probability. Evidence of opportunities is not enough.

In early cases under Hindu law, the court expressed the same view. In Bipinchandra v. Prabhawati1, a case of
desertion, the Supreme Court said that offence of desertion, like any other matrimonial offence, must be established
beyond all reasonable doubts. In Lachman Utamchand Kirpalani v. Meena alias Mota2, Subba Rao, J., (as he then
was) said that the offence of desertion must be proved beyond all reasonable doubts and as a rule of prudence the
evidence of the petitioner must be corroborated. In short, the learned judge added the proof required in a
matrimonial case is to be equated to that in criminal case. The Supreme Court said that heavy burden lies upon the
petitioner who seeks relief to establish the ground beyond all reasonable doubts. Thus before N.G. Dastane v. S.
Dastane3, the following came to be established as the two propositions:
(i) whenever a petition is filed in any matrimonial cause, the guilt or offence or fault of the respondent must be
proved beyond all reasonable doubt, and
(ii) burden of proof lies upon the petitioner to establish the guilt of the respondent as well as his own
innocence.

Till the decision of the Supreme Court, in N.G. Dastane v. S. Dastane3, the Indian Courts4 continued to adhere to
both the above propositions. Even in undefended cases, the burden is on the petitioner to establish the guilt of the
respondent beyond reasonable doubt. In Kaushaliya v. Lal Chand5, a restitution of conjugal right petition, the
Rajasthan High Court said that the onus of proof was on the petitioner, and the petition could not succeed merely
because the respondent had not been able to establish her defence. It means that where the statements in the
petition were denied by the respondent, decree for restitution of conjugal rights could not be passed merely on the
strength of the statement in the petition in the absence of any other evidence. In Maganlal Budhaiabhai Patel v. Bai
Dahi1, the Gujarat High Court said that evidence of adultery whether direct or circumstantial must be necessarily of
such a character as would lead to reasonable man to conclude that no other inference than of misconduct could be
drawn from the same and a mere probability that adultery might have been committed is not enough.

That guilt of the respondent must be proved beyond all reasonable doubts is no longer the correct proposition.
Chandrachud, J., in a very well considered judgment in N.G. Dastane v. S. Dastane2, said that the respondent’s
guilt might be established on a balance of probabilities. The learned judge said that the belief regarding the
existence of a fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities
concerning a fact-situation will act on the supposition that the fact exists, and on weighing the various probabilities
he finds that the preponderance is in favour of the existence of the particular fact, he would grant relief. As a
prudent man, the court applies this test for finding whether a fact in issue can be said to be proved. The first step
this process is to fix the probabilities, the second to weigh them though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable at the second. Proof beyond reasonable doubt is proof
by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal
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nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of
probabilities. It is wrong to import such considerations in trials of a purely civil nature. Neither section 10 which
enumerates the grounds on which a petition for judicial separation may be presented nor section 23 of the Hindu
Marriage Act, 1955, which governs the jurisdiction of the court to pass a decree in any proceeding under the Act
requires that the petitioner must prove his case beyond all reasonable doubts. Section 23 confers on the court the
power to pass a decree if it is “satisfied” on matters mentioned in clauses (a) to (e) of the section. Proceedings
under the Act being essentially of a civil nature, the word “satisfied” in section 23 must mean “satisfied on a
preponderance of probabilities” and not “satisfied beyond reasonable doubt”. Section 23 does not alter the standard
of proof in civil cases.

The principle has received a further extension in A. v. B.3, where the wife had alleged sexual perversity on the part
of the husband. After observing that matters of a civil nature are always decided on preponderance of probabilities
and the burden of proof in such a case is not to be discharged as conclusively as would be expected in a criminal
trial, D.C. Gheewala, J., stated that where in a petition for divorce by wife she has alleged sexual perversity on the
part of the husband, corroboration to such allegation could not be expected from any other independent source and
to seek corroboration regarding these matters, which belong to the sacred and secret precincts of marital life and
are known only to the spouses and cannot be ordinarily known to any other person, would amount to shutting one’s
eyes towards the facts of life and reality.

Now it may be taken to be the established view that the guilt of the respondent need not be proved beyond all
reasonable doubts, it may be established by balance of probabilities1. However, the burden of proof continues to be
on petitioner.

But no decree could be passed merely on the basis of admission of parties2, or because respondent has no
jurisdiction3.

Taking Advantage of One’s Own Wrong or Disability

This bar is a direct manifestation of equity’s maxim, “he who comes to equity must come with clean hands”. In every
petition, the petitioner must show that respondent’s guilt or fault is not related, directly, or indirectly to some wrong
or disability of the petitioner. If it is so, the petitioner would not be entitled to the matrimonial relief sought by him
even if he has been able to establish the fault of the respondent. On the other hand, if the wrong or disability has no
bearing on the fault or guilt of the respondent or has no connection with the relief sought by him or her. The
petitioner cannot be denied relief.

In early English matrimonial law as well as under the Indian Divorce Act, 1869, it has been laid down that if the
petitioner is also guilty of a matrimonial misconduct, he or she will not be entitled to relief. Thus section 14 of the
Indian Divorce Act, 1869 lays down that in case the court is satisfied on the evidence that the case of the petitioner
has been proved, the court shall pronounce a decree declaring such marriage to be dissolved, but the court is not
bound to pronounce such decree if it finds that during the marriage the petitioner is guilty of adultery, or cruelty or
desertion or has been guilty of such wilful neglect or misconduct towards the respondent as has conduced to the
adultery. This is the manifestation of the principle in the extreme that the petitioner should be an innocent party.
This virtually means that if both the parties are sinners, let them continue to live in the sin. Under the Indian Divorce
Act, 1869 these are envisaged as discretionary bars as is indicated by the words “the court shall not be bound to
pronounce such decree”.

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 do
not take the law of bars to that extreme. The mere fact that the petitioner himself is not free from blemish would not
disentitle him from the relief. The wrong or disability must be directly or indirectly connected with the fault of the
respondent. “Connivance” and “accessory” are specific manifestation of this doctrine. However, “wrong” or
“disability” need not be as grave or as connivance or being accessory. For instance, the following are the obvious
instances of the doctrine: If it is the petitioner from whom the respondent contracted the venereal disease, the
petitioner cannot get divorce or judicial separation on that ground. If a husband has been constantly cruel and
callous to his wife and on that account the wife withdrew from his society, the husband’s petition for restitution
cannot be granted. A petition for judicial separation on the ground of respondent’s adultery cannot be granted if it is
shown that it was petitioner’s wrong which contributed to respondent’s adultery. Similarly, a petition for divorce or
judicial separation on the basis of respondent’s insanity cannot succeed if it is shown that it was on account of
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cruelty, neglect, or ill-treatment of the petitioner that the respondent became insane. A petition for divorce or judicial
separation on the ground of respondent’s cruelty cannot be granted if respondent’s conduct or act provoked it.

If the “wrong” or “disability” of the petitioner has no connection or co-relation or has a remote connection or co-
relation with respondent’s guilt, the petitioner cannot be denied the relief. Thus, a husband cannot be allowed to
plead that wife’s refusal to live with him was the cause of his second marriage1, or that the wife entered into the
second marriage with him knowing that he was already a married person2. Similarly, husband’s petition for divorce
on the ground of wife’s adultery cannot be defeated on the plea that the denial of the sexual intercourse led her into
adultery3.

Some of the judges have quoted the following passage from Raydon in support of a somewhat rigid view that they
have taken:

The court, in exercising its discretion, ought to look at every aspect and circumstances of the case, including the
consequences which would ensure from the refusal of a decree and should have regard to: (1) the position, the interest of
the children of the marriage, (2) the interest of the party with whom the petitioner has committed adultery, with special
regard to their future marriage, (3) the question whether if the marriage be not dissolved, there is a prospect of
reconciliation between the spouses, (4) the interest of the petitioner, particularly as regards allowing him to remarry and live
respectably, (5) the interest of the community at large judged by maintaining a true balance between respect for the binding
sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a
union which has utterly broken down4.

Nain, J., of the Bombay High Court5, quoting this passage said that the Hindu Marriage (Amendment) Act, 1964
(which has introduced irretrievable breakdown of marriage as basis of divorce) has endeavoured to balance the
sanctity of marriage and social consideration of individual happiness of leading a respectable life. In this case the
wife obtained a decree of judicial separation on the ground of husband’s desertion and cruelty, since there was no
resumption of cohabitation for a period of more than two years, husband petitioned for divorce. The question before
the court was: would the husband, if granted divorce, not be taking advantage of his own wrong? The learned
Judge, in reference to section 23(1)(a) of the Hindu Marriage Act, 1955 said that the conduct subsequent to the
passing of the decree of judicial separation or restitution of conjugal rights alone would be material and not anterior
to it. This view was reaffirmed by Nathwani and Mukhi, J.J., in Jethabhai Ratanshi Lodaya v. Manabai Jethabhai
Lodaya1. After a review of authorities, Nathwani, J., said that after a decree for judicial separation is passed the
desertion terminates and there can be, therefore, no continuation of that matrimonial wrong of desertion after the
passing of the decree. Once a decree has been passed the matrimonial wrong or offence on which it was based
whether ‘desertion’ or ‘cruelty’ etc., exhausts itself. It would not be open to the parties to look back after the court
has pronounced its judgment and determined that one of the parties was guilty of a matrimonial offence on the
basis of which either a decree for judicial separation or a decree for restitution of conjugal right has been made. The
expression “it shall no longer be obligatory for the petitioner to cohabit with the respondent” in section 10(2) of the
Hindu Marriage Act, 1955 can, on a fair and correct interpretation, only mean that the petitioner having obtained an
order of separation from the court is protected from the overtures of the respondent and both parties are relieved of
the obligation to cohabit. By the change introduced by the Amendment Act of 1964 the conception of matrimonial
wrong or disability as furnishing bars to relief for divorce, although it continues to exist so far as section 13(1) of the
Hindu Marriage Act, 1955 is concerned, stands excluded so far as the ground in section 13(1A) are concerned. In
his separate judgment Mukhi, J., agreed with the view.

There is a long line of cases wherein the courts had to deal with doctrine of “taking advantage of one’s own wrong”
when the petition was filed on the basis of irretrievable breakdown of marriage (i.e., when a decree for restitution of
conjugal rights has not been complied with for one year or more or parties have not resumed cohabitation for one
year or more after a decree for judicial separation was passed). The Supreme Court’s judgment in Dharmendra
Kumar v. Usha2 and the Delhi High Court’s Full Bench judgment in Ram Kali v. Gopal Das3 should have been
treated as setting the controversy at rest, but the Delhi High Court’s Single Bench judgment in Santosh Kumari v.
Kewal Krishan Sabharwal4, has given a new twist to the issue. In this case a decree for restitution of conjugal rights
was passed in favour of wife and the husband admitted back the wife to matrimonial home with the sole objective of
defeating her maintenance case. Subsequently, after the lapse of one year from the date of the decree of
restitution, he filed a petition for divorce under section 13(1A)(ii) of the Hindu Marriage Act, 1955 R. Khanna, J.,
held that this was an extreme case where the husband, with a view to defeating the maintenance proceedings of
the wife, admitted her back to the matrimonial home for short duration, but did not consummate her conjugal rights.
In view of this, the judge held that since fault lies with the husband for non-fulfilment of the decree of restitution of
conjugal rights, and since wife was semi-literate, having no source of her own income, the provisions of section
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23(1) (a) were attracted, disentitling the husband to the grant of a decree of divorce. The indigence and illiteracy of
the wife seems to have overweighed with the Judge though it was evident from the facts that the marriage had
completely broken down. The socially just solution would have been to dissolve the marriage and grant her fair
maintenance and made it a charge on the husband’s property. The Judge himself has observed that where a
marriage has completely broken down, it would be a practical and realistic approach to dissolve it. Yet, he did not
grant relief in this case.

In Hargovind Soni v. Ramdulari1, the husband petitioned for divorce on the ground of wife’s adultery. The wife was
found to have committed adultery and a child was also born to her from the adulterous connection. It was also
found that the husband had taken a second wife. Thus, the husband had also committed a wrong. Granting a
decree for dissolution of marriage, Rampal Singh. J., rightly observed that in such a case maintaining of the status
quo was not the demand of justice, as it would further stagnate the life of the parties. The learned Judge added,
“Both needed relief from the religious and legal bondage and to prevent further bigotry, falsehood and fornication, it
would be just and proper to separate them.” This is a welcome decision.

In Meera Bai v. Rajinder Kumar Sobti2, the husband contracted a second marriage and he allowed an ex parte
decree for restitution of conjugal rights to be passed against him at the instance of his wife. He neither cared for his
first wife nor for the children from her. Nor did he pay any maintenance to them. The husband subsequently filed a
petition for dissolution of marriage against his first wife under section 13(1A)(ii) of the Hindu Marriage Act, 1955 (on
the ground that restitution decree had remained uncompiled for a period of one year). Rejecting the petition, the
court said it would amount to giving him an advantage of his own wrong.

A husband who drives away the wife from the matrimonial home cannot be granted a divorce as it would amount to
giving him an advantage of his own wrong3.

In Ashok Kumar Jain v Sumati Jain4, it was husband’s behaviour which had forced the wife to leave him. First, he
had concealed the fact that he was already married and even when divorce proceedings were pending he had put
in a matrimonial advertisement. Dismissal of husband’s petition is proper.

This clause has come for interpretation before the courts in cases of irretrievable breakdown of marriage ground of
divorce as contained in section 13(1A) of the Hindu Marriage Act, 1955. Relevant cases have been discussed in
Chapter IX “Irretrievable Breakdown of Marriage”. Reference may please be made to the same.

The term “disability” has not come for interpretation before the courts. It has sometimes been said that on the
husband’s petition for divorce on the ground of wife’s adultery, husband’s impotency may be pleaded as a disability
leading to wife’s adultery. Sometimes it has been said that the word “disability” denotes some physical incapacity,
such as minority, insanity, lunancy or idiocy. In that sense the term may include disability arising out of prohibited
relationships of marriage. But it is submitted that this is not the meaning of the term. If this meaning is given then
when two persons have married each other within prohibited degrees of relationship or are sapinda s to each other,
does it mean that neither of them can sue for nullity? On this interpretation, if two idiots get married none can get
any relief. It is submitted that any one of them can sue for a decree of nullity of marriage.

In section 6 of the Limitation Act, 1963, “disability” is used in the sense of a legal disqualification of a suitor. But that
is not the sense in which it is used under thehindu Marriage Act, 1955. Just as “wrong” has some culpability on the
part of the petitioner. Similarly, “disability” should have some sort of culpability on the part of the petitioner. It is also
asserted that a lunatic or person of unsound mind cannot sue for the matrimonial relief on account of his own
disability. It is submitted that, this is so because of specific provision otherwise, as has been seen in Chapter IV of
this work, “Nullity of Marriage”, under English law an impotent spouse can also sue for nullity.

The Marriage Laws (Amendment) Act, 1976 has excluded the application of this clause to petitions for annulment of
marriage on the ground of respondent’s insanity.

It may be emphasised that petitioner’s wrong or disability, must have some direct or indirect connection with
respondent’s guilt or fault. Thus a respondent cannot be allowed to plead that wife’s refusal to live with him was the
cause of his second marriage1, or the wife married him with the full knowledge that he was already a married
person2, or the denial of sexual intercourse by the petitioner led to his adultery3. In short, a petition in a matrimonial
cause can be granted only if the petitioner comes to the court with clean hands3. If a spouse files a petition of
conjugal rights, he cannot simultaneously make allegation of adultery against the other spouse. Every petition must
be sincere and bona fide and should not be filed with some ulterior motive4. Where a husband’s withdrawal from the
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society of wife-petitioner was found to be without reasonable cause, the question of application of this clause did
not arise1.

Accessory
Being an accessory to the guilt of the respondent is a specific manifestation of the equity’s maxim: he who comes to
equity must come with clean hands.

“Accessory” is a bar only when petition is filed on the grounds of respondent’s adultery under the Hindu Marriage
Act, 19552, the Special Marriage Act, 19543 and the Indian Divorce Act, 18694. Under the Parsi Marriage and
Divorce Act, 1936, it is a general bar: “in any suit for any matrimonial cause the plaintiff has to show that he has not
connived at or been accessory to the said act or omission”, constituting the ground for matrimonial relief5.

Accessory is a term of criminal law. It implies an active participation in the crime of the respondent. A person may
be accessory before the commission of the crime or after the commission of crime. He may also be an accessory at
the time of the commission of crime (in such a case he is called an accomplice). For instance, X may be an
accessory in the murder of A by B in the following situations: B goes to X and says that he wants to kill A, could he
lend his pistol, and if X lends his pistol and B shoots A with it, X is an accessory before the fact. B stabs A while X
holds him, X is an accomplice. B kills A and goes to X for the disposal of the dead body of A and if X helps him in
the disposal, X is an accessory after the fact. The same holds good in respect of adultery. (It may be noted that the
bar applies only to adultery). Thus, if a husband goes out and bring X for having intercourse with his wife, or if he
keeps a watch while his wife is committing adultery, or if his wife goes to a place to commit adultery and he acts as
an escort to bring her back, he is an accessory. In being an accessory there is a knowing active participation in the
offence by the petitioner, and if such a participation is established, he cannot get a decree of judicial separation or
divorce, as the case may be.

In sum, it means an act which directly aids or abets or commands or procures respondent’s adultery. A reckless act
of the petitioner conducive of respondent’s adultery amounts to being accessor6. If the petitioner employs an agent
for the purpose the act of the agent too would amount to petitioner’s being accessory7. The English decision in
Lankestar v. Lankestar8, is very instructive. Husband domiciled in England actively helped his wife to obtain a
divorce from a court of South Dakota. After the decree of divorce, wife remarried. Thereafter the husband, on
knowing that the Dakotan divorce decree was invalid filed a divorce petition in an English court on the ground of
wife’s adultery (living with a man with whom marriage was void amounted to living in adultery). Rejecting husband’s
petition the Court held that the husband had connived at and been accessory to his wife’s adultery, and therefore
was not entitled to the relief. It was, in any case, a conduct which conduced wife’s adultery and on that count also
the husband was not entitled to the relief.

Connivance
Like accessory, connivance is also based on the equity’s maxim: He who comes to equity must come with clean
hands. It is also said to be based on the maxim, volenti non fit injuria. Originally, it was a concept of ecclesiastical
law which laid down that if a petitioner had connived at the adultery of the respondent, he could not be granted the
matrimonial relief. From there the principle was adopted in the English matrimonial law and from English
matrimonial law we have adopted in our matrimonial statutes. England has abolished this bar.

Connivance is a bar to the matrimonial relief on the ground of adultery under the Indian Divorce Act, 18691, Hindu
Marriage Act, 19552 and Special Marriage Act, 19543, while it has been enacted as a general bar under the Parsi
Marriage and Divorce Act, 19364.

The word “connivance” has been derived from “connive” which means “to wink at”. In the words Lord Meeriman, J.5:

It is of the essence of connivance that it precedes the event, and, generally speaking, the material event is the inceptional
of the adultery and not its repetition; though the facts may be such that connivance at the continuance of an adulterous
association shows that the spouse must be taken to have connived at it from the first.
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“Accessory” and “connivance” are of the same quality. The distinction between the two is that in the former there is
an active participation by the petitioner in the guilt of the respondent, while in the latter there is no such
participation. In ”connivance” there is corrupt intention but not active corruption. To constitute connivance, consent,
express or implied, is necessary. If the petitioner expressly consents, the corrupt intention is there. For instance, if
the respondent makes a proposal, expressly or by implication, that she would like to make money by illicit
intercourse and the petitioner agrees with the proposal, he is guilty of connivance, though actively he had done
nothing. Take another example: wife invites a friend in the house for dinner and the guest indulges in undue
familiarities with her, and sensing what is to follow, the husband withdraws from the place to provide opportunity to
the wife and the guest, it would amount to connivance. In the former illustration, there is anticipatory willing consent,
while in the latter it is culpable acquiescence on the part of the husband. In short, when a spouse by voluntary
deliberate conduct encourages the other spouse to commit a matrimonial offence, it amounts to connivance6.

In its essence, connivance precedes the act. Once consent is established for the first act, it is no defence that he
did not consent to its repetition. But probably it does not mean that if the petitioner has connived at adultery with
one person, the respondent may go ahead with the act with all and sundry. Once connivance is established as a
fact, the court should investigate all the facts and surrounding circumstances including the time lag between the
various acts and come to the conclusion whether or not the connivance at the first act had spent its force before the
subsequent act or acts were committed. However, mere inattention, negligence, folly, dullness or apprehension or
imprudence does not amount to connivance1. But if the petitioner over-steps and deliberately fosters and
encourages a situation which results in the commission of adultery, he would not be allowed to say that his motive
was implied2. In some cases the wrong of the conniver may be much more than the offence of the guilty party3.
Once it is established that the petitioner was guilty of corrupt intention, or he promoted and encourage respondent’s
adultery, the only question left is whether the connivance has spent its force and thereafter the respondent
continued her adulterous connection independently of any motivation provided by the petitioner.

Connivance is express or culpable acquiescence by one spouse of the adultery of the other. It is tacit permission. It
is an act of mind and implies knowledge and acquiescence. It is said to mean voluntary blindness to some present
act or conduct going on before one’s eyes.

Thus connivance may be active or passive. Where one stimulates or tolerates a situation in which seeds of
adulterous association are sown and allows the seeds to germinate by his active encouragement or passive
tolerance and when they blossom into adultery one is to blame himself. His connivance will bar his petition for
divorce on the ground of his spouse’s adultery. Where a husband said to his wife and her friend, ”If you two want to
go to bed together, why the hell don’t you”. This amounted to connivance4. But if a spouse, unaware at the time of
other’s infidelity, afterward on discovering it leaves it unnoticed and unpunished, whatever may be the motive of his
or her silence, even if it be base or sordid—of making profit out of his dishonour, he or she cannot be said to have
connived at the adultery of the other.

However, mere inattention, negligence and over-confidence in the virtues of his spouse do not amount to
connivance5.

Spying or employing a spy to find out the truth. Usually does not amount to connivance. But if a spouse over-
reaches his spying and deliberately fosters and encourages a situation which results in adultery by the other
spouse, he will not be allowed to plead that his motive was to obtain conclusive proof. In such a case he has gone
too far to encourage or foster his spouse’s adultery, and if it results in adultery, he himself is to be blamed. Here
culpable intention will be implied.

Manning v. Manning and Fellows v. Fellows1, Mudge v. Mudge2, and Douglas v. Douglas3, present fact situations
which are conducive to the understanding of the principle involved in connivance. Two couples Mr. and Mrs.
Manning and Mr. & Mrs. Fellows became friendly and decided to spend their holidays together in 1948. It so
happened that each husband was having familiarity with other’s wife but neither husband resented it. Rather they
allowed it to go that way. In July 1948, Mr. & Mrs. Manning began to suspect adultery between their respective
spouses. Mrs. Manning told her husband to break his association with Mrs. Fellows but Mr. Manning took no steps.
At the same time, Mr. Fellows continued to visit the home of Mrs. Manning. Mr. Manning, however, set up a
microphone in his sitting room with wires leading to his garage. On September 21, 1948 Mr. Manning over-heard
some conversation between his wife and Mr. Fellow and suspecting adultery, he went to the living room but found
nothing objectionable. On October 2, 1948 Mr. Manning told his wife that he would be away for the night, but, in
fact, he went to his garage. There he overheard the conversation between his wife and Mr. Fellows. Thereafter he
entered the room and found her having sex with Mr. Fellows. At no time upto that date Mr. & Mrs. Manning gave
any indication of their suspicion and they continued to have sex with their respective spouses. Mrs. Manning as well
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as Mrs. Fellows sought divorce on the ground of adultery of their spouses. The court dismissed the petition as the
court felt that the petitioners had allowed and encouraged certain situation, to arise which they knew or were likely
to know would lead to adultery. The court held that it was immaterial that they waited to have conclusive evidence.
In fact, the court held that they had connived at the adultery of their respective spouses. On the other hand, in
Mudge v. Mudge, the husband who suspected that his wife was having adultery with co-respondent watched them
through a ground floor bed room window while the act of adultery took place. The husband has also engaged the
services of a detective who also watched wife committing adultery with co-respondent. The wife denied adultery
and further averred that if she was guilty, then her husband had connived at her adultery and had been accessory
to it. The court held that husband’s action did not amount to connivance and granted him a decree of divorce. In
Douglas v. Douglas3, the husband was a licence-holder at a hotel where he worked at the bar and his wife in the
kitchen. In August, 1948 suspecting his wife’s adultery with co-respondent, he adjusted the speaking apparatus
from the bar to the kitchen for over-hearing his wife’s conversation with co-respondent. He also removed a bolt to
eliminate any hindrance to his access to kitchen. He also employed a spy who suggested to him that he should
pretend his absence from the hotel. He did so on February 11, 1949, and on that day the spy saw the wife
committing adultery with co-respondent. Thereafter husband sued his wife for divorce on the ground of her adultery.
She pleaded husband’s connivance in her defence. The Court of Appeal granted the decree of divorce and said
that it was well nigh impossible to establish adultery save by a course adopted by the husband. Here, the Court
said, husband was not seeking to encourage or promote wife’s adultery he was merely trying to find out the truth,
the opportunity was not created by him with any corrupt intention.

Collusion and Connivance.—The distinction between connivance and collusion is often not easy to make. In a
case where conduct of a spouse conduces the other to commit adultery it is collusion. Often there is “winking at” at
the inception of intimacy which subsequently matures into adultery. If there is a corrupt motive in tolerating adultery,
it is connivance but if conduct is such that adultery is the probable conclusion without any corrupt motive it would be
collusion1.

Spent-up Connivance.—“Once a connivance, always a connivance” is not the rule of matrimonial law. Whether
connivance has become a spent force is a question of fact and test is not whether subsequently there has been full
reconciliation between the spouses but the test is whether effective casual connection no longer exists between the
act of connivance and the subsequent act of adultery. When adultery is connived at, a stage may reach when it
ceases to be effective. At some stage it would stand spent up. If thereafter the respondent continues her adulterous
connection, the petitioner would be entitled to relief. In Godfrey v. Godfrey2, the House of Lords observed that
where the conniver is contrite over his or her behaviour and does everything to repair the damage and the stimulus
of connivance had lost its force before the adultery was committed, then connivance ceases to be a bar to
matrimonial relief. Thus once connivance is not always connivance. Once it is established that there was
connivance, the court would investigate all circumstances including the lapse of time between the connived adultery
and subsequent adultery of the spouse and decide whether or not connivance has spent its force by the time
subsequent adultery was committed. In Gorst v. Gorst3, the parties were married in 1945 and marriage began with
great strain on account of husband’s inability to consummate the marriage. Subsequently, the marriage was
consummated and a child was born in June, 1949. Thereafter the husband told his wife that he had no desire to
have sex with her but if he would have sex with another woman his disability with her might be cured. Eventually
wife reluctantly consented. In March 1959 husband falsely told his wife that he had given up sex relations with the
other woman and thereafter spouses resumed sexual intercourse. But the husband carried on with the other
woman. In October, 1960 husband told the truth to his wife and they separated. The wife sued for divorce on the
ground of husband’s adultery. The husband pleaded connivance on the part of the wife. The court held that wife’s
original reluctant consent amounted to connivance but wife’s connivance had spent itself in March 1959, when
parties resumed cohabitation on the husband telling his wife that he had ceased to have sex relations with the other
woman.

In Richmond v. Richmond1, Mr. and Mrs. R went on a caravan-holiday in August 1950 with one Mr. & Mrs. B. Mr. R
committed adultery with Mrs. B and Mr. B committed adultery with Mrs. R. They knew each other’s adultery. On
return from the holiday Mrs. R gave up her adulterious connection with Mr. B. In June 1951, Mrs. B gave birth to a
child to which Mr. R admitted paternity. On November 15, 1951, Mr. R left the matrimonial home and went to live
with Mrs. B, and since then he ceased to have any relations with his wife and even did not pay any money for her
maintenance. The wife sued for maintenance. The Court of Appeal said that Mr. R’s adultery was connived at by his
wife but the husband’s conduct in leaving the wife and failing to pay her maintenance was not the logical
consequence of wife’s connivance at his adultery and, in fact her own adultery was connived at by her husband. In
view of this court granted her maintenance on the ground of husband’s desertion and wilful neglect. Woodbury v.
Woodbury2, is also an instructive case. The husband was having adulterous connection with his child’s governess.
When in 1940, the wife came to know of it she prayed to her husband to desist from it, but he flatly refused. As a
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consequence the wife suffered a great nervous strain so much so that she became a neurotic and was unaware of
her actions. In this mental state she wrote a letter to the child’s governess that “please go ahead, if you wish as a
friend and lover so long as he refrained from taking the child to her”. Shortly thereafter she was admitted to the
hospital. While she was in the hospital the husband, against her wishes took the child to the governess. All along he
continued to have adulterous connection with her. After her discharge from the hospital, the wife recovered the child
and tried to have reconciliation with her husband, but the latter continued to have adulterous relationship with the
governess. Thereupon she sued him for divorce on the ground of his adultery with the mistress. Husband pleaded
connivance. The Court of Appeal granted her the decree. The court observed that, when considered in isolation,
wife’s letter might be construed as a licence to her husband and mistress to continue to have the adulterous
connection, but look at the backdrop of all the circumstances of the case and considering wife’s neurotic conditions,
the wife at no time willingly consented to husband’s adultery. Rather she greatly desired her husband to cease to
live in adultery and did her best to save the marriage. Thus in no way at any time was she guilty of corrupt intention
of encouraging her husband to continue his adulterous course. The court further observed that connivance on the
part of the wife had to be looked at in the background of totality of circumstances, including wife’s frame of mind at
the material time, and nowhere it could be inferred that she convinced at or acquiesced in, the adultery of her
husband.

We do not have any Indian case on the subject.

Condonation
Condonation as a bar to matrimonial relief applies only to the matrimonial offences of adultery and cruelty under the
Hindu Marriage Act, 1955,3 and the Special Marriage Act, 19541and only to the matrimonial offence, of adultery
under the Indian Divorce Act, 18692. The Parsi Marriage and Divorce Act, 19363 makes it a general bar applicable
to all matrimonial relief.

In the words of Chandrachud, J., “The doctrine of condonation was established by the old ecclesiastical courts in
Great Britain and was adopted by the English courts from the cannon law. ‘Condonation’ is a technical word which
means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not
‘forgiveness’ as commonly understood. In England condoned adultery could not be revived because of the express
provision contained in section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into section
42(3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of
cruelty, the word ‘condonation’ must receive the meaning which it has borne for centuries in the world of law.”
‘Condonation’ under section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no
further matrimonial offence shall be committed. Condonation, too, has not been defined in the statute. The Indian
Divorce Act, 1869 lays down that “no adultery shall be deemed to have been condoned within the meaning of this
Act unless where conjugal cohabitation has been resumed or continued”4. In Inglis v. Inglis5, Simon, P., observed:

Condonation is the reinstatement of a spouse who has committed a matrimonial offence in his or her former matrimonial
position in the knowledge of all the material facts of that offence with the intention of remitting it, that is to say, with the
intention of not enforcing the rights which accrue to the wronged spouse in consequence of the offence.

Condonation connotes resumption of marital obligations even after the knowledge of infidelity. Resumption without
knowledge cannot amount to condonation.6

The following passages from the judgment of Chandrachud, J., in N.G. Dastane v. S. Dastane7, are very instructive
on the meaning of condonation:

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 series 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.

His Lordship, elaborating further, observed:

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But condonation of 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 often said that condonation is “blotting out” or “erasing out” the matrimonial offence, so as to restore the
offending spouse to the same position as he or she occupied before the offence was committed. Although the
expression “blotting out” and “erasing out” figuratively portray the situation correctly, literally speaking, no offence
can ever be blotted out or erased out. It has been said in English and Indian cases that condonation essentially
implies two things1:

(a) forgiveness of the offence after one knows all the material fact, and
(b) Reinstatement of the guilty spouse to his or her original place.

Thus, mere forgiveness is no condonation. To be condonation the guilty spouse must be completely restored to the
former statutes. In short, cohabitation should be fully restored after one has forgiven the guilty party2. In essence
condonation is reconciliation and it does not take place unless and until mutual trust and confidence are restored. It
means spousal relationship should be restored by mutual consent to a settled rhythm in which past offence does
not rank and embitter the present life3.

Forgiveness after knowledge of all material facts.—No forgiveness is valid unless it is given after full knowledge
of all material facts regarding the matrimonial offence to be condoned. In other words, forgiveness to be valid can
take place only when the offended spouse has full knowledge of all material facts and circumstances of the
matrimonial offence, the condonation of which is sought. In forgiveness and condonation mutuality is essential. In
Ford v. Ford1, marriage took place in 1955 and it appears that till 1964 no tensions appeared in the material life,
despite the fact that husband was epileptic and had a crippled arm and leg. In 1964, for health reasons, husband
reduced the frequencies of the sexual intercourse and by 1965 marital intercourse ceased. In 1965 wife developed
intimacy with another man and got a child from him. The husband forgave his wife and accepted the child as the
child of the family. But wife did not consent to the proposal. In 1968 on discovering a packet of contraceptives in
wife’s handbag, the husband ceased to pay her any maintenance. Thereupon, the wife ceased to perform domestic
services for the husband. In 1968 the husband petitioned for divorce on the ground of wife’s adultery. In reply, wife
pleaded condonation. It was held that there was no condonation since the husband’s offer of condonation was
rejected by the wife and there was no resumption of cohabitation including marital intercourse after the discovery of
wife’s adultery.

If continuance of cohabitation is on account of the fact that the petitioner was not aware of respondent’s adultery, it
would not amount to condonation2. In Saptmi v. Jagadish Chandra3, the wife petitioned for judicial separation on the
ground of husband’s cruelty, and the husband’s main defence was condonation. The spouses lived together and
slept in the same bedroom till August, 1963 when the husband started treating the wife with cruelty. There were
children of the marriage, and for their sake the wife continued to live in the matrimonial home leaving it off and on.
When she found the cruelty and harassment by the husband unbearable she left the matrimonial home but again
came back for the sake of children. It was established that after August, 1963, the parties did not have any marital
intercourse. Even though most of the time wife lived in the matrimonial home, spousal relationship had ceased to
exist. The court held that merely because the wife continued to live in the same matrimonial home, it did not mean
that parties were cohabiting after the cruelty of the husband. There was, thus, no condonation of husband’s cruelty
by the wife4.

In sum, condonation to be valid must be made after full knowledge of all material facts. This is well illustrated by the
English decision in Burch v. Burch5, where marriage took place in 1938 and a daughter was born in 1943. In
January, 1945, the husband who was in Army returned to his unit and sailed to Burma. In February wife became
aware of her pregnancy and informed her husband. In March, 1945 she informed her husband that she had
associated herself with an U.S. soldier. On hearing this husband was distressed as he apprehended that taking
advantage of his wife’s pregnancy, the U.S. soldier might induce his wife to have sex with him. Wife gave birth to a
son in October, 1945. In February, 1946, the husband returned home and resumed cohabitation with his wife. But
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wife’s letter of March, 1945 continued to disturb him and rankle him and he started hinting that the son born to her
was not his child. However, parties continued to have marital intercourses till 1952 and continued to live together till
1956 when wife found that her husband has established an association with another woman. With a view to save
the marriage from breaking up, she confessed that she had an isolated act of adultery with a Canadian airman. In
August, 1956, the husband left the matrimonial home and sued the wife for divorce on the ground of her adultery.
Wife pleaded condonation. Wife’s plea of condonation was rejected as the Court found that before her confession of
the act of adultery with a Canadian airman, the husband was not aware of it and that the circumstances were not so
unambiguous that the husband had taken back the wife regardless of her adultery. Sachs, J., observed:

It seems to me that a conclusion based on intention, delusion, or any other method, than reasonable deduction from
ascertained facts, does not constitute knowledge. Ingrained suspicion does not become knowledge merely because, the
man who holds it becomes convinced of its truth without proper supporting evidence.

Where there is genuine belief that offence of adultery has been committed and if it is followed by forgiveness and
return of cohabitation, it would amount to condonation even if there is no full knowledge of all circumstances of the
offence. However mere belief would not amount to knowledge.

Continuance or resumption of marital intercourse.—Resumption or continuance of marital intercourse after the

full knowledge of respondent’s guilt is condonation. In Sadan Singh v. Reshma,1 wife had been alleging that her
husband had been having sex relationship with his sister-in-law and yet continued to have marital intercourse with
her husband. It was held that it amounted to condonation. In N.G. Dastane v. S. Dastane2 (facts of the case have
been stated earlier under the head “cruelty”), the husband’s allegations of gross acts of cruelty on the part of the
wife were established, but the husband continued to have marital intercourse with her and even a daughter was
born to the wife. The Nohiri Supreme Court held that this amounted to condonation3. Earlier also in Chandra Mohini
Srivastava v. Avinash Prasad Srivastava,4 the Supreme Court took the view that resumption of cohabitation with the
full knowledge of respondent’s adultery amounts to condonation. Ordinarily, when allegation is of cruelty,
continuation of cohabitation or marital intercourse is obviously with the full knowledge of the guilt of the respondent.
But in our social backdrop, sometime the petitioner has no alternative but to put up with and continue to tolerate the
respondent’s offence and continue to have cohabitation, because she or he has no alternative; may be wife has no
place to go. May be consideration of children, prestige of the family, or the family background impels him or her to
continue to remain in matrimonial home and cohabits with the respondent. It is submitted that this should not
amount to condonation. In Rita v. Brij Kishore,1 H.L. Jain, J., observed:

Continued cohabitation is no evidence of condonation that is of forgetting and forgiving. A continued cohabitation inspite of
cruel treatment is not unknown and many a women allow themselves to be subjected to this humiliation much against their
will and sometimes in the hope of improvement and prefer silence to exposure in order to avoid likely distress to the parents
and acquaintances.

In this case, in the hope that the husband will improve, the wife endured the cruel treatment of the husband for
about one and a half year. The court held that this did not amount to condonation. It is submitted that this is the right
approach. The same was more or less the position in N.G. Dastane v. S. Dastane,2 but since (probably) the
petitioner was a husband the court came to the conclusion that continued cohabitation amounted to condonation.

Similarly in Mamta Namdeo v. Ghanshyam Bihari Namdeo,3 wife was surely guilty of cruelty but the birth of their
fourth child after filing divorce petition would indicate condonation.

In Henderson v. Henderson,4 the House of Lords observed that it would be repugnant to decency to allow a
husband to say that he had sexual intercourse with the wife and yet to assert that he did not forgive her. He cannot
be allowed to reprobate and approbate at the same time5. It would be conclusive evidence of condonation, as not to
hold so would cause extreme prejudice to wife in case she conceives6. The most authoritative statement is found in
N.G. Dastane v. S. Dastane.2 Chandrachud, J., said:

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. Such stray acts may bear more than one
explanation. 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. There is then no scope for imagining that the conception of the child could be
the result of single act of sexual intercourse and that such an act could be a stark animal act of sexual intercourse
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unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just
in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in
marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore,
evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that
the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there
may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into position
previously occupied in the home. But intercourse in circumstances as obtain would raise a strong inference of condonation
with its dual requirement, forgiveness and restoration. 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.

Casual Resumption of cohabitation.—Case of Ambercomble v. Ambercomble1, presents an interesting fact

situation. On account of husband’s persistent cruelly the wife had obtained a separation order. In 1943 the husband
wrote to her a letter with a view to effecting reconciliation. The wife also wrote to him affectionate letters. Ultimately
with a view to effecting reconciliation, parties met together at Preston and then at Manchester. On both occasions
they had sex but the parties did not spend the night together. Subsequently they spent a night together at a friend’s
house and then spent a weekend together. However, desired reconciliation did not come about and wife sued for
divorce. Husband pleaded condonation. Wife asserted that she took her husband “on trial”. The Court held that it
amounted to condonation. In Beguley v. Beguley2, the wife left the husband on account of his cruelty and presented
a petition for divorce. At husband’s initiative a reconciliation meeting took place between them. At a second
reconciliation meeting wife voluntarily had sexual intercourse with her husband. But reconciliation did not come
about. Wife proceeded with her petition and husband pleaded condonation. The Court held that act of sexual
intercourse by the wife amounted to condonation3.

Resumption or continuation of sexual intercourse must be with a view to resuming cohabitation. If one party agrees
to sexual intercourse with a view to reconciliation, but necessary reconciliation does not come about because the
offending spouse is not sincere, the resumption of intercourse will not amount to condonation4.

If parties have resumed cohabitation, though there is no evidence that sexual intercourse has also been resumed, it
will nonetheless amount to condonation. This is more true in the context of Hindu way of life. Mukherji, J., very
pertinently observed that there are married persons who have mastered their passions instead of being mastered
by them, and maintain complete abstinence in their conjugal life. They regard each other as partners and co-
workers in life, dispensing with sexual act altogether. If such persons fall out and again resume cohabitation, that is
enough. No evidence of sexual intercourse is necessary unless it is shown that resumption of cohabitation was
partial1.

Reinstatement of the guilty party. —Mere forgiveness is no condonation. It is no more than a mental act. To be
condonation it must be followed by reinstatement2. In English case, Fearn v. Fearn3, the wife wrote a letter to her
husband confessing her adultery and pregnancy from the adulterer who was an armyman on active service. The
husband in reply forgave her and expressed the continuance of his affection for her. He also continued to send her
maintenance allowance. Thereafter, the husband received three anonymous letters informing him that his wife was
carrying on with several men. Thereupon the husband wrote to his wife that she had not revealed full facts to him
and proposed to get divorce. He also stopped her allowance. He then filed divorce proceedings. In his testimony,
the husband said that he had forgiven her and would have returned to her but for the anonymous letters. The trial
court considered it to amount to condonation. But, on appeal, the Court of Appeal held that since there was no
reinstatement of the wife it did not amount to condonation. The Court of Appeal observed that the husband at the
highest allowed his wife to remain in the position in which she was before her confession and since at no material
time resumption of cohabitation took place, there was no condonation. It was mere forgiveness in correspondence.

Condonation means complete forgiveness and restoration of status quo ante.

Revival of condoned offence.—In law, there is nothing like a conditional condonation, and condonation once
given cannot be revoked. However there is an implied condition in every condonation that the offending spouse will
behave in future, i.e., will not commit any other matrimonial offence or will not repeat the old offence or will not be
guilty of any matrimonial misconduct. In an old English case, the Court observed:

Condonation is forgiveness upon condition that no matrimonial offences are committed in the future and, therefore, if one
matrimonial offence is committed after condonation it is sufficient to revive matrimonial offences committed before it.
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In this case, the husband’s adultery, cruelty and desertion were condoned by the wife and the parties resumed
cohabitation. Later the husband resumed his former adulterous association. The condoned offences were revived
and the wife was granted divorce.

A condoned offence will review if the guilty party:

(a) repeats the condoned offence,

(b) commits some other matrimonial offence, or

(c) commits some marital misconduct.

The first case is simple. Last two cases are being illustrated. For instance if after adultery is condoned, the
offending spouse is found guilty of cruelty, the offended spouse can petition for divorce on the ground of adultery.
Similarly, after condonation, the offending spouse is found guilty of marital misconduct which does not constitute
any matrimonial offence, the condoned offence, nonetheless, revives and the offended spouse can petition on the
original ground. For example, adultery is condoned, but subsequently the offending spouse is found guilty of gross
or undue familiarities with the adulterer or with some other person, this will go to revive the condoned offence of
adultery1. Or, the offending spouse deserts the offended spouse after condonation, however, short the desertion
may be—it may not be for the entire statutory period—the condoned offence of cruelty will revive2.

Condonation implies a condition that there shall be in future a proper compliance with the matrimonial decencies
and duties and the offending spouse is admitted back to cohabitation on that condition alone. However, this should
not be taken to mean that condonation remains conditional for all times to come. It is likely taking the guilty party on
probation, but probationary period cannot be unlimited. In every case a point will be reached when revival of the
condoned offence cannot take place. For instance, after condonation of the offence of cruelty, parties lived together
for seven years. Thereafter the offending spouse slapped the offended spouse, it cannot be said that seven year
old offence of cruelty had revived3.

It is not necessary that the subsequent offence should be ejusdem generis with the original offence. Any marital
misconduct even though does not amount to matrimonial offence, would be enough4. Subsequent cruelty will revive
the condoned adultery5. Similarly, subsequent desertion would revive the condoned adultery6 and it need not for the
entire statutory period of desertion7.

Condoned cruelty may revive even if the spouse does not indulge in physical violence but gives threats of such a
nature as to satisfy the court that future cohabitation would be attended with danger to the innocent party. But
where a husband whose offence was condoned is shown to have been on occasions, selfish and inconsiderate and
boorish to his wife and passed some hurtful remarks on her, the Court held that condoned adultery did not revive8.
Similarly mere familiarities are not enough to revive condoned adultery9. Case of Roe v. Roe10, provides a good
illustration of revival of condoned adultery. The wife on condoning the adultery of the husband, returned to
matrimonial home (which she had left earlier on account of adultery of her husband). But soon thereafter, the
husband adopted a course of conduct towards her which was of callous indifferent. He refused to have marital
intercourse with her and stayed out late at nights without any explanation. The court held that conduct of the
husband amounted to constructive desertion and condoned adultery revived. Condoned adultery revives by
subsequent adultery1. It may also be revived by subsequent cruelty or desertion. Cruelty may be revived on
subsequent adultery or desertion2. Cruelty may be revived by wilful neglect3, or by false charge of sodomy4. In
Cundy v. Cundy5, an English court said that the following factors should be taken into account in weighing the
conduct short of a matrimonial offence which would revive the condoned offence:
(a) the circumstances of the adultery and the light they throw on the character of the wife;
(b) the time which has elapsed since the condoned adultery;
(c) the conduct and behaviour of the wife during the interval;
(d) the behaviour of the husband to the wife; and
(e) the seriousness of the conduct complained of and its circumstances including the manners and customs of
the grade of society to which the parties belong.

Court’s duty to investigate condonation.—Ordinarily, the party alleging condonation pleads it. But it may happen
that condonation is not pleaded. But it is a principle of matrimonial law that even when it is not specifically pleaded,
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it is the duty of the court to investigate condonation. In N.G. Dastane v. S. Dastane,6 condonation was not pleaded,
but the court investigated condonation and found it established. Chandrachud, J., observed:

Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no
evidence of condonation while the 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. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant
had condoned the cruelty.

Burden of Proof.—As in the case of other bars, it is for the petitioner to establish that there is no condonation.
Condonation can be proved by balance of probabilities. In the words of Lord Denning: “So far as the bars to divorce
are concerned, like connivance or condonation, petitioner need only show that on balance of probability he did not
connive”1. Ordinarily, no corroboration is required. However, in Tilley v. Tilley2, Lord Denning observed:

The allegation of such intercourse is so easy for wife to make and so difficult for a husband to refute that commonsense
requires that, in the ordinary way, the wife’s word upon it should not be accepted unless her evidence is corroborated in a
material particular. This is, however, a proposition of good sense and not a rule of law and if the judge is nevertheless quite
satisfied, on the wife’s evidence alone, that intercourse has taken place, he is entitled to act on it.

Condonation does not apply to any other matrimonial offence except adultery and cruelty.—Section 23(1)(b)
is explicit that condonation does not apply to any other matrimonial offence except adultery and cruelty. However,
occasionally some of our courts have thought that it is applicable to other grounds of not merely divorce but also of
nullity. In Som Dutt v. Raj Kumari3, it was argued that condonation applies to fraud, which is a ground for annulment
of marriage. The court did not say that condonation was not applicable to fraud, but gave a finding that in the
present case fraud was not condoned4. However, it may be recalled, condonation is general bar to all offences
under the Parsi law.

Collusion
At one time collusion was an absolute bar in English law. Came as it did from the ecclesiastical courts, it was laid
down that no petition in a matrimonial cause could succeed if there was collusion between the parties. It is again
based on equity’s maxim: One who comes to equity must come with clean hands. In this case of bars like
connivance only the petitioner’s hands are soiled. But in the case of collusion hands of both the spouses are dirty,
as they have colluded to obtain relief.

In England, the Matrimonial Causes Act, 1963 made it a discretionary bar. The Divorce Reforms Act, 1969 has
abolished it.

Under all the Indian Matrimonial statutes with exception of the Dissolution of Muslim Marriage Act, 1939, collusion is
a bar to matrimonial relief. The Marriage Laws (Amendment) Act, 1976 has removed the bar of collusion from the
nullity of marriage where marriage is void under the Hindu Marriage Act, 1955. But the same has not been done in
respect of it under thespecial Marriage Act, 1954. Collusion looms large in all other matrimonial statutes.

Section 20(1) of the Hindu Marriage Act, 1955 and section 32(1) of thespecial Marriage Act, 1954 lay down that
every petition will state that “there is no collusion between the petitioner and the other party to the marriage”.
Similarly, section 47 of the Indian Divorce Act, 1869 lays down that every petition should “state that there is not any
collusion or connivance between the petitioner and the other party to the marriage”. There is no such provision in
the Parsi Marriage and Divorce Act, 1936 but collusion is made a bar to all matrimonial reliefs.

Hindu Marriage Act, 1955.—Section 23(1)(c) of the Act contains the bar by laying down that in any proceeding
under the Act the petition will be granted only if the court is satisfied that—
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the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the
respondent.

Special Marriage Act, 1954.—Section 34(1)(d) of the Act lays down that the court will not grant a relief unless it is
satisfied that—

the petition is not presented or prosecuted in collusion with the respondent.

Indian Divorce Act, 1869.—Section 13 of the Act lays down that the court will not grant a relief if it finds—

that the petition is presented or prosecuted in collusion with either of the respondents.

The section is in the context of respondent’s adultery, where adulterer has to be made co-respondents.

Parsi Marriage and Divorce Act, 1936.—Section 35(b) of the Act, lays down that no decree will be passed in any
suit under sections 30, 31, 32, 32A or 34, whether defended or not, unless the court be satisfied that—

the husband and wife are not colluding together.

Collusion: Meaning.—Collusion may be defined as an agreement, arrangement or understanding, express or

implied, between the parties or their agents whereby matrimonial relief is designed to be obtained, where in fact no
ground or sufficient ground exists, by deceiving the court by misrepresentation, exaggeration or suppression of
facts or by cooking up entirely false evidence.

In Gosting v. Gosting1, the court said:

Collusion is an agreement or bargain between the parties to a suit where the initiation of the suit is procured or its conduct
provided for. This definition was approved in many cases2.

In Butter v. Butter3, the Court said:

The object of this doctrine is to compel the parties to come into the court with clean hands. It is to oblige them to bring
material facts before the court and to prevent them from blinding the eyes of the court in any respect, and to oblige them so
to act as to enable the court to be in a position to do justice between the parties.

In Christinamary Stella v. Dr. Vijay Siddharaj4, a case under the Indian Divorce Act, 1869, the Court observed:

Collusion means agreement or understanding between the parties whereby the court is made to believe in existence or
truth of the circumstances which to the knowledge of the parties are non-existent or false, and the existence or truth of
which is essential for the grant of relief claimed in the petition.

In Tirukappa v. Kamalamma1, a case under the Hindu Marriage Act, 1955, the court observed:

What section 23 purports to do is to impose certain condition in the interest of the society at large which is interested in
maintaining continuance of matrimonial relations and preventing as far as possible the disruption thereof, even at the
instance of the parties to the marriage themselves. This is the reason why the Act has provided against collusion between
the parties with a view to obtain a decree and has also disabled a party from taking advantage of his or her own wrong or
disability for a party from taking advantage of his or her own wrong or disability for the purpose of obtaining relief. The court
is directed to proceed to examine the circumstances in the light of section 23 even in the absence of the defendant because
the absence may be due to collusion or may assist the petitioner in taking advantage of his or her own wrong or disability.
All these considerations arise before any relief under the Act is granted to the petitioner.

In Joginder Singh v. Pushpa2, the question before the court was whether a consent decree for restitution of conjugal
rights could form a basis of divorce under section 13(1A)(ii) of the Hindu Marriage Act, 1955. The Court answered
the question in the affirmative and observed that a decree of divorce could be passed on the basis of a genuine
consent decree, that is, if it was not collusive consent decree intended to fabricate in advance a ground for divorce.
But in Hirakali v. Avasthy3, the consent decree which constituted the basis of a petition for divorce under section
13(1A)(i) of the Hindu Marriage Act, 1955 was held to be collusive decree. Collusion to be a bar to relief must be
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such as to subvert the course of justice. If parties in anticipation of divorce make arrangement regarding custody of
children, maintenance of spouse, settlement of spousal property, it does not amount to collusion. In Clarance v.
Raichael4(a case under Indian Divorce Act, 1869), the Court held that if the parties had placed all the facts before
the Court and did not withhold any evidence from it, the mere fact that the parties were willing to have the marriage
dissolved, did not amount to collusion. But such arrangements may be collusive when husband allows excessive
maintenance to wife so that she may agree for divorce. In each case it will be necessary to show that the purpose
of such an arrangement was not to subvert the court of justice. If it is so, the arrangement will be collusive,
otherwise not.

In A.B. Manual v. Libian Margaret Manual1 and Antoniswamy v. Anna Manickam2(both cases under the Indian
Divorce Act, 1869, the Court observed that since matrimonial proceedings lead to the change of status of the
parties and involve the interest of society as well as of individuals, the court must never act in purely formal sense in
finding that there is no collusion between the parties. Collusion should not be mere mechanical inference. The
doctrine of collusion is based on the principle that all those who seek relief from the matrimonial court should go
there with clean hands3. But mere delay does not amount to collusion4. In Edger Wesley v. Emity Violet5, a case
under the Indian Divorce Act, 1869, it was held that absence of express plea of non-collusion does not vitiate the
decree of divorce.

In Todd v. Todd6, in the fulfilment of a promise to his wife that he would provide her with a ground for divorce,
husband committed adultery. He also furnished full information of his adultery to his wife. The wife’s petition for
divorce was dismissed on the ground of collusion. Similarly, an agreement between the parties to withdraw certain
material evidence from the court, amounts to collusion7.

An excellent illustration of collusion is found in English law in what are known as, Hotel Bill Cases. What happened
in these cases was: a husband took some woman to a hotel, registered him and the woman in the hotel as Mr. and
Mrs... took a room in the hotel, stayed there for the night. Next day he left the hotel along with the woman making
payment of the hotel bill in the name of Mr. and Mrs.... Subsequently, the wife filed a petition for divorce on the
ground of husband’s adultery. In evidence she filed a copy of hotel register and a copy of the hotel bill. The wife
also produced some oral evidence of the hotel bearer and the like to testify that her husband and the other woman
spent the night together in the same room. In such cases husband either did not put up appearance or did not rebut
wife’s evidence. Thus divorce was obtained. These were the cases of collusion. A Full Bench of the Punjab High
Court, by majority, said that a consent decree for restitution can form a basis of divorce under section 13(1A),
provided it was a genuine consent decree and was not collusive consent decree intended to fabricate in advance a
ground of divorce8. It is only in this sense that collusion may be pleaded as a bar to a petition for divorce by mutual
consent. The Supreme Court has taken the same view9. However, in some cases coming under section 13B of the
Hindu Marriage Act, 1955, the courts have repeatedly said that there should be no collusion between the parties.
(Please see Chapter IX where these cases have been reviewed). This, it is submitted, is not correct. When parties
mutually agree to divorce each other, there is hardly any question of collusion between them.

Again collusion to amount to bar to relief must be such as to pervert or subvert the course of justice. Thus, when
parties in anticipation of divorce make arrangement in respect of custody of children, maintenance of the parties, or
of joint property, it does not amount to collusion. In every case it will be necessary to show that purpose of such an
arrangement was not to pervert or subvert the course of justice then only it would not amount to collusion.

It is submitted that where parties have come to a conclusion that their marriage has failed, and while seeking
divorce by mutual consent they make arrangements for the custody, maintenance of children, for settlement of
property and other collateral matters, such arrangement cannot be called collusive.

Unnecessary or Improper Delay: Doctrine of want of Sincerity

In almost all civil matters a period of limitation is prescribed within which one must enforce his rights and pursue his
remedy. On the expiration of the period of limitation, remedy becomes time-barred. Matrimonial remedies are civil
remedies but no period of limitation is prescribed for them. However, equitable principle of laches applies: delay
defeats equity. In pursuing one’s matrimonial remedy one should not be guilty of unnecessary or improper delay.

Improper or unnecessary delay is a bar to all matrimonial reliefs under the Hindu Marriage Act, 19551, the Special
Marriage Act, 19542and the Parsi Marriage and Divorce Act, 19363. However, it is a bar only to the remedy of
dissolution of marriage under the Indian Divorce Act, 19694. The Dissolution of Muslim Marriage Act, 1939 does not
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lay down any bars, but there is nothing in the Act to prevent the court from applying the equitable principle of
laches.

It has been a discretionary bar under English law.

Hindu Marriage Act, 1955.—Section 23(1)(d) the Act lays down that in any proceedings under the Act the court will
grant relief only if it is satisfied that—

there has not been any unnecessary or improper delay in instituting the proceeding.

Special Marriage Act, 1954.—Section 34(1)(e) of the Act lays down that in any proceedings under the Act the
court will grant relief only if it is satisfied that—

there has not been any unnecessary or improper delay in instituting the proceeding.

Parsi Marriage and Divorce Act, 1936.—Section 35(d) lays down that in any suit under sections 30, 31, 32, 32A
or 34, the court will grant relief only if it is satisfied that—

(Save where a definite period of limitation is provided by this Act) there has been no unnecessary or improper delay in
instituting the suit.

Indian Divorce Act, 1869.—Section 14 of the Act lays down that in case the court is satisfied on the evidence that
the case of the petitioner has been proved... Provided that the court shall not be bound to pronounce such decree if
it finds that the petitioner has, in the opinion of the court, been guilty of unreasonable delay in presenting or
prosecuting such petition.

It should be noted that in the first three statutes the words are unnecessary” or “improper delay” and in the last
statute the words are “unreasonable delay”. It is submitted that in the interpretation of the clause it is not going to
make any difference.

Period of Limitation.—The Parsi Marriage and Divorce Act, 1936 specifically lays down that where a period of
limitation is laid in any provision to the Act that will prevail. Even under other statutes this is the position. Thus under
the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 a petition for annulment of the marriage on the
ground of pre-marriage pregnancy1, or a petition for annulment of marriage on the ground of consent being
obtained by force or fraud2, cannot be filed after the expiry of one year from the date of the marriage in the former
case and from the date of discovery of fraud or cessation of force in the latter case. Under the Parsi Marriage and
Divorce Act, 19363 clauses (b), (c) and (d) of section 32 lay down certain period of limitations on the ground of
insanity, pre-marriage pregnancy, or adultery, fornication, rape or unnatural offence, or grievous hurt, etc. (These
periods of limitation along with ground have been discussed in Chapter VII). No petition can be filed after the expiry
of the period of limitation.

Delay.—At one time the English law attitude to delay was somewhat rigid. But with the decision in Wickins v.
Wickins4, the attitude of courts became liberal. In this case, Swinfen Eady, M.R. observed:

Where Parliament has invested the court with a discretion which has to be exercised in an almost inexhaustible variety of
delicate and difficult circumstances, and where Parliament has not thought fit to define, or specify any cases, or classes of
cases fit for its application, this court ought not to limit or restrict that discretion by laying down rules within which alone the
discretion is to be exercised, or to place greater fetters upon the judge of the Divorce Division that the Legislature has
thought fit to impose.

According to the learned Master of Rolls, in deciding the cases on the basis of delay, the following factors should be
taken into consideration:
(a) The position and interest of any children of the marriage;
(b) The interest of the party with whom the petitioner has been guilty of misconduct, with special regard to the
prospect of their future marriage;
(c) The question whether, if the marriage is not dissolved, there is a prospect of reconciliation between
husband and wife; and
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(d) The interest of the petitioner and in particular the interest that the petitioner should be able to remarry and
live respectably.

The learned equity judge added that a balance should be maintained between the interest of the community at
large in the sanctity of marriage and the social consideration which make it contrary to public policy to preserve a
union which had broken down irretrievably.

The Indian courts’ record of interpretation of delay on the whole is in consonance with our social background. The
courts have taken the view that any delay which can be reasonably or properly explained will not bar an action,
whatever may be the period of delay. The test is: whether delay is culpable, or, is it in the nature of a wrong. In sum,
the conduct of the petitioner should be such as to stop him on her from the remedy. Delay may indicate that sense
of injury is wanting1. An unexplained delay, whatever be its duration, may be fatal to the petition2.

Hegde, C.J., and Jagat Singh, J., very pertinently observed that in considering whether there is unnecessary delay
or unreasonable delay in seeking the relief, the conditions of the society in which the parties live and traditions of
the families to which they belong cannot be ignored. The Hindu society looks with disfavour dissolution of marriage.
It is considered something sinful. It requires courage to face the public odium. This fact can be taken notice
judicially3. While dealing with the question of delay one should not be oblivious of the background and tradition of
Hindu society and the instinctive reluctance amongst the woman to come to the court and seek redressal of their
grievance against the husband4. By the large courts had proceeded on that basis5.

It is submitted that delay to bar a petition should not be unnecessary or improper under the Special Marriage Act,
1954, Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce Act, 1936, while under the Indian Divorce Act,
1869 it should not be unreasonable delay. It should be noted that under the former statute the delay should not be
unnecessary or improper. Courts have consistently adhered to this view, and they have not hampered the relief
merely on technicalities.

In Teja Singh Subedar Santa Singh v. Sarjit Kaur6, the wife had left the husband about seven years before the
presentation of the restitution petition by her husband. During this period the husband totally neglected her. He did
not provide any maintenance to her; nor did he communicate with her. The petition was filed after the wife had
obtained a maintenance order under section 488 of the Code of Criminal Procedure (old Code). It was held that
there had been unnecessary and improper delay in filing the petition1. Similarly, in Shanti Devi v. Ramesh Chandra
Roukar2, there was unexplained delay of ten years in filing the petition for restitution, the Court dismissed the
petition. In S. v. R.3, parties were married in 1948. Since then, they lived together till 1956 when the wife left the
husband as, according to her, she was at the end of her patience to put up with an impotent husband. In 1962 she
filed the petition for annulment of the marriage. The High Court said that any delay before the coming into force of
the Hindu Marriage Act, 1955 could not be taken into consideration, and as to the delay thereafter—about seven
years—the Court accepted the explanation of the wife which was that her parents, with whom she was living from
1956, being very conservative, stood in her way; they shuddered at the idea of their daughter approaching the court
for annulment of her marriage. They apprehended that in that event they would be shunned by the society. This
was typical Indian situation and, happily, the Court accepted this as a reasonable explanation of delay.

In Nirmo v. Nikka4, there was a delay of 11 years in filing a petition of divorce by wife. Wife’s explanation was that
she kept quiet all along and had no intention to go to the court but for her husband’s harassment which began soon
after she had inherited some property from her father. This was accepted as a reasonable explanation of delay.
Again, in Lalithama v. Kannan5, five years’ delay in presenting the petition for divorce by the wife was held to be
reasonably explained: she pleaded her helplessness on account of peculiar situation in which she was placed by
her father and her husband. In Jyotish Chandra v. Meera6, there was 21 months’ delay in presentation of the
petition. The wife’s explanation was that as her sister was to be married and settled, and divorce proceedings by
her would have created a scandal and would have stood in the way of her sister’s marriage. This was accepted as a
reasonable explanation. The high water-mark reached in Adelaide Mande Tobias v. William Albert Tobias7, where
the Court accepted wife’s explanation that she did not go to the court of law to obtain divorce as she had to bring up
two daughters and a son and she did not think it proper to obtain divorce till they were settled. For that purpose she
waited for 26 years.

In Puthalath Chathu v. Nambukkudi Jayasree1, the explanation of the wife that she was giving an opportunity to her
adulterous husband to mend his ways and restore married life was held to be satisfactory explanation of delay.

N.B. Rukmini v. P.M. Srinivasa2, is an interesting case on laches. Following certain English decisions3, a distinction
is sought to be made from the point of view of improper delay, between adultery and cruelty on the one side, and
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Chapter XI Bars to Matrimonial Reliefs

desertion on the other. Delay in the former cases may amount to acquiescence or condonation or even connivance,
but this cannot be so in the case of desertion. In desertion cases delay may indicate endurance and patience on the
part of the deserted spouse in the hope that the other party may return to the matrimonial home, may rejoin him. In
view of this formulation, 11 years delay in filing the petition on the ground of desertion was held not to be improper,
as all the time petitioner was expecting the other party to rejoin. Indeed, remarkable patience: It is submitted that
this is not a proper distinction and our courts should avoid the temptation of following English decisions when they
are not in consonance with our social context.

A petition filed after one year and nine months after the cause of action arose, does not ordinarily suffer from the
infirmity of improper delay4.

Void Marriages and delay.—Where marriage is void the question of delay should not arise. In Aina Devi v. Bachan
Singh5 and Harender Nath v. Suprora6, the Allahabad and Calcutta High Courts categorically stated that no amount
of delay would stand in the way of granting the relief of declaration of nullity of marriage. In the former cases delay
was of four years, while in the later case it was of 24 years7. But in some cases of void marriage delay has been
considered to be fatal.

The basic assumption underlying this provision is that if delay has led the other spouse, reasonably to believe that
the petitioner does not want to seek annulment of marriage, the marriage cannot be annulled. There are two
interesting cases one under the Special Marriage Act, 1954 and the other under the Hindu Marriage Act,
1955;Kuppu Damayanthi v. C. Rama Rao8 and S. v. R.9 In the former case the husband tried to explain seven years
delay in filing the petition thus: he was trying hard all the years to persuade his wife to obtain divorce by mutual
consent but he failed. Rejecting the petition, the court observed that since he had accepted the marriage as valid all
these years, he could not now be allowed to repudiate it, since, the court said, “consequences with regard to the
children of marriage are so serious and far reaching that it will be unjust and improper to give individuals the choice
of challenging a marriage whenever they liked,” On the other hand in S. v. R., there was 14 years delay. It was
wife’s petition for annulment of marriage on the ground of husband’s impotency. The court accepted the wife’s plea
that since her parents with whom she was living, were very conservative and shuddered at the very idea of their
daughter going to the court, she could not file the petition earlier. This was the typical Indian situation and the court
accepted this as a reasonable explanation of the delay.

In England in such cases doctrine of want of sincerity has been applied.

Doctrine of want of Sincerity

On the doctrine of want of sincerity, in the House of Lords, Selborne, L.C., made the following observation1:

The real basis of reasoning which underlies that phraseology is this, and nothing more than this, that there may be conduct
on the part of person seeking this remedy which ought to stop that person from having it; as, for instance, any act from
which the inference ought to be drawn that during the antecedent time the party has, with the knowledge of the facts and of
the law, approbated the marriage which he or she afterwards seeks to get rid of or has taken advantages and derived
benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received
them, to treat as if no such relation had ever existed. Well, now that explanation can be referred to known principles of
equitable, and I may say, or general jurisprudence. The circumstances which may justify it are various and in cases of this
kind, many sort of conduct might exist, taking pecuniary benefits, for example, living for a long time together in the same
house or family with the status and character of husband and wife, after knowledge of everything which it is material to
know...

Commending on the doctrine, Lord Bramwell said:

Now one word as to this question of ‘sincerity’. It is a most remarkable expression, a very curious word and I am not at all
sure that it has not resulted from this, that sincerity is a very important matter in ascertaining whether the spouse
complained of is impotent or not, and sincerity has been dwelt upon for that purpose till at last it has been taken to be a
separate head of objection to the complaining party’s proceedings. It seems to me very strange. What the complainant
does in a suit of this sort is to come to the appropriate court for a declaration of the truth; I say that this man is impotent and
was so at the time of the marriage, and I ask you to declare that fact.
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His Lordship added:

The very words of the summons are: “Declare the truth, that this man was impotent when he married me”. The court ought
to say, “No we will not—we know that it is true, but we will not say so”—Why? In my opinion, the man who has inflicted this
cruel wrong upon a woman ought to be heard to object to her complaining. When she comes forward with her complaint of
this wrong that he has done her unless in some way or other he can show that he sustains some injury from the double
matter of her not having complained earlier, and of her complaining now. In such a case, I should indeed, think that a law
might be made (perhaps it exists for ought I know), then in some way or another, the declaration of the truth should be
accompanied by some compensation to him for sort of an injury which, as I have indicated might have been done to him.

The English courts have cautioned that the doctrine should be applied with great care1.

By and large doctrine has been applied to impotency cases.

English law doctrine of want of sincerity or “the doctrine of approbation and reprobation” implies that by marrying an
impotent person, if the other spouse has benefited, or where marriage has been approbated, such as in case where
marriage takes place at an advance age of the parties with the full knowledge that sexual enjoyment would be
greatly impaired or curtailed or precluded, the marriage cannot be annulled on the ground of impotency of the
respondent. The doctrine of approbation extends even to those cases where the husband was able to obtain sexual
relief from his wife’s vagina which was only one inch and a half deep though the normal or full penetration was
impossible. Under English law even if approbation is proved the court has discretion as to what weight is to be
given to it.

The matter came for consideration before the Delhi High Court in S. v. R.2, the parties were married in 1943 and
they separated in 1956. A petition for annulment of marriage on the ground of husband’s impotency was filed in
1962. The main advantage that was alleged to have been taken by the wife was that she received certain properties
in gift from her husband and she was also allowed certain pecuniary advantages by the husband. The Division
Bench was of the opinion that sections 11 to 28 of the Hindu Marriage Act, 1955 formed a complete code as
regards the law of nullity and divorce, and therefore the courts were not allowed to fall back on the English common
law. The court held that the doctrine was not a part of Hindu law. It is submitted that the decision could be
supported at least on two grounds. Merely because a doctrine or principle exists in English law, it is not necessary
for our courts to say that it is also part of Hindu law.Secondly, our social conditions where people traditionally want
a marriage gets going whatever be the difficulty, and usually allow sufficient time to lapse before they go to the
court, does not warrant the adoption of the doctrine.

However in Vinod v. Aruna3, the Delhi High Court seems to have given a second thought to its view on the doctrine.
Rohatgi, J., observed:

Delay, however, long in bringing a proceeding under this Act is not by itself a bar but is relevant when considering want of
sincerity, that is, such conduct on the part of the petitioner as ought to estop him or her from the remedy. The statute does
not merely use the term ‘delay’. It also says that the delay must be ‘improper’ ‘unreasonable’. These are the keywords.
Delay itself does not amount to approbation. But it is a significant fact. Delay, however, long is not itself a bar in nullity suit:
it is merely a factor in considering any insincerity. The reason for requiring delay to be explained to the satisfaction of the
court is that prima facie the mere fact of delay upon a complaint of a matter so fundamental to marriage raises doubts as to
the reliability of the evidence of the complainant in support of the complaint. Even though the ground of complaint may be
well founded delay indicates that sense of injury is wanting.

Again in Dharam Dev Malik v. Raj Rani,1 the Delhi High Court observed:

So even though long unexplained delay on part of the appellant may not per se be fatal to the petition for divorce, it
certainly is a factor to reckon with while exercising discretion in favour of party... Hence, the court has to take into
consideration long and improper delay which remains unexplained while deciding whether a decree for divorce may be
passed or not. Such a conduct on the part of appellant certainly becomes relevant when considering want of sincerity of
purpose. In a way his acquiescence in prolonged separate living of the respondent without demur renders him a consenting
party for the same.
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Consent Obtained by Fraud, Force or Undue Influence: Divorce by Mutual

Consent—Hindu Marriage Act, Special Marriage Act
In reference to divorce by mutual consent both the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 lay
down that consent should not have been obtained by force, fraud or undue influence.

Hindu Marriage Act, 1955.—Clause (bb) of section 23(1) of the Act lays down: when a divorce is sought on the
ground of mutual consent, such consent has not been obtained by force, fraud or undue influence.

Special Marriage Act, 1954.—When a divorce is sought on the ground of mutual consent, such consent has not
been obtained by force, fraud or undue influence.

The term undue influence and fraud will have the same meaning as under the Indian Contract Act, 1872. In Krishna
Khetarpal v. Satish Lal,2 the Punjab and Haryana Court observed:

In view of section 13B and section 23(1)(bb) amongst other factors the court will exclude the possibility of the consent of
either party being obtained by force, fraud or undue influence and see through if there is any collusion. There is a world of
difference between consent and collusion. Whereas consent between two people is a state of being of the same mind,
collusion between the two is a secret agreement to deceive. It is an effort to mislead the court from the true state of affairs.

Petitioner’s Adultery, Cruelty or Desertion

Indian Divorce Act, 1869.—The Indian Divorce Act, 1869 lays down that petitioner will not be entitled to a decree
of divorce if he himself has been guilty of adultery, cruelty or desertion. This represent the old English law doctrine.
Under no other matrimonial statutes it is recognized as a bar.

Reconciliation
One of the comments on the pre-1969 English law of reconciliation was that far from encouraging reconciliation
between estranged couples, it made it less likely. The Divorce Law Reform Act has introduced institutionalized
reconciliation but the available information so far does not indicate that it has met with some success. In fact, the
English experience goes to show that reconciliation has little chance of success, once divorce proceedings have
commenced, and in England emphasis has shifted from reconciliation to conciliation, and efforts are made to settle
as many ancillary matters as possible through mutual agreement of parties. In other words, the institutional
machinery of reconciliation may not succeed to save the marriage yet it may help parties to resolve amicably
aftermath divorce problems, such as custody, maintenance and education of children, financial support to the needy
spouse and settlement of property with minimum possible anxiety to the parties and with maximum speed and
fairness.

Reconciliation is compulsory under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954. But the other
Indian matrimonial statutes do not provide for it.

Hindu Marriage Act, 1955.—Sub-sections (2) and (3) of section 23 of the Act which contain provisions of
reconciliation run:

(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case
where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring
about a reconciliation between the parties:
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the
grounds specified in clause (ii), clause (iii), clause (iv), clause (vi) or clause (vii) of sub-section (1) of section 13.
(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the
court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and
 Page 25 of 32
Chapter XI Bars to Matrimonial Reliefs

refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail
to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and
the court shall in disposing of the proceeding have due regard to the report.

Special Marriage Act, 1954.—Sub-sections (2) and (3) of section 34 of the Act containing the provision lay down:

(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case
where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring
about a reconciliation between the parties: Provided that nothing contained in this sub-section shall apply to any proceeding
wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-
section (1) of section 27.
(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the
court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and
refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail
to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and
the court shall in disposing of the proceeding have due regard to the report.

It may be noticed that the provision under both the statutes is almost identical. Matters to which reconciliation
does not apply: Petition on certain fault grounds.—When a petition for divorce under the Hindu Marriage Act,
1955 is presented on the ground of change of religion [clause (ii) of section 13(1)], unsoundness of mind [clause (iii)
of section 13(1)], leprosy [clause (iv) of section 13(1)], venereal disease [clause (v) of sub-section (1) of section 13],
renunciation of world [clause (vi) of sub-section (1) of section 13], or presumption of death [clause (vii) of sub-
section (1) of section 13], reconciliation efforts need not be made, that is to say, the provisions of section 23(2) do
not apply.

Similarly, when a petition for divorce is made under the Special Marriage Act, 1954 on the ground of seven years
sentence of imprisonment [clause (c) of sub-section (1) of section 27], unsoundness of mind [clause (e) of sub-
section (1) of section 27], venereal disease [clause (f) of sub-section (1) of section 27], leprosy [clause (g) of sub-
section (1) of section 27], or presumption or death [clause (h) of sub-section (1) of section 27], no efforts at
reconciliation need be made.

On all other grounds, the court has an obligation to make efforts at reconciliation1.

Petition for divorce by mutual consent.—It is also evident that reconciliation is out of question in a petition for
divorce by mutual consent. There is an in-built opportunity for reconciliation if parties wish to avail of it. When a joint
petition is presented, it is adjourned for a minimum period of six months. This period is to enable them to think the
matter of divorce over again and if they want to prolong their consideration of reconciliation, they can do so for
another one year (total period is eighteen months, within which they can move the motion of a decree of divorce).

Reconciliation by the court.—Sub-section (2) of section 23 of the Hindu Marriage Act, 1955 and sub-section (2) of
section 34 of thespecial Marriage Act, 1954 lay down that at the first instance it is the duty of the court to make
every efforts to bring about a reconciliation between the parties where it is possible to do so consistently with the
nature and circumstances of the case. The words are “before proceeding to grant the relief”. At one time a view was
propounded that reconciliation endeavour should be made towards the end of the proceedings when the court
come to the conclusion that it is going to grant “relief”. But then the provision has also the words “at the first
instance” and these have been interpreted that before the court takes up the case for hearing, it should make an
effort at reconciliation. Presently, the latter seems to be prevalent view. Even before written statement is submitted
by the respondent, the court should call the parties in his chamber and endeavour to effect a reconciliation between
them. In Sakri v. Chhanwarlal1, the Rajasthan High Court observed that the words “first instance” do not mean that
the court cannot proceed to go into the trial without first making an endeavour to bring about reconciliation, but the
law imposes a duty on the court to make an effort at any stage. If effort is not made before the trial, it may be made
later on, in every case, before it proceeds to grant relief. The Court added, the effort has to be a reasonable human
endeavour and the court would do so only “where it is possible to do so consistently with the nature and
circumstance of the case”2. It is the duty of the court to make an endeavour at reconciliation even in a case where
estrangement between the parties to marriage is acute. If despite its efforts reconciliation does not come about, it
does not matter, but nonetheless it is the duty of the court to make an effort3. In Balwinder Kaur v. Hardeep Singh4,
the Supreme Court has further reiterated that matrimonial disputes require humane handling and courts should take
affirmative and productive approach. Endeavour at reconciliation must be made.5 It was again strongly reiterated by
the Supreme Court that it is the duty of the Court to make every endeavour to bring about reconciliation and it is
 Page 26 of 32
Chapter XI Bars to Matrimonial Reliefs

mandatory. Thus efforts at reconciliation by the court has to be made. Such effort may be made from the start of the
case or at any time before the court proceeds to grant relief6. The difficulty that the court faces in such situations is
aptly stated by Krishna Iyer, J., in Mohini v. Virender Kumar7, thus:

A judgment often possess a sublime essence and a humdrum component and in its happy conclusion holds out the higher
lesson that hate and fight are dissolved by basic human fellowship, even after litigative struggle, if the Bench and Bar
pursue consensual justice, and bringing into play conciliatory process, and successfully persuade the parties to see reason
and right beyond bare law. If the efforts succeed, the court and counsel derive spiritual fulfilment and get satisfaction.

The learned Judge added:

The sublime element which we advert to in the beginning consists in the optimistic endeavour to bring parties together so
that the litigation may not cut them as under... We consider it a success of the finer human spirit over its baser tendency for
conflict. We should like to emphasise that endeavour is a path-finder for the subordinate courts in dealing with family or like
disputes. We commend this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his
autobiography... I realised that the true function of a lawyer was to unite parties driven under... as a lawyer I was occupied
in bringing about private compromises of hundreds of cases. I lost nothing thereby... nor even money certainly not my soul.

Case of Bejoy Daw v. Aloka Daw1, illustrated the process of reconciliation. The Calcutta High Court observed:

We at once made it clear, direct we would not, for reconciliation is reconciliation, not coercion, far less judicial coercion. But
an expression of regret would not even move Aloka [wife] a bit, because she was unable to rely upon her husband’s words.
So, it was futile to proceed further and, much to our disappointment, our endeavour to bring about a reconciliation between
the parties failed. For that we blame neither Aloka nor Bejoy. If Aloka is within her right to refuse to return to the matrimonial
home, Bejoy is equally within his right not to go further than he has gone. We, therefore, enter into merits of appeal with an
open mind and without the slightest prejudice to either, for the stand each takes, during our attempt to effect a
reconciliation.

The rationale of reconciliation-endeavour by the court has been well expressed in the following observations of Lord
Macdermott, “the jurisdiction in divorce involves the status of the parties and public interest required that marriage
bond shall not be set aside lightly without strict enquiry”2. This passage has been approved by the Supreme Court
in Earnest John White v. Kathleen Olive White3 in V.K. Gupta v. Nirmala Gupta4, the Supreme Court very aptly said:

It is fundamental that reconciliation of ruptured marriage is the first essay of the Judge aided by counsel in this noble
adventure. The sanctity of marriage is, in essence, the foundation of civilisation and therefore, Court and counsel owe a
duty to society to strain to the utmost to repair the snapped relations between the parties. This task becomes insistent when
an innocent offspring of the wedding struggles in between the disputed parents. At the end of this conciliatory journey, it is
possible to reach a happy destination resulting in the restoration of the conflict between the parties, eventual restoration of
the conjugal home, on our gentle persuasion, they may move to live together, and we may be glad that story ends happily
we should impress the spouses that an ideal marriage, life is always good and they should not break the tie... Judicial
monitoring is a statutory prophylactic.

The Supreme Court added:

Before proceeding to grant any relief in the matter of matrimonial causes... it shall be the duty of the court in the first
instance in every case where it is possible to do so consistently with the nature and circumstances of the case to make
every endeavour to bring about a reconciliation between the parties.

When Marriage is void.—Where marriage is alleged to be null and void no effort at reconciliation need be made1.

Reconciliation at the efforts of outside Agency.—In Mohini v. Virendra Kumar,2 Chandrachud, C.J., emphasised
importance of the role that social organization can play in effecting reconciliation.

Sub-section (3) of section 23 of the Hindu Marriage Act, 1955 and sub-section (3) of section 34 of thespecial
Marriage Act, 1954 stipulate that reconciliation endeavour may also be made by an outside agency. This agency
may be of two types:
(i) When reconciliator is named by the parties, or
 Page 27 of 32
Chapter XI Bars to Matrimonial Reliefs

(ii) When reconciliator is nominated by the court on the failure of the parties to do so.

This machinery can be brought into motion only when the parties desire or the Court thinks it just and proper so to
do. When this happens, the Court would adjourn the case for a period which cannot exceed fifteen days. When a
reconciliator is appointed, he is to submit its report to the court which the Court would take into consideration.

In some States, reconciliation officer have been attached with the court, whose service may be availed to by the
parties.

Decree granting relief passed without any endeavour at reconciliation.— When a court passes a decree in a
matrimonial cause granting the relief without any endeavour at reconciliation will such a decree be null and void? In
Anupama v. Bhagwan3, the Orissa High Court remanded the case to the trial court on the ground that it did not
make any effort at reconciliation as required under section 23(2) of the Hindu Marriage Act, 1955. But merely
because the court did not discharge its duty under section 23(2) a decree passed in a matrimonial cause cannot be
held to be nullity. Failure to make an endeavour under section 23(2) does not affect the jurisdiction of the court even
though it may amount to serious omission on the part of the court4. But a contrary view has been expressed in
Leela Pande v. Sachandia Kumar Pande5. It is the duty of the court to record findings of court’s reconciliation
effort6.

1 Section 5 of the Matrimonial Causes Act, 1973.

2 Sections 12 and 14.
1 Section 35.
2 Section 4.
3 Section 34.
4 Section 23.
1 Certain words omitted by Act 51 of 2001, sec. 9
1 Section 6(1).
1 (1951) AC 311 .
2 AIR 1970 Cal 38 [LNIND 1969 CAL 95]: 74 Cal WN 168.
3 Allaha Rakha v. Barkat Bibi, 74 CWN 168: AIR 1930 Lah 771 .
4 AIR 1958 SC 441 [LNIND 1958 SC 18]: 1958 SCR 1410 [LNIND 1958 SC 18]: 1958 SCJ 839 [LNIND 1958 SC 18].
1 Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 [LNIND 1956 SC 82]: 1956 SCR 838 [LNIND 1956 SC
82]: 1957 SCJ 144.
2 AIR 1964 SC 40 [LNIND 1963 SC 187]: (1964) 4 SCR 331 [LNIND 1963 SC 187]: 66 Bom LR 297.
3 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
4 See Rebarani Sen Gupta v. Ashit Sen Gupta, AIR 1965 Cal 162 [LNIND 1964 CAL 119] (restitution); Sachindranath
Chatterjee v. Nilima Chatterjee, AIR 1970 Cal 38 [LNIND 1969 CAL 95]: 74 Cal WN 168 (adultery); Lilbali v. Kashinath,
(1965) 73 CWN 19 (adultery); Nishit Kumar Biswas v. Anjali Biswas, 71 CWN 831: AIR 1968 Cal 105 [LNIND 1967
CAL 60] (nullity); H.T. Vira Reddy v. Kistamma, AIR 1969 Mad 235 [LNIND 1968 MAD 7]: 81 Mad LW 490: (1969) 1
Mad LJ 366(adultery); Pattayee Ammal v. Manickam Gounder, AIR 1967 Mad 254 [LNIND 1966 MAD 48]: (1966) 79
Mad LW 620: 1967 Cr LJ 900 (adultery); Vaimal v. Cheth, (1966) 2 MLJ 254 (adultery); Maganlal Budhaiabhai Patel v.
Bai Dahi, AIR 1971 Guj 33 (adultery); Meena v. Prakash, (1983) 2 DMC 227 : 1983 Mah LJ 221: AIR 1983 Bom 409
(adultery and mental disorder).
5 AIR 1972 Raj 253 : 1972 Raj LW 568: ILR (1972) 22 Raj 598 (nullity).
1 AIR 1971 Guj 33 .
2 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
3 AIR 1985 Guj 121 : 1984 Guj LH 939: 1985 Mat LR 326.
 Page 28 of 32
Chapter XI Bars to Matrimonial Reliefs

1 Gauri Dey v. Bidhu Bhusan Dey, AIR 1986 Gau 22 : (1986) 1 DMC 479: (1986) 2 Hindu LR 18; Meera Bai v. Rajinder
Kumar Sobti, AIR 1986 Del 136 [LNIND 1985 DEL 193]: (1987) 1 HLR 557: (1985) 2 Cur CC 313; Somasekharan Nair
v. Thankamma, AIR 1988 Ker 308 [LNIND 1987 KER 223]: 1987 Ker LJ 810: (1990) 1 HLR 383.
2 Leela Pande v. Sachendra Kumar Pande, AIR 1994 MP 205 [LNIND 1994 MP 340]: 1995 MPLJ 397: 1995 (21) Marri
LJ 8.
3 A. Edwardraj v. C. Selva Rami, AIR 1994 Mad 82 [LNIND 1993 MAD 389]: 1994 (1) Hindu LR 550: 1994 Marri LJ 282.
1 Mohanlal v. Mohanbai, AIR 1985 Raj 71 .
2 Govindrao Ranoji Musale v. Sou. Anandibai, AIR 1976 Bom 433 [LNIND 1976 BOM 88]: 79 Bom LR 73: 1977 Hindu
LR 465; Sumitra Manna v. Gobinda Chandra Manna, AIR 1988 Cal 192 [LNIND 1987 CAL 162]: 92 CWN 254: (1988)
1 Hindu LR 544.
3 Mato v. Sadhu, AIR 1961 Punj 152 : ILR (1960) 1 Punj 94.
4 Raydon on Divorce. In fact, Raydon has reproduced this passage from the opinion of Viscount Simon, L.C., in Blunt v.
Blunt, 1943 AC 517 : (1943) 2 All ER 76 : 169 LT 33.
5 Madhukar Bhaskar Sheorey v. Saral Madhukar Sheorey, AIR 1973 Bom 55 [LNIND 1971 BOM 113]: 74 Bom LR 496:
ILR 1973 Bom 113 [LNIND 1971 BOM 113].
1 AIR 1975 Bom 88 [LNIND 1973 BOM 28]: 76 Bom LR 304: 1975 Hindu LR 449.
2 AIR 1977 SC 2218 [LNIND 1977 SC 256]: (1977) 4 SCC 12 [LNIND 1977 SC 256]: 1978 1 SCR 315 [LNIND 1977 SC
256].
3 ILR (1971) 1 Del 1 .
4 AIR 1985 Del 393 [LNIND 1985 DEL 61]: 1985 Marri LJ 369: 1985 Mat LR 308.
1 AIR 1986 MP 57 [LNIND 1985 MP 65]: 1986 MPLJ 105 [LNIND 1985 MP 65]: (1986) 1 DMC 457.
2 AIR 1986 Del 136 [LNIND 1985 DEL 193]: (1987) 1 HLR 557: (1985) 2 Cur CC 313.
3 Ashok Kumar Bhatnagar v. Shabnam Bhatnagar, AIR 1989 Del 121 [LNIND 1988 DEL 305]: 1989 Marri LJ 294: (1988)
2 Hindu LR 682.
4 AIR 2013 SC 2916 [LNIND 2013 SC 485]: 2013 AIR SCW 3195: (2013) 5 SCALE 706 [LNIND 2013 SC 485].
1 Mohanlal v. Mohanbai, AIR 1958 Raj 71 : 1957 Raj LW 476: (1957) 7 Raj 1014.
2 Govindrao Ranoji Musale v. Sou. Anandibai, AIR 1976 Bom 433 [LNIND 1976 BOM 88]: 79 Bom LR 73: 1977 Hindu
LR 465.
3 Mato v. Sadhu, AIR 1961 Punj 152 : (1960) Punj 94.
4 Sushil Kumari Dang v. Prem Kumar Dang, AIR 1976 Del 321 [LNIND 1976 DEL 23]: ILR (1976) 1 Del 665: 1976 Raj
LR 487.
1 Atmaram v. Narbada Devi, AIR 1980 Raj 35 : 1980 Mat LR 63: 1980 Hindu LR 194; Balabhadra Pradhan v.
Sundarimani Devi, AIR 1995 Ori 180 : (1995) 2 DMC 60: 1996 Marri LJ 186.
2 Section 23(1)(b).
3 Section 34(1)(b).
4 Section 12.
5 Section 35(c).
6 Barkat v. Hakam Bibi, ILR (1921) 12 Lah 216 ; Farshaw v. Farshaw, ILR 31 All 511.
7 Gower v. Gower,(1872) 2 P&D 428.
8 (1925), p. 114.
1 Section 12.
4 Section 35(i).
5 Churchman v. Churchman, (1945) 2 All ER 190 : 173 LT 108: 61 TLR 464.
6 K. v. K., AIR 1952 Nag 359 (FB).
1 Mudgev v. Mudgev, (1950), p. 173; B.D. Charles v. Nora Benjamin, AIR 1979 Raj 156 : 1979 Raj LW 248: 1979 Mat LR
394 (under Indian Divorce Act). See also English decision Douglas v. Douglas, (1950) 2 All ER 748.
2 Hayes v. Hayes, (1960) 2 All ER 401; Godfrey v. Godfrey, (1964) 3 All ER 154.
 Page 29 of 32
Chapter XI Bars to Matrimonial Reliefs

3 Rembelow v. Rambelow, (1965) 2 All ER 763; Godfrey v. Godfrey, (1964) 3 All ER 154.
4 Godfrey v. Godfrey, (1965) AC 444 (HL).
5 Buchler v. Buchler, (1947) 1 All ER 319 : 176 LT 341: (1947), p. 25.
1 (1950) 1 All ER 602 : 1950 WN 107.
2 (1950) 1 All ER 607.
3 (1950) 2 All ER 748.
1 Hayes v. Hayes, (1960) 2 All ER 401.
2 (1965) AC 444 (HL).
3 (1951) 2 All ER 959.
1 (1952) 1 All ER 838.
2 (1964) 3 All ER 1547.
3 Section 23(1)(b).
1 Section 34(1)(b).
2 Sections 12, 13 and 14.
3 Section 35(a).
4 Section 14, last para.
5 (1967) 2 All ER 77.
6 M.R.G.L.J. Vailshery v. Ramola Vailshery, AIR 1997 Kant 341 [LNIND 1997 KANT 249]: 1998 (1) Hindu LR 300: 1998
(1) Marri LJ 245.
7 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
1 N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]:
(1975) 3 SCR 967 [LNIND 1975 SC 125]; Moreno v. Moreno, AIR 1920 Cal 439 : ILR 47 Cal 1068 (Indian Divorce Act);
Carson v. Carson Stoyek, (1964) 1 All ER 681 : (1964) (1964) 1 WLR 511; see also Minakshi Dhar v. Biresh Ranjan
Dhar, AIR 1987 Gau 90, where B.L. Hansaria, J., gives a summary of law of condonation.
2 See also Krishna Rani v. Chuni Lal Gulati, 1981 Marri LJ 1: 1981 Hindu LR 16 : AIR 1981 P&H 119 ; Sneyd v. Sneyd,
(1926), p. 27.
3 Nirmala Devi v. Ved Prakash, AIR 1993 HP 1 [LNIND 1992 HP 1]: 1993 (1) Hindu LR 368: 1993 Marri LJ 288.
1 (1970) 3 All ER 188.
2 Bhagwan Singh Sher Singh Arora v. Amar Kaur, AIR 1962 Punj 144 : ILR (1961) 1 Punj 716.
3 (1958) 1 All ER 848.
4 See also Ganta Nagamani v. Ganta Lakshmana Rao, AIR 1992 AP 76 [LNIND 1991 AP 165]: 1992 (1) Hindu LR 626:
1992 Marri LJ 256.
5 See also Saptmi v. Jagdish, (1958) 1 All ER 848.
1 AIR 1982 All 52 : (1982) 1 DMC 194: 1981 All CJ 413.
3 Maganlal Budhaiabhai Patel v. Bai Dahi, AIR 1977 Guj 33 ; Jagan v. Swaroop, (1972) 2 MLJ 71; Devidas v. Gyanwati,
AIR 1993 MP 14 [LNIND 1992 MP 102]: 1993 (1) Hindu LR 334: 1993 Marri LJ 227.
4 AIR 1967 SC 581 [LNIND 1966 SC 257]: (1967) 1 SCR 864 [LNIND 1966 SC 257]: 1967 (1) SCJ 42.
1 AIR 1984 Del 291 [LNIND 1983 DEL 316]: (1984) 2 DMC 262.
2 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125].
3 AIR 2013 Chhat 88 : 2013 (128) All Ind Cas 383: 2013 (2) MPHT 10.
4 (1944) AC 49 : (1944) 1 All ER 44 : 170 LT 84 (HL).
5 Cramp v. Cramp, (1920), p. 154.
6 Tilley v. Tilley, (1948) 2 All ER 1113.
1 (1943) 2 All ER 465.
 Page 30 of 32
Chapter XI Bars to Matrimonial Reliefs

2 (1961) 2 All ER 635.

3 But see Mirely v. Mirely, (1961) 1 All ER 428.
4 Quinn v. Quinn, (1969) 3 All ER 1212; Santana Banerjee v. Sachindra Nath Banerjee, (1990) 1 HLR 419: AIR 1990 Cal
367 [LNIND 1989 CAL 393]: (1990) 1 Cal LJ 53 [LNIND 1989 CAL 393] (CA); S. v. S., (1970) 2 All ER 251.
1 Saptmi v. Jagdish Chandra, 73 CWN 502.
2 Puthalath Chathu v. Nambukkudi Jayasree, AIR 1990 Ker 306 [LNIND 1990 KER 91]: 1990 (2) Civ LJ 156: 1991 (2)
DMC 42.
3 (1948) 1 All ER 459.
1 R. v. K., AIR 1952 Nag 895 .
2 Kafton v. Kafton, (1948) 1 All ER 435; Yaduray Bansi v. Sunderbai, AIR 1969 Guj 21 : (1968) Guj 223: 10 Guj LR 45.
3 Beale v. Beale, (1950) 2 All ER 539.
4 P.M. Isaac John v. Beatrice John, AIR 1964 Ker 102 : 1963 Ker LJ 771: 1963 Ker LT 855.
5 Duncan v. Duncan, AIR 1939 Rang 352 ; Thompson v. Thompson, (1938) 2 All ER 359.
6 Beign v. Beign, (1947) 2 All ER 326.
7 Kafton v. Kafton, (1948) 1 All ER 435 : 205 LT Jo 148.
8 Richardson v. Richardson, (1949) 2 All ER 330 : 65 TLR 613: 1950 PD 16.
9 G.C. Foster v. A.B. Foster, 107 IC 184: AIR 1928 Oudh 114 (case under Indian Divorce Act).
10 (1956) 3 All ER 478.
1 Suraj Bala v. Som Mehra, 1980 MLR 41; Kemp v. Kemp, (1953) 2 All ER 533.
2 Palmer v. Palmer, (1960) 164 ER 914.
3 Dunn v. Dunn, (1962) 3 All ER 587 : (1962) 1 WLR 1480.
4 Benton v. Benton, (1957) 3 All ER 544.
5 (1956) 1 All ER 245.
6 AIR 1975 SC 1534 [LNIND 1975 SC 125]: (1975) 2 SCC 326 [LNIND 1975 SC 125]: (1975) 3 SCR 967 [LNIND 1975
SC 125].
1 Blyth v. Blyth, 1966 AC 643 : (1968) 2 WLR 634 : (1966) 1 All ER 524 (HL).
2 (1948) 2 All ER 1113.
3 1985 (2) HCR 608(P&H): AIR 1986 P&H 191 : (1986) 89-I PLR 12.
4 See Paras Diwan, Modern Hindu Law, (1987), 188-190.
1 (1967) 2 All ER 510.
2 See also Noble v. Noble (No. 2), (1964) 1 All ER 577.
3 (1890) 15 PD 66.
4 AIR 1979 Mad 100 [LNIND 1978 MAD 187]: 92 Mad LW 110: (1979) 1 Mad LJ 57.
1 AIR 1966 Mys 1 : (1965) 1 Mys LJ 329: ILR 1965 Mys 211.
2 AIR 1969 P&H 397 : ILR (1968) 2 P&H 714 (FB).
3 AIR 1971 All 201 : 1970 All LJ 997: 1970 All WR (HC) 608.
4 AIR 1964 Mys 67 : ILR (1963) Mys 788.
1 AIR 1970 Mad 178 [LNIND 1969 MAD 26]: (1969) 2 Mad LJ 539.
2 AIR 1970 Mad 91 [LNIND 1969 MAD 16]: 82 Mad LJ 459: (1969) 2 Mad LJ 457.
3 Linton v. Guderian, AIR 1929 Cal 599 : ILR 56 Cal 530.
4 B.D. Charles v. Nora Benjamin, AIR 1979 Raj 156 : 1979 Raj LW 248: 1979 Mat LR 394.
5 AIR 1980 Mad 3 [LNIND 1979 MAD 105]: (1979) 2 Mad LJ 186: 1979 Mat LR 404(SB).
6 (1866) 1 P&D 121.
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Chapter XI Bars to Matrimonial Reliefs

7 Beattie v. Beattie, (1938) 2 All ER 74.

8 Joginder Singh v. Pushpa, AIR 1969 P&H 397 : ILR (1968) 2 P&H 714 (FB).
9 Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562 [LNIND 1984 SC 200]: (1984) 4 SCC 90 [LNIND 1984 SC
200]: 1984 Marri LJ 499.
1 Section 23(1)(d).
2 Section 34(1)(e).
3 Section 35(d).
4 Section 14.
1 Section 12(2)(a)(c) and section 12(2)(b)(i) of the Hindu Marriage Act, 1955.
2 Section 25 of the Special Marriage Act, 1954.
3 Section 32.
4 (1918), p. 265.
1 Ranu v. Krishnaswami, (1972) MLJ 203; Vinod Chandra Dube v. Aruna Dube, AIR 1977 Del 24 [LNIND 1976 DEL 44]:
1977 Hindu LR 751: 1978 Marri LJ 360(where Indian and English case law has been reviewed).
2 Mohinder Pal Singh v. Kulwant Kaur, AIR 1976 Del 141 [LNIND 1975 DEL 128]: 1975 Rajdhani LR 514: 1976 Rajdhani
LR 467; Kaushalya Devi v. Masat Ram, AIR 1981 HP 63 : 1981 HLR 442: 1981 Marri LJ 266; S. v. R., AIR 1968 Del 79
; Chinnaperumal v. Mariya, AIR 1976 Mad 179 [LNIND 1973 MAD 265]: 1976 HLR 276: 89 Mad LW 51; Teerth Ram v.
Parvati Devi, AIR 1995 Raj 86 : 1995 (2) Hindu LR 233: 1995 (21) Marri LJ 320.
3 S. v. R., AIR 1968 Del 79 ; Chinnaperumal Naicker v. Mariyayee Ammal, AIR 1976 Mad 179 [LNIND 1973 MAD 265]:
(1976) 1 Mad LJ 85: 1976 Hindu LR 276.
4 Nirmoo v. Nikka Ram, AIR 1968 Del 260 [LNIND 1968 DEL 36]: 70 PLR (D) 179; Vinod Chandra Dube v. Aruna Dube,
AIR 1977 Del 24 [LNIND 1976 DEL 44]: 1977 Hindu LR 751: 1978 Marri LJ 360.
5 But see Surrinder Kaur v. Gurdeep Singh, AIR 1973 P&H 134 : 75 Pun LR 63, where the time spent in reconciliation
efforts was held to be a valid explanation of delay.
6 AIR 1962 Punj 195 ; see also Jasmail v. Gurana, (1875) 71 PLR 135.
1 See also Kuppu Damayanthi v. C. Rama Rao, AIR 1969 AP 62 [LNIND 1967 AP 124]: (1969) 1 Andh WR 275(nullity
petition); G. Ramakrishna Pillai v. J. Vijayakumari Amma, AIR 1990 Ker 55 : (1989) 2 HLR 97: (1989) 2 DMC 512.
2 AIR 1969 Pat 27 ; Thimmappa v. Thimmaya, (1972) 1 Mys LJ 25 (unexplained delay of five years); Chhaganlal v.
Sakkha Devi, AIR 1975 Raj 8 [LNIND 1974 RAJ 50]: 1974 Raj LW 291 (four years’ delay).
3 See also Leela v. Dr. Rao Anand Singh, AIR 1963 Raj 178 [LNIND 1963 RAJ 90]: ILR (1963) 13 Raj 424 [LNIND 1963
RAJ 90]: 1963 Raj LW 390; S. v. R., AIR 1968 Del 79 ; A. v. B., AIR 1967 Punj 152 ; Shanti Devi v. Govind Singh, AIR
1983 Raj 211 .
4 AIR 1968 Del 260 [LNIND 1968 DEL 36]: 70 PLR (D) 179.
5 AIR 1966 Mys 178 .
6 AIR 1970 Cal 266 [LNIND 1969 CAL 231].
7 AIR 1968 Cal 133 [LNIND 1967 CAL 33]: 71 Cal WN 605.
1 AIR 1990 Ker 306 [LNIND 1990 KER 91]: 1990 (2) Civ LJ 156: 1991 (2) DMC 42.
2 AIR 1984 Kant 131 [LNIND 1983 KANT 99]: (1984) HLR 210: (1984) 1 Civil LJ 348.
3 Becker v. Becker, (1966) 1 WLR 423 : (1966) 1 All ER 894 : 110 SJ 110; Lowe v. Lowe, (1952) 2 All ER 671 : 214 LT
261.
4 Mukesh Kumar Gupta v. Kamini Gupta, AIR 1984 Del 368 [LNIND 1984 DEL 70]: 1984 Rajdhani LR 512.
5 AIR 1980 All 174 .
6 AIR 1989 Cal 120 [LNIND 1988 CAL 211]: (1989) 93 CWN 102: (1989) 1 HLR 228.
7 See also Harendra Nath v. Suprora Burman, AIR 1989 Cal 120 [LNIND 1988 CAL 211]: (1989) 93 CWN 102: (1989) 1
HLR 228 (case is under the Special Marriage Act, 1954).
8 AIR 1969 AP 62 [LNIND 1967 AP 124]: (1969) 1 Andh WR 275.
9 AIR 1968 Del 79 .
 Page 32 of 32
Chapter XI Bars to Matrimonial Reliefs

1 G. v. M., (1885) 10 AC 171 : 52 LT 398.

1 See, for instance, Clifford v. Clifford, (1948) P 187: (1948) 1 All ER 394 : 64 TLR 209.
2 AIR 1968 Del 79 .
3 AIR 1961 Del 79 .
1 AIR 1984 Del 389 [LNIND 1984 DEL 102] (396): (1984) 2 DMC 20 : 1984 Marri LJ 48.
2 AIR 1987 P&H 191 : 1986 Marri LJ 560: (1987) 1 Hindu LR 36.
1 Pramila Bhagat v. Ajit Raj Singh Bhagat, AIR 1989 Pat 163 : (1989) 2 DMC 466: 1990 (1) Hindu LR 145.
1 AIR 1975 Raj 134 : 1974 Raj LW 418 (DB).
2 See also Rameshwari v. Kripa Shankar, AIR 1975 Raj 28 : 1974 Raj LW 353; Sushma Kumari v. Om Prakash, AIR
1993 Pat 156 : 1993 (2) Civ LJ 620: 1993 (1) DMC 529.
3 Chhotelal v. Kamla, AIR 1967 Pat 269 .
4 AIR 1998 SC 764 [LNIND 1997 SC 1444]: (1997) 11 SCC 701 [LNIND 1997 SC 1444]: 1998 AIR SCW 474.
5 Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083 [LNIND 2007 SC 157]: 2007 AIR SCW 3201: (2007) 2 SCC 564
[LNIND 2007 SC 157].
6 Sakri v. Chhanwarlal, AIR 1975 Raj 134 : 1974 Raj LW 418 (DB).
7 (1977) 3 SCC 513 : AIR 1977 SC 1359 .
1 AIR 1969 Cal 477 [LNIND 1969 CAL 20]: 74 Cal WN 624 (DB).
2 Preston-Jones v. Preston-Jones, (1951) 1 All ER 124 : 1951 AC 391: (1951) 1 TLR 8.
3 AIR 1958 SC 441 [LNIND 1958 SC 18]: 1958 SCR 1410 [LNIND 1958 SC 18]: (1958) 2 MLJ (SC) 125.
4 (1979) 4 SCC 258 [LNIND 1979 SC 360].
1 Salam v. Sant Singh, AIR 1990 Cal 315 [LNIND 1989 CAL 415].
2 (1977) 3 SCC 513 : AIR 1977 SC 1359 .
3 AIR 1972 Ori 163 [LNIND 1971 ORI 101]: (1971) Cut 1447.
4 Raj Rani v. Harbans Singh Chhabra, AIR 1972 Pat 392 : 1972 Pat LJR 582: ILR (1972) 51 Pat 1003 .
5 AIR 1994 MP 205 [LNIND 1994 MP 340]: 1995 MPLJ 397: 1995 (21) Marri LJ 8.
6 Raj Kishore Mishra v. Meena Mishra, AIR 1995 All 70 [LNIND 1994 ALL 367]: 1995 All LJ 279: 1995 (21) Marri LJ 252.

End of Document
 Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

INTERIM AND PERMANENT MAINTENANCE; MAINTENANCE OF DIVORCED MUSLIM

WIFE; CUSTODY, MAINTENANCE AND EDUCATION OF CHILDREN; AND SETTLEMENT
OF PROPERTY

PART I ANCILLARY PROCEEDINGS

Introductory
The most deficient we are in the provisions relating to the solution of aftermath of divorce problems. Marriage
dissolution leaves many problems to be resolved. These relate to parties to the dissolved marriage and their
children, and settlement of property.

As to maintenance of the spouses of the dissolved marriage, there is in section 25 of the Hindu Marriage Act, 1955,
a provision for permanent maintenance and alimony. A similar provision exists in other matrimonial statutes. It is
only under the Hindu Marriage Act, 1955 that either party—wife or husband—can claim maintenance and alimony,
while under other it is only wife who can claim it. The provision lays down that the court may order the other party to
pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a
term not exceeding the life of the applicant after taking into account certain factors. Such payments may also be
secured. Such orders also come to an end on the re-marriage of the applicant. Such orders may also be modified
on change of circumstances. No care is taken of the liability or expenses incurred by the applicant for maintaining
herself or any child of the marriage before the application was made.

Matrimonial laws singularly lack in the provisions relating to the settlement of properties of the spouses and the
matrimonial home. Section 27 of the Hindu Marriage Act, 1955 provides only for the settlement of the property
presented jointly to the husband and wife at or about the time of marriage, it does not talk about the settlement of
the property of spouse owned by them jointly or separately. The fact of the matter is that if the Law Commission and
the drafters of the Amending Bill would have looked at the English Matrimonial Causes Act, 1973 carefully they
would have found that two-thirds of the Act deals with the aftermath of marriage dissolution. If we want to have a
socially just law of divorce it is mandatory that we pay more attention to the aftermath of divorce as that alone can
lead to stability of marriage. Thus it is imperative for us to have a provision like that of section 24 of the Matrimonial
Causes Act, 1973 which stipulates for the transfer of property from one party to another as well as settlement of the
spousal property for the benefit of the needy party and the children. The court has also power to vary any ante-
nuptial or post-nuptial settlements including the will of either party in the interest of the needy spouse and children.
In the modern urban life the matrimonial home pay a very important role during the subsistence of marriage as well
as after its dissolution, England has now a Matrimonial Home Act, 1967 and the Domestic Violence and Matrimonial
Proceedings Act, 1976. The former protects the right of the wife (because it is she who needs it) in the matrimonial
home and the latter protects her from domestic violence. It provides protection to battered wives,i.e., woman who
has suffered serious or repeated physical injury from the man with whom she lives. Abuse may include emotional
assaults as well as physical attacks. In India we are aware of the problem, yet we are not showing adequate
consciousness and will to tackle it. And unless we allow ourselves to be really aware of the problem and willing to
take active steps to remedy it, it will remain with us. It will help us if we decide to set up something like crisis centres
which would be open for 24 hours a day to which wives in distress could go for advice and support.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

The same treatment has been given to the problem of children as an aftermath of divorce. In this regard the Indian
provisions do not go beyond the provisions of the Matrimonial Causes Act, 1950. Children are still treated as part of
ancillary proceedings, as subject-matter of dispute between their parents and not as independent parties. There is
no provision for settlement of property in their favour. Under the Indian Divorce Act, 1869 and the Parsi Marriage
and Divorce Act, 1936 there are penal provision for the settlement of the property of the adulterous wife. Apart from
this, no matrimonial statute stipulates for the settlement of the property of the parties in favour of the children. Even
the provisions relating to maintenance, custody and education of children are inadequate. If we would have looked
to the provisions of the Matrimonial Causes Act, 1973 we would have got sufficient light on the matter. Reference to
English law is made here repeatedly since we have been drawing very freely from it. Thus, there is no provision of
wardship of children. The Divorce Court has no power to declare that both the parents or either of them is unfit for
the custody of the children, and that custody be given to a third person or an institution. It is submitted that children
should be treated as separate parties and it should be their interest which should be in uppermost consideration.
The children should be represented by an independent counsel of their own and should not depend upon the
counsel of their parents, particularly in cases of contested custody or neglect matters.

New Approach to Broken Homes: Family Court and Marriage Counselling

Service
Litigation in respect of any matter concerning family, whether divorce, maintenance and alimony or custody,
maintenance and education of children or trial of juvenile offenders should not be viewed in term of failure or
success of legal action but as a social therapeutic problem. It should not be viewed as litigation in which parties and
their counsel are engaged in winning or defeating, but as a social problem needing solution. The resolution of family
conflicts requires special procedure—designed to help people in trouble to reconcile and resolve their differences,
and where necessary, to obtain assistance. Thus the court procedure would require modification of the traditional
adversary systems. In the prevalent system the district judge who is well versed in ordinary civil and criminal trials
try the matrimonial matters including custody, etc., of children in the easy manner with adversary litigation system
taking its own toll. The same judge tries the divorce, restitution, judicial separation, custody and maintenance of
children, spousal maintenance who tries the claim for breach of contract, claims in motor vehicle accidents, crimes
like rape and murder. It should be understood that adjudication of family disputes is an entirely different matter. It is
a different culture. It has a different jurisprudence. The court adjudicating family disputes should function in a
manner that it may tend to conserve and not disrupt the family life: that it may be constructive and not destructive of
marriage; that it may be helpful, not harmful to the individual partners, and their children; and that it may be
preservative rather than punitive of marriage and family. It is now admitted that the adversary system promotes
ritualistic and unrealistic response to family problems. The present system offers no legal protection to children;
they are not represented by counsel, and the court does not have enough information to determine their best
interest. More often than not children get caught up in inter-spousal conflicts as pawns, weapons—and ultimately
victims. In fact the adversary process precludes reconciliation and conciliation of inter-spousal and inter-parental
conflicts.

Today in most countries of the world the concept of family court has caught up. In India too the Family Courts Act,
1984, has been passed which have been brought into force in some big cities only. But a court nomenclatured as
family court will not do; it has to have support services, specially trained judges and lawyers who are not merely
well versed in family law but also in sociology and psychology, and it has to have a less formal procedure. The
objective should be resolution and settlements of disputes and not merely decisions in a litigation.

Here some aspects of the family court are touched upon. In some countries “do your own divorce” concept has
come up which visualises dispensation of service of the lawyer. It is submitted that services of specially trained
lawyers should be available to the parties and their children as parties in trouble, where emotional tensions are at
the high pitch, are not capable of thinking independently. Apart from this, no family court can achieve its objective
unless there are counselling and conciliation services available to the parties. There should be a pre-marital
counselling which should be independent of the family court; reconciliation and conciliation counselling which
should help families in crisis—it is essentially a service available to parties at a time when both or one of them is
trying to make up his mind to go to the court but has not yet gone there. Thirdly, a post-adjudicatory counselling.
There should also be an investigating service designed to assist the judge at arriving at his decision. These
services should be part of the family court. We may quote a rather long but interesting quote from a brochure of the
Australian counselling service. Before the disruption of the marriage, the counselling has following role to play:
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

Broadly speaking, marriage counselling is talking over your marriage problems with a marriage counsellor—a person who is
trained in helping others to examine their problems, apart from taking any legal action. This can take place with or without
your spouse being present.

A marriage counsellor is not there to persuade you to put up with an unbearable situation. After talking to a
marriage counsellor you may still think that your marriage has broken down irretrievably and that divorce is the only
way out. On the other hand, through his training and experience he may be able to help you to cope with your
problems without taking divorce proceedings.

If your consultation with the marriage counsellor does not change your view that your marriage has broken down
irretrievably, he can still help you in sorting out the arrangements that have to be made on termination of your
marriage.

After divorce it has the following role:

It can be seen that divorce while severing the legal connection between the parties to the marriage does not sever all
connections between them. Where there are children, especially young children, with whom both parties desire a continuing
relationship, there must of necessity be further contract between the parties after divorce.

Divorce, however eagerly sought, frequently bring anger, regret and loneliness. A marriage counsellor can, in such
circumstances, help persons who feel unable to approach others for moral support.

For the very reasons already mentioned—the need to make arrangements for children, for maintenance and for the
split-up of property—divorce frequently means both an emotional and financial disruption to the lives of both parties.
Where there are children, they can very easily be hurt by the divorce of their parents—just as they can be hurt by
the continuing friction between parents whose relationship has broken down but who continue to live together.

Even after the dissolution of marriage, spousal relationship continues to exist in respect of the following two
matters:
(a) obligation of one spouse to provide maintenance and support to the needy spouse, and
(b) more importantly, though the marriage is dissolved by a decree of divorce, parental relationship with the
children of marriage continues and therefore matters relating to custody, maintenance and education of
children have to be determined by the court.

The proceedings in which these matters are decided are under our law known as ancillary proceedings.

Ancillary Proceedings
According to Chamber’s Twentieth Century Dictionary, the word “ancillary” means, “subserving, ministering,”
According to Encyclopaedia Britannica, it means, “a handmaid, subordinate to” or “merely helping as opposed to
essential”.

The expression “ancillary” was first used in the English matrimonial law by the Matrimonial Causes Rules, 1937.
Under the ecclesiastical law, the court was required to pronounce a decree of alimony in favour of the wife on its
pronouncing a decree of divorce a mensa et thoro as ancillary to the decree of separation. When the matrimonial
jurisdiction came to be conferred on common law courts by the Matrimonial Causes Act, 1857, the Courts
considered itself to be duty bound to provide two types of relief as ancillary to the main petition, viz. (a) alimony and
maintenance to the wife, and (b) adjudication of matters relating to custody maintenance and education of children.

After the passing of the Married Women’s Property Act, 1882, two other matters as ancillary relief, also came to fall
within the purview of the divorce court: settlement of guilty wife’s property for the benefit of husband and/or
children1(which provision still exists under the Indian Divorce Act, 1869) and variation of ante-nuptial or post-nuptial
settlements2.

On the recommendation of the Royal Commission on Marriage and Divorce that the question of custody of children
should be recognized as one which is just as important as the question of divorce, the Matrimonial Proceedings
(Children) Act, 1958 was passed. The Act lays down that the children are independent parties to the divorce and
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

not just aftermath divorce problems and it laid down that no decrees of divorce can be passed unless adequate
arrangements have been made for the children. These provisions were carried into the subsequent Matrimonial
Causes Act, 19733.

The Matrimonial Proceedings and Property Act, 1970 provides for an unified code of ancillary relief. These
provisions have been re-enacted and consolidated in the Matrimonial Causes Act, 19734. Rule 2(2) of the
Matrimonial Causes Rule, 1977 defines ancillary relief as to include an avoidance of disposition order, a financial
provision order, an order for maintenance pending suit, a property adjustment order, and a variation order. In
Baynham v. Baynham, Lord Denning observed:

I have repeatedly said that, whenever possible, the judge who hears divorce proceedings, should also deal with all the
ancillary matters. He should deal with custody of children and arrangements for their welfare. He should deal with
matrimonial home and family assets, deciding what should be done with them. He should decide disputes as to property.

Under all the Indian matrimonial statues, the question of spousal maintenance and all questions relating to custody,
maintenance and education of children are considered ancillary matters5. In England now ancillary matters can be
adjudicated even if the main petition is dismissed. This does not seem to be so under Indian law. Courts in India
have expressed divergent views. The implication of ancillary relief are:
(a) Unless a petition in a matrimonial cause has been filed, the court has no jurisdiction to grant ancillary relief.
(b) Since granting of ancillary relief is tagged to the main proceedings, if the main petition in a matrimonial
causes is dismissed no ancillary relief thereto can be granted.

Court’s jurisdiction in ancillary matter is tagged to the petition in a matrimonial cause.—Simply put, unless a
petition is filed in a matrimonial cause, viz., nullity, divorce, judicial separation or restitution of conjugal rights, no
application for an ancillary relief can be presented to the court. For instance, if a wife seeks maintenance or custody
of children from a divorce court, she must first file a petition for divorce (or any other matrimonial cause), and then
seek ancillary relief. If she does not do so, she cannot invoke the jurisdiction of the court. If wife wants to sue her
husband for maintenance without filing any proceedings in a matrimonial cause, she should take recourse to
section 125 of the Criminal Procedure Code, 1973 or her personal law. A Hindu wife can sue her husband under
section 18,Hindu Adoptions and Maintenance Act, 1956. Similarly, for custody, she should take recourse to the
guardian courts under the Guardians and Wards Act, 1890.

It seems to be evidently clear that orders for permanent maintenance as well as custody, etc., of children can be
proceeded with only as ancillary matters to the proceedings in matrimonial cause. Similarly, proceedings for interim
maintenance or interim custody, etc., of children can be filed only as ancillary proceedings to the main proceeding
in a matrimonial cause.

Since the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 use the words “in any suit under
this Act” and the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 use the words in “proceedings under
the Act”. The question has arisen as to whether proceedings allied to main proceedings are covered under these
words. Obviously an appeal filed from the decree of the trial court in a matrimonial cause are proceedings under the
Act and interim maintenance can be claimed from the appellate court. Similarly, an application for restoration of
petition dismissed for default, an application for setting aside an ex parte decree and a revision application are
proceedings under the Act, (even though the proceedings are, strictly speaking, under the Code of Civil Procedure,
1908) and ancillary reliefs can be claimed in these proceedings1.

The court in a matter of right of deserted wife to stay in tenancy premises, held that the case of a divorced wife
stands on a little different footing. Divorce is termination of the matrimonial relationship and brings to an end the
status of wife as such. Whether or not the divorced wife has the right of residence in the matrimonial home, would
depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance
(including residence) has been made. In the event of the provision for residence of a divorced wife having been
made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be
entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same
manner in which the tenant-husband could have done and certainly not higher or larger than that. She would be
liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.1
PERMANENT MAINTENANCE AND ALIMONY WHEN PETITION IN A MATRIMONIAL
CAUSE IS DISMISSED
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

In Chand Dhawan v. Jawaharlal Dhawan2, in the context of permanent maintenance and alimony, Punchhi, J.,
posed the question: Whether the payment of alimony is admissible without the relationship between the spouses
being terminated? It is submitted that what probably the learned judge meant to say was: could the matrimonial
court pass an order for permanent alimony and maintenance without granting relief in a matrimonial cause? When a
court passes a decree granting judicial separation or restitution of conjugal rights, it has power to make an order for
alimony and maintenance though relationship between the spouses is not terminated. Similarly, when a court
passes a decree declaring a marriage void, the court does not terminate the relationship as there as in fact no
relationship between the parties. Yet, the court has power to make an order for permanent alimony and
maintenance. However, apart from this, the substantial question is: Has the matrimonial court power to pass an
order for permanent alimony and maintenance, even when the main petition in a matrimonial cause is dismissed, as
the former proceedings are ancillary to the latter?

Indian laws of matrimonial causes and ancillary reliefs have been derived from English law, whether it is Hindu law,
Christian law or Parsi law or even the Special Marriage Act. Unfortunately, we kept ourselves abreast of English
matrimonial law upto the Matrimonial Cause Act, 1950 and thereafter went into oblivion of its later developments.
We are still refusing to take notice of these legislatively even though some of its beneficial provision do need our
attention. Take for instance, after 1950 English matrimonial law has made great strides. Alimony and maintenance
and custody maintenance and education of children are no longer ancillary matter. Once a matrimonial court is
seized of a matrimonial cause it continues to exercise jurisdiction on all the matters even if no relief is granted in the
matrimonial cause. But we continue to call maintenance and alimony and custody maintenance and education of
children as ancillary proceeding and want to interpret the word “ancillary” technically and mechanically as collateral
proceedings which cannot survive if the main proceedings are killed.

The Indian court when called upon to interpret the provision of the Indian Divorce Act, 1869, relating to maintenance
and alimony, adhered to the then position of English law and held that these proceedings are tagged with the main
proceeding in a matrimonial cause. But under thehindu Marriage Act, 1955 some of our High Court boldly took the
view that when the main proceedings are dismissed they still retain jurisdiction in so-called ancillary matters. But
these decisions now stand overruled by Chand Dhawan’s case.

These case are being reviewed to find out rationale of those as well as of Chand Dhawan’s case in the light of
constitutional mandate of social justice. These cases are being grouped under two groups: Ancillary proceedings of
maintenance and alimony—(1) in restitution of conjugal rights proceedings, and (2) in divorce and judicial
separation proceedings.

Powers of Matrimonial Court: Grant of Permanent Alimony

Any grant of maintenance under section 125 of Criminal Procedure Code, either to the respondent or to their
children will have no impact on the jurisdiction of the matrimonial court to grant such alimony as it considers
relevant to the facts and circumstances of the case and on facts also, the order of the trial court is not shown to be
in any way unreasonable or disproportionate to the means and assets of the appellant.1

Restitution of Conjugal Rights: Maintenance

In this instant case, it was held that if the husband has succeeded in obtaining a decree of restitution of conjugal
rights against the wife, it is implied that the wife was required to join the company of the husband at her matrimonial
home and therefore, there was no question of maintenance at least from the date of said order. It was further held
that if the wife was directed to be paid maintenance despite the said decree reluctance of the wife to join the
husband would be further strengthened and she would be encouraged to stay-away from the husband despite the
decree passed by the court. And the decree for restitution of conjugal rights would be rendered inoperative and for
such an act of the wife, the husband would be penalised to pay the maintenance to the wife who does not subject to
the decree passed by the court.2
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

Restitution of Conjugal Right’s Decree and Permanent Maintenance and

Alimony
Some challenge was thrown to the courts in cases where the courts had passed decrees in restitution of conjugal
right petitions and the wives presented a petition for permanent alimony and maintenance under section 25 of the
Hindu Marriage Act, 1955. Here there may arise three situations:
(a) when a decree of restitution is made but no compliance to the decree is made,
(b) when compliance is made to the decree of restitution of conjugal rights, and
(c) where restitution petition dismissed.

Should a court pass an order under section 25 of the Hindu Marriage Act, 1955 when it grants decree for restitution
of conjugal rights? In Mohinder Kumar v. Usha Rani1, the court passed a decree of restitution of conjugal rights in
favour of the wife and also passed an order under section 25 of the Act in her favour. Now, suppose the husband
obeys the decree and wife lives with him, what will be the relevance of the order? May be, if husband turns her out
again or deserts her she may fall back on the maintenance order. But the husband can take the plea that on the
fulfilment of the decree of restitution of conjugal rights, the ancillary order of maintenance under section 25 stood
abrogated. But suppose a decree is passed in favour of the husband (i.e. against the wife) allowing his petition for
restitution of conjugal rights. On the application of the wife court passes an order of permanent maintenance in her
favour as even on doctrine view there is no reason why it cannot be passed, since a decree is passed in the main
proceedings allowing the relief. Modern law does not take the view that such an order cannot be passed in favour of
the guilty spouse. In Surjit Kaur v. Gurdev Singh2, the Court passed a decree of restitution of conjugal rights against
the wife. On wife’s application for permanent maintenance and alimony, the Punjab and Haryana High Court
observed:

A decree for restitution of conjugal rights was granted against her on the finding that she had no reasonable excuse for
staying away from her husband. If such a decree was pending, then it appears to me that no court should grant her relief by
way of maintenance because that would defeat the very object of the decree for the restitution of conjugal rights. If, on the
other hand, as is urged by her, the appellant did go and live with the respondent, then also the decree having been
complied with, there is no decree pending and, therefore, permanent alimony cannot be granted under section 25 of the
Hindu Marriage Act of 1955.

Earlier in Karam Singh v. Daljit Kaur3, P.C. Pandit, J., took the view that under section 25 of the Hindu Marriage Act,
1955 court has power to pass an order of permanent maintenance and alimony in case it passes a decree for
restitution or any other relief. These cases were considered by the Division Bench in Ram Piari v. Piara Lal4. Suri,
J., said that the decree for the restitution of conjugal rights against the appellant may, therefore, imply that the pleas
generally available in defence of such a claim for restitution of conjugal rights and justifying the wife in living
separate from her husband had been decided against her. Anyhow, the circumstances of each case have to be
taken into consideration in judging the claim for maintenance and in determining the quantum or rate of
maintenance allowance. In this case after considering all the facts and circumstances of this case, the court passed
an order of permanent maintenance and alimony in favour of the wife. The court observed that a decree of
restitution of conjugal rights against the wife does not bar her claim for maintenance and alimony under section 25.

The third situation is where a petition for restitution of conjugal rights is dismissed, whether a court can pass an
order for permanent maintenance and alimony.

In Kadia Hari Lal Purshottam v. Kadia Lilavati Gokaldas1, the husband’s petition for restitution of conjugal rights was
dismissed. His appeal was also dismissed. In these proceedings the wife had filed a petition for permanent
maintenance and alimony under section 25 of the Hindu Marriage Act, 1955. The trial court accepted wife’s
application and granted her permanent alimony and maintenance. In appeal, the husband argued that looking to the
words “at the time of the passing of decree” the court would have jurisdiction to pass an order under section 25 only
when it passed a decree in the main proceedings. If it dismisses the main petition it could not make any order in
ancillary matters. On the other hand, wife argued that the words “any decree” would include an order dismissing the
petition as a decree is passed even then. Rejecting the contention of wife, the Gujarat High Court said, “The word
‘any’ which precedes the word ‘decree’ has been used having regard to the various kinds of decrees which may be
passed under the provisions of the Act.”
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

The question came before the Rajasthan High Court in Darshan Singh v. Jaso2. In this case also husband’s petition
far restitution of conjugal rights was dismissed by the trial court. However, on dismissing the petition, the court
granted Rs. 300 per month as permanent maintenance and alimony to the wife. On husband’s appeal, the wife
argued that dismissal of the main petition was not simply an order of dismissal but it is also a decree under section
28 of the Hindu Marriage Act, 1955. The wife reinforced her argument by saying that before the amendment of
section 28, all decrees and orders were appealable and it did not matter whether the dismissal of the petition
amounted to an order or decree. But after the amendment no order is appealable unless it is covered under the
exception of section 28(2). The argument was clinched by saying that since an order dismissing a petition was
appealable it was a decree, and therefore she was entitled to an order or permanent maintenance and alimony
under section 25. Rejecting wife’s arguments, the Rajasthan High Court distinguished the expression
“passing“occurring in section 25 from the expression “made” in section 28 and held that the expression “passing
any decree” has to be given a meaning that it is a decree granting the relief in the main proceedings; a decree as
contemplated in sections 9 to 13 does not include an order dismissing the main proceedings. In conclusion, the
court observed that whereas the words “passing” only means granting of any relief, the words “making any decree”
may mean both,i.e., granting or refusing to grant the relief sought.

The argument addressed by the wife to the Gujarat and Rajasthan High Courts have found favour with the Punjab
and Haryana High Court in Swaran Lata v. Sukhvinder Kumar3. It was a husband’s petition for the annulment of
marriage on the ground of fraud. The trial court allowed husband’s petition and passed an order for permanent
maintenance and alimony in favour of wife. On appeal, the High Court reversed the judgment of the trial court but
upheld the maintenance order, as it felt that the words “pass any decree” in section 25 covered the case where the
petition was dismissed. The court observed:

Some courts had taken decision under the law, as it stood before the amendment of 1976, that the dismissal of an
application is not a decree and, therefore, on dismissal an application under section 25 of the Act could not be granted to
an improvised spouse. At that time section 28 of the Act, which provided for appeals from the decrees and orders was
differently worded. All decrees and orders were made appealable and if dismissal of an application was not to be treated as
a decree it could be treated as an order and appeal lay therefrom and thus some distinction on that basis could be made.
But after the amendment of 1976 while all decrees have been made appealable under section 28(1) of the Act, the
appealable orders are only those which are passed under sections 25 or 26 of the Act. If dismissal of an application under
section 9 to 13 of the Act is not to be treated as a decree then it would not be appealable at all under the Act.

The High Court further fortified its arguments by saying that proceedings under sections 9 to 13 of the Hindu
Marriage Act, 1955 are made pari materia with proceedings before the civil courts and hence whether suit is
dismissed or decreed, the decree is appealable as such. Under section 2(2) of the Code of Civil Procedure, 1908,
“decree” means the formal expression of the adjudication conclusively determining the right of the parties with
respect to the matter in controversy. In view of this, whether “divorce is granted or not, the rights of the parties in the
petition are adjudicated and finally determined”1.

In divorce and judicial separation petitions High Courts have taken equally divergent views.

Divorce and Judicial Separation

In Shantaram Gopalset Narkar v. Hirabai,2 the trial court while dismissing husband’s petition for judicial separation
passed an order awarding permanent maintenance and alimony to the wife. On appeal, the High Court, reversing
this order, observed:

This is undoubtedly very unfortunate result, the conduct of the husband is blameworthy, in that, he is not making any
provision for the maintenance of his wife, the children and aged parents. Even if it is so, since the court has no jurisdiction
to grant maintenance under section 25(1) in the absence of a decree, the order made by the learned judge is to be set
aside.

In Shantaram Gopalset Narkar v. Hirabai,2a learned single judge of the Bombay High Court took the view that in
order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated
under the Hindu Marriage Act, 1955 and one of the decrees can be under section 10(1)(B). And when the petition
was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the
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court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1). In this case
there was no decree dismissing or allowing the petition. The petition was withdrawn.

In Minarani Majumdar v. Dasarath Majumdar1, a Division Bench of the Calcutta High Court ruled that an order
dismissing a petition of the husband for divorce under section 13 of the Hindu Marriage Act, 1955 is not a decree
within the meaning of section 25 and when no substantive relief is granted under sections 9 to 13, there is no
passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance
under the said section.

A learned single judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik2, relying on
the earlier decisions of that Court in Shantaram Gopalshet’s case and Kadia Hiralaler’s case, reaffirmed the view
that the expression “passing of any decree” only referred to the passing of any decree provided for in sections 9 to
13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for
the purpose of section 25 conferring jurisdiction on the matrimonial court to grant permanent alimony.

A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati3, denied the relief of
permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay
High Court and the Gujarat High Court above-referred to were taken in aid to reach that view.

In Shakuntala Bai v. Subarao,4the court expressed a different view. On the dismissal of husband’s petition for
divorce, the wife did not apply for maintenance under section 25, but filed a suit for maintenance under section 18
of the Hindu Adoptions and Maintenance Act, 1956. When the case went to the High Court, Vidya, J., said,obiter,
that he would have allowed wife’s application under section 25 had it been made5. According to the learned judge:
the word ‘decree’ in section 25 of the Hindu Marriage Act, 1955 can mean only a final order or adjudication upon the
rights of the parties to a petition under the Hindu Marriage Act, 1955 and it must, therefore, include a decree
dismissing the petition which is appealable in the same manner as the decree granting divorce or judicial separation
and restitution of conjugal rights or annulment of marriage. The learned judge added, “we are unable to find any
reason for holding that the decree which is contemplated in section 25 is only a decree granting the relief asked for
in a petition and not one dismissing a petition... But, however, it is described, there can be no doubt that section 25
provides a remedy by a simple application in addition to other remedies which may be open to a wife. Section 25
must be, therefore,considered partly substantive and partly procedural, whether, it is described as incidental or
ancillary or supplemental or complementary to the main proceedings under the Hindu Marriage Act” 1. (Emphasis
author’s). The court thus takes the view that section 28 is a substantive provision and a claim for permanent
maintenance and alimony can be made irrespective of the fact whether relief in main petition is granted or refused.
In other words, the ancillary relief is delinked from the main relief. It is an independent relief.

In Silla Jagannadha Prasad v. Silla Lalitha Kumari2, the Andhra Pradesh High Court has also taken the view that an
order for permanent maintenance and alimony can be made even when the petition in a matrimonial cause has
been dismissed. Amareshwari, J., observed:

The main object of section 25 of the Act is to provide some amount for the sustenance of parties who are unable to support
themselves. Under sub-section (1) the provision can be made “at the time of passing of the decree” does not mean only
when the suit or petition is allowed. A decree means the expression of an adjudication. The suit or petition may either be
dismissed or allowed. A relief may be given or refused. In either case, it is a decree. There is no reason to give a restricted
meaning to the expression “decree”. In this connection the words “any” is also significant. It indicates either allowing or
rejection3.

The same High Court has held that when substantive petition for divorce is rejected matrimonial court cannot make
orders under this section.4

A Full Bench of Punjab and Haryana High Court in Durga Das v. Tara Rani5, in a different context, while
determining the question whether a party to a decree of divorce could apply for maintenance under sub-section (1)
of section 25 of the Act after such decree has been granted, ruled that the proceedings for grant of permanent
alimony were incidental to the main proceedings and as such an application for alimony could be made even after
the grant of the decree for divorce.

In Darshan Singh v. Jaso6, a learned single Judge of the Rajasthan High Court made a distinction between the
expression “passing any decree” occurring in section 25 and the expression “decree made” under section 28.
According to the learned judge, the former expression meant granting any relief of the nature stated in sections 9 to
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13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree was to
mean granting any relief, and the making of any decree was to mean granting or refusing any relief.

Again in Swaranlata v. Sukhvinder Singh7, taking the view that when the rights of the parties stand determined
conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in
a decree and on the basis of that decree, the wife would be entitled to claim maintenance and permanent alimony
under section 25 of the Act. The Court observed that when the right of the wife to maintenance was assured under
section 125 of the Code of Criminal Procedure, 1973 and section 18 of thehindu Adoptions and Maintenance Act,
1956 and when that right of the wife was not being disputed, the Court, in order to avoid multiplicity of proceedings
could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. The court called
the objection of the husband to the jurisdiction as technical, and the maintainability of claim under section 25 was
upheld.

Interestingly, the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool1, taking a
similar view, based the decision on “necessity of the times” and opined that technicalities should not be allowed to
sway any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance
under section 25 to the unsuccessful spouse. Again in Surendra Singh Chauhan v. Mamta Chauhan2, the Madhya
Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes
of section 25 of the Act held that claim for permanent alimony was maintainable. The learned judge ruled that there
appeared to be no justification for curtailing the ambit of the words and to hold that a decree is not a “decree” for the
purpose of section 25 of the Act, though a “decree” for the purposes of section 28 of the Act. The court gathered the
intention of the Legislature of avoiding multiplicity of proceedings, so that every dispute between the parties,
particularly connected with matters like maintenance etc., should be settled in the same proceedings.

The Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain3 omitting the word “passing” from the
expression, interpreted the expression “any decree” to include an order refusing to grant matrimonial relief and on
that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.
Same was the view of the Andhra Pradesh High Court in Silla Jagannadha Prasad v. Silla Lalitha Kumari4.

This was the state of law when the case of Chand Dhawan v. Jawaharlal Dhawan5, came before the Punjab and
Haryana High Court. This was a petition for divorce by mutual consent presented to the Amritsar court of Additional
District Judge. Thereafter, the wife retracted and averred that her consent was obtained by deceit. This led to some
negotiations for reconciliation between the parties and wife rejoined the matrimonial home. The spouses made a
joint statement before the court and petition was dismissed on that basis as withdrawn. But reconciliation eluded the
parties and the husband who had established a roaring business at Ghaziabad filed a petition for divorce alleging
adultery on the part of his wife. The wife put in an application for interim maintenance. She was granted a monthly
sum of Rs. 10,000. Since the husband failed to honour the order of maintenance, the Allahabad High Court stayed
husband’s proceedings.

Not able to get maintenance in husband’s petition for divorce, wife moved the Amritsar Court under section 25 of
the Hindu Marriage Act, 1955 for grant of permanent alimony and maintenance. The Amritsar court passed an order
in favour of wife. The husband filed a revision petition in the Punjab and Haryana High Court. It should be noticed
that the matrimonial court has not passed a decree in this case, and therefore the revision petition was accepted.

This led the wife to knock the gate of the Supreme Court. Punchhi, J., after review of practically all the authorities,
rejected wife’s petition.

It is obvious that those High Courts who take the view that if no decree granting relief in a matrimonial cause has
been passed, maintenance and alimony order cannot be made, are inspired by the 1950 English law. Some High
Courts make a distinction between expressions “passing any decree” in section 25(1) and “decree made” in section
28 which provides for appeals from the decrees and orders made by the court in any proceedings under the Act
(Hindu Marriage Act, 1955). These courts hold the view that since these orders and decrees were appealable, and
since orders passed under section 25 are appealable, the court has jurisdiction to pass orders under section 25,
irrespective of the fact whether the petition is accepted or dismissed.

In the opinion of Punchhi, J., where a statute codifies the law, the courts as a general rule were not at liberty to go
outside that law just on the basis that before it enactment another law prevailed. It is submitted that prior to 1955,
there was no Hindu law matrimonial causes, and alimony and maintenance though under the judicially evolved law,
wife could claim maintenance while living separately from her husband. This law was codified by the Hindu
Marriage Woman’s Right to Separate Residence and Maintenance Act, 1946. (Thereafter this law enacted in
section 18 of the Hindu Adoptions and Maintenance Act, 1956). This could hardly be equated to ancillary relief of
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alimony and maintenance. His lordship maintains that under section 18(2) of the Adoptions and Maintenance Act,
1956 preserving her marital status and sustaining her marriage, the wife is entitled to claim maintenance, while
under the Hindu Marriage Act, 1955, in contrast, her claim for maintenance pendente lite is during the pendency of
a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, 1955 and her claim to permanent
maintenance or alimony is based on the supposition that either her marital status has been strained or affected by
passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage
stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be
affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of
that event, the court being seized of the matter, invokes its ancillary or incidental power to grant permanent alimony.
Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental of ancillary obligation
when moved by an application on that behalf by a party entitled to relief. The court further retains the power to
change or alter the order in view of the changed circumstances. But according to the learned judge if no decree is
passed granting the relief, no order for maintenance and alimony can be made.

Rejecting wife’s contention that if the claim of the wife for maintenance was otherwise justified on fact and law, the
procedures and the form should not stand in her way and let her cash on her claim over-ruling all objections. It was
asserted that the Amritsar Court had jurisdiction to grant relief, as asked for, because once upon a time it had seisin
of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn. The learned judge
observed:

This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial
intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought,
wishful thinking is no substitute and then not the court but the legislature is a blame for enacting a damp squib statute.

(emphasis author’s)

It is submitted that if we stick to the doctrinaire view of analytical jurisprudence and mechanical interpretation, the
learned judge is right1, but there is much substance in the observation of the Madhya Pradesh High Court and
others who hold that there was no justification for curtailing the ambit of the word to go on to hold that a “decree” is
not a decree for the purpose of section 28: this interpretation would avoid multiplicity of proceedings so that once
the jurisdiction of the matrimonial court is invoked, it retains the jurisdiction in all matters, irrespective of the fact
whether a decree granting or rejecting the relief is passed. This also brings to law at par with English law. Further,
the husband can claim permanent alimony and maintenance from his wife only under Hindu Marriage Act, 1955. To
the scholars of analytical school of jurisprudence this interpretation may appear to be strained, but if the courts of
free India are engaged in social justice and social engineering, the view held by those set of High Courts who hold
that the matrimonial court retains the jurisdiction once a matter is brought before it is preferable. One may submit
this is a socially just view. We all know that civil proceeding for maintenance take as much time as any other civil
proceedings, and matrimonial court takes much less time2. Why after all wife should be compelled to knock at the
gate of civil court or magistrate’s court. The matrimonial court once seized of the matter should continue to provide
relief to parties. It has been held that for grant of permanent alimony no specific application is necessary. Any grant
of maintenance under section 125, Code of Criminal Procedure is also of no consequence for matrimonial court to
grant such alimony. 3

Kinds of Ancillary Reliefs

The matrimonial statute postulate the following kinds of ancillary relief:—
(a) Orders of the maintenance of needy spouse: All statutes except the Hindu Marriage Act, 1955, provide for
the maintenance of the wife alone. It is only the Hindu Marriage Act, 1955 which stipulates maintenance for
either spouse,i.e., for the husband also1.
(b) Orders for custody, maintenance and education of children.
(c) Settlement of spousal property: In this regard the provisions in the matrimonial statutes are different.

The ancillary reliefs can be claimed not merely in the matrimonial cause of divorce but also in nullity, judicial
separation and restitution of proceedings. However, the Indian Divorce Act, 18692 contemplates of ancillary reliefs
only in the matrimonial relief of divorce and judicial separation3.
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Ancillary orders particularly relating to maintenance of the spouse or custody, maintenance and education of
children can be made at three stages:
(i) during the pendency of proceedings,
(ii) at the time of the passing of a decree in a matrimonial cause, and
(iii) subsequently at any time after the passing of a decree in a matrimonial cause.

But it appears that under the Indian Divorce Act, 1869 the court has no power to pass orders in ancillary matters
after a decree in a petition for divorce or judicial separation has been made, as the words in section 37 are that “on
any decree absolute declaring a marriage to be dissolved or any decree of judicial separation”4. All other
matrimonial statutes use the words “at the time of passing any decree” or “subsequently thereto.”

The right to claim maintenance, interim as well as permanent is an independent right available to the parties in
ancillary proceedings and is not controlled by the Hindu Adoptions and Maintenance, 19565, or by section 125 of
the Code of Criminal Procedure, 1973. The matrimonial court’s jurisdiction cannot be ousted on the plea that the
claimant is already getting maintenance under the personal law or under section 125 of the Code of Criminal
Procedure, 1973, though in fixing the quantum of maintenance the amount, the claimant is already getting, will be
taken into consideration.

The right of alimony maintenance under matrimonial proceedings is independent of other remedy which the wife
may have under the general provisions of law or her personal law.
PART II ALIMONY AND MAINTENANCE

Historical Background
The terms “alimony” and “maintenance” have come to our matrimonial law from English law. According to
Blackstone, alimony—a term which signifies maintenance—was a consequence drawn from one of the species of
divorce, that is a mensa et thoro. In case of separation the wife might sue for alimony against her husband if he
neglected or refused to make her an allowance suitable to their station in life. The case of husband’s refusal to
maintain his wife, was considered as injury to her, the court would redress it by assigning her a competent
maintenance, and compelling the husband by ecclesiastical censures to pay it1. Under the old English law, if the
marriage was void, no provision for permanent alimony could be made, though wife was provided alimony pendente
lite and expenses of the proceedings. Thus in early English matrimonial law, existence of wife’s right to support
(alimony) depended upon the existence of valid marriage between the parties, and alimony granted after the decree
of divorce a mensa et thoro represented the continuation of husband’s obligation to maintain his wife.

The second stage of development of law of alimony and maintenance is based on the principle of unity of
personality. In the words of Blackstone, under common law, marriage operated as an assignment of the wife’s
property rights to the husband. According to him “by marriage, the husband and wife are one in law, that is the very
being or legal existence of the woman is suspended during the marriage or at least is incorporated and
consolidated in that of the husband, under whose wing, protection and cover she performs everything.” Further, he
adds, “upon the principle, of an union of person of husband and wife, depend almost all the legal rights, duties and
disabilities that either of them acquire by marriage” so the personal property of the wife whether she possessed it at
the time of marriage or she acquired it after marriage belonged absolutely to the husband. This common law right of
the husband became fully established by the end of thirteenth century1. Since wife had no independent personality,
she was granted alimony when a decree of a mensa et thoro was passed, as wife absolutely lacked any means.
The common law doctrine of necessity was also invoked to help the needy wife, but even then no satisfactory
solution could be obtained. Then resort was made to the court of equity. Though there was some initial success, still
no satisfactory solution could be obtained. During this period the concept of woman’s separate property came to be
evolved.

Then came the Matrimonial Causes Act, 1857 and the matrimonial court began by making the decree of divorce
conditional on the husband’s setting some property for the wife, sufficient to produce enough income for her
support. The next step was taken by the Matrimonial Causes Act, 1886 which conferred power on the court to pass
orders on husband to pay to the wife reasonable weekly or monthly sum for her support and maintenance.

When the Indian Divorce Act, 1869 was passed it was based on the then existing English matrimonial law. Earlier
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when the Native Converts Marriage Dissolution Act, 1866 was passed, its section 28 empowered the court to award
alimony to the wife, if the wife had no sufficient separate property or means to maintain herself suitable to her
station in life and to prosecute or defend the suit. When other matrimonial statutes were passed, they were
influenced by the then existing state of English matrimonial law.

The Corpus Juris defines alimony as “the allowance required by law to be made to a wife, out of her husband’s
estate for her support either during the matrimonial suit or on its termination, where the fact of the marriage is
established and she proves herself entitled to a separate maintenance. Like maintenance, alimony connotes the
existence of a duty on the part of a person to provide for the need of another person or persons who is or are in one
way or the other related to, or dependent upon him”. The assumption underlying maintenance and alimony is that
the husband has to maintain his wife, not merely during the period she remains his wife, but also after divorce so
long as she does not remarry. This principle was later on extended to void and voidable marriages. Even today in
England and in other common law countries decree of divorce or judicial separation is usually accompanied by an
order of maintenance for the wife and children.

In our contemporary world, where women in a large number are employed in gainful employment or have their own
income, and where principal of equality of sexes is realized more effectively, a view is gaining ground that in case
where the husband has no income or insufficient income of his own to maintain himself, wife should also pay
maintenance to the husband on dissolution of marriage. In many countries this is now the law. Under the Hindu
Marriage Act, 1955 this is so. But this is not so under any other matrimonial statute in India including thespecial
Marriage Act, 1954.

Maintenance includes Provision for Residence in Matrimonial Home

The maintenance to necessarily must encompass a provision for residence. The maintenance is given so that the
lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must,
therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the
head. The provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It
may also be made by providing, for the course of lady’s life, a residence and money for other necessary
expenditure.1
(A) INTERIM MAINTENANCE

It is now a firmly established principle that the husband (wife also under the Hindu Marriage Act, 1955) is required
to pay for the maintenance of the wife during the pendency of the proceedings in a matrimonial cause as well as to
pay her expenses of the proceedings. This is known as interim maintenance. It is payable from the date of the
presentation of the petition (there is some controversy among our High Courts on this matter), till the termination of
the proceedings. All the matrimonial statutes contain a provision for interim maintenance.

Indian Divorce Act, 1869

Section 36 of the Act having the marginal title “Alimony Pendente Lite”, runs:

In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of
protection the wife may present a petition for alimony pending the suit.
Such petition shall be served on the husband; and the court on being satisfied of the truth of the statements therein
contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:
1[***]

Parsi Marriage and Divorce Act, 1936

Section 39 of the Act having the marginal title, “Alimony Pendente Lite”, runs:

Where in any suit under this Act, it appears to the court that either the wife or the husband, as the case may be, has no
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independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of
the wife or the husband, order the defendant to pay to the plaintiff, the expenses of the suit, and such weekly or monthly
sum, during the suit, as having regard to the plaintiff’s own income and the income of the defendant, it may seem to the
court to be reasonable.
2[Provided that the application for the payment of the expenses of the suit and such weekly or monthly sum during the suit,

shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as
the case may be.]

Special Marriage Act, 1954

Section 36 of the Act with the marginal title, “Alimony Pendente Lite,” contains the provision for interim
maintenance. It runs:

Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent
income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order
the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as,
having regard to the husband’s income, it may seem to the court to be reasonable.
3[Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during

the proceeding under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the husband.]

Hindu Marriage Act, 1955

Section 24 with marginal title, “Maintenance pendente lite and expenses of proceedings”, is different from
provisions under other statutes as under it either spouse can claim interim maintenance. The section lays down:

Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has
no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the
application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and
monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the
respondent, it may seem to the court to be reasonable:
1[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the

proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the
husband, as the case may be.]

In a case dealing with section 24, the court held that no set formula can be laid for fixing the amount of
maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some
scope for leverage can, however, be always there. The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay, having regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The
amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her
status and the mode of life she was used to when she lived with her husband and also that she does not feel
handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or
extortionate.2

Interim Maintenance
The basic differences between the statutes are the following:—
(a) Only the Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce Act, 1936 lay down that either
spouse may claim interim maintenance, while under other statutes only wife can claim it.
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(b) The Indian Divorce Act, 1869 embody the “one-fifth rule” of maintenance. This rule has not been enacted
under thespecial Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce
Act, 1936. Under the latter statutes it has been left to the discretion of the court.

In respect of other matters there is hardly any difference between all four statutes and in its practical working the
question of interim maintenance has been decided almost on the same principles under all the Indian matrimonial
statutes.

Interim maintenance may be claimed in all the four matrimonial causes, viz., nullity of marriage (both void and
voidable marriages) judicial separation, dissolution of marriage and petition for restitution of conjugal rights. This is
obvious from the opening words of the sections. The former two statutes use the words, “in any suit under this Act”,
while the Hindu Marriage Act, 1955 uses the words “in any proceedings under this Act”, therefore to claim that
marriage was void ab initio is no defence in these proceedings.1The Special Marriage Act, 1954 uses the words “in
any proceedings under Chapter V or Chapter VI.” (Chapter V deals with restitution of conjugal rights and judicial
separation, while Chapter VI deals with nullity of marriage and divorce).

The provision for interim maintenance includes:

(a) personal maintenance of the claimant, and
(b) expenses of the proceedings.

The maintenance can be claimed by the petitioner or the respondent in the main petition.

Who can apply for interim maintenance.—Under the Hindu Marriage Act, 1955 and the Parsi Marriage and
Divorce Act, 1936 the needy spouse, husband or wife, can apply for interim maintenance, while under other
statutes only wife can apply for interim maintenance. However, under no circumstances the mother-in-law
(husband’s mother) is entitled to maintenance under this section.2

In some early cases under the Hindu Marriage Act, 1955, on account of the following words in section 24, court may
“order the respondent to pay the petitioner the expenses of the proceedings”, it was argued that only the petitioner
in the main petition can apply for interim maintenance. The argument was rejected and it was held that the
expressions “petitioner” and “respondent” in the section 24 referred to the petitioner and respondent in the
application for interim maintenance3.

Both sections 24 and 25 of the Hindu Marriage Act, 1955 and other matrimonial statutes use expression “wife” and
“husband” denoting the persons who can claim maintenance. While under section 24 when interim maintenance is
claimed the parties are still husband and wife as their marriage has not been dissolved or annulled. But under
section 25 when maintenance and alimony are claimed after the decree, parties cease to be husband and wife. The
expression “husband” and “wife” are thus used in a descriptive sense in order to denote a party to marriage and in
regard to jural relationship between the two when application or petition for maintenance is made1. Therefore, the
plea that wife had a previously subsisting marriage is no bar against awarding maintenance under section 24.
Whether wife is legally wedded or not cannot be proved without evidence.2 But factum of marriage whether void or
valid has to be proved for grant of maintenance.3 Terms ‘husband’ or ‘wife’ mean the parties who have gone
through a ceremony of marriage irrespective of the fact whether marriage is valid or subsisting. Court can make
order of maintenance under section 25 in proceedings at the instance of second wife4.

Under the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 the
applicant has to show that she has no independent income sufficient for her maintenance and support and she has
no means to meet the expenses of the proceedings. On the other hand, under the Indian Divorce Act, 1869 she is
required to establish her need. Under the Act interim maintenance is to be granted as a matter of course. The
words in section 36 of Act are: “In any suit under this Act... The wife may present a petition for alimony pending the
suit, and the court on being satisfied of the truth of the statements therein contained, may make such order on the
husband for the payment to the wife of alimony pending the suit as it may deem just.” Under the section there is no
specific mention of expenses of the proceeding, but it is submitted that the words used therein are wide enough to
include expenses of the proceedings.

Once the averments of the applicant that she has no sufficient means to maintain herself are established, prima
facie, the court will pass an order requiring the other party to pay to the applicant some monthly or periodic
payments for her maintenance and some lump sum amount to meet the expenses of the proceedings. It is the
bounden duty of the court to decide interim application as expeditiously as possible and in every case before the
trial, or in any event before the decision in the petition5. In fact, once it is prima facie established that the applicant
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has no sufficient means for her maintenance and support, the court should pass an order for interim maintenance
as a matter of course6.

It should be noticed that under the provision emphasis is on independent income1. It is immaterial that the applicant
has some independent property, movable or immovable. If the property does not yield any income it is of no
consequence2. Obviously, if property yields income it would be taken into consideration. The fact that the applicant
is likely to inherit some property is also immaterial3. Similarly, goodwill or charity of relations and friends cannot be
taken into consideration for the grant of interim maintenance and alimony4.

Interim maintenance and discretion of the court.—It has been stated earlier that once a prima facie case is
made out by the petitioner, the court will award interim maintenance as a matter of course. However grant of
maintenance is discretionary relief, but discretion is judicial discretion5. It is exercised on sound legal principles and
no court can act capriciously or arbitrarily. Even when the discretion of the court is challenged the court has power,
and it should grant, interim maintenance. Thus in Surendra Kumar Asthana v. Kamlesh Asthana6, in wife’s petition
the husband raised the question of jurisdiction. He averred that he was living in Teheran and the Hindu Marriage
Act, 1955 did not apply to him. Nonetheless, on wife’s application for interim maintenance, the court granted her a
sum of maintenance pendente lite7.

In a case for maintenance, the husband failed to produce balance sheet etc., for showing his real income. The
husband had 25 years of standing as a professional architect. The business carried on by wife from her house was
not found to be lucrative or enough to maintain herself and the two growing sons who were pursing studies in
prestigious institutions. The maintenance allowance granted by trial court to one of sons was increased from Rs.
1500 to Rs. 3000 p.m. The wife was also granted Rs. 1500 p.m. as maintenance allowance. The maintenance
allowance of second son, however, was maintained at Rs. 2500 p.m.8

When to apply and court’s duty.—An application for interim maintenance can be made at any time during the
pendency of the proceedings. At the earliest, it can be made at the time of filing of the petition if petitioner claims it.
In the case of the respondent, earliest it can be made after the service of summons on him. At the latest it can be
made at any time before the petition is granted or dismissed. Prudence demands that an application for the interim
maintenance should be made at the earliest opportunity. When wife is respondent she can seek the grant of interim
maintenance before she files her written statement. She cannot be asked to submit her written statement till her
application for interim maintenance is disposed of.1

In Chhaganlal v. Sakkha Devi2, the Rajasthan High Court observed that an application under section 24 of the
Hindu Marriage Act, 1955 (and for that matter an application for interim maintenance under any other matrimonial
statute) must be decided as expeditiously as possible but in any case before deciding the main application. The
court added that decision on an application under section 24 after deciding the main petition would defeat the very
purpose of interim arrangement for the support of the spouse during the pendency of her proceeding. The court
held that it is its duty to decide the application for interim maintenance promptly3. A decision rendered on the
application of interim maintenance after deciding the main petition is not proper4.

Enhancement of Interim Maintenance

The court is duty-bound to dispose of pending application for enhancement of maintenance, before suit for divorce
is decided.5

Divorce by Mutual Consent

The court held that the waiting period of six months after the date of divorce, though not mandatory; cannot be
dispensed with in the instant case. Parties in this case after getting divorce by mutual consent, filed for second
marriage which was within the period of one month when they got divorce and hence sought for dispensation with
requirement of six months’ waiting period. The court held that policy of liberalisation in matter of granting divorce
was not yet recognised in Hindu law and hence, turned down the petition.6

Alimony Pendente Lite

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Denial of factum of marriage by husband on the ground that his wife had spouse living from existing earlier
marriage is no bar to grant alimony pendente lite to wife.7

An interesting question arose in Arti Singh v. Lt. Col. Kanwar Pal Singh8. In her petition for judicial separation on the
ground of her husband’s cruelty, the wife put in an application for interim maintenance. Husband in his defence
denied any valid marriage with the wife. The trial court felt that till the issue of validity of marriage was decided it
had no jurisdiction to decide the application for interim maintenance. On appeal the Delhi High Court disagreeing
with the trial court, held that jurisdiction to grant maintenance arose as soon as a petition in a matrimonial cause
was made. Other High Courts also have expressed this view1.

High Courts differ on whether maintenance pendente lite could be given with the start of the proceedings, or
whether it could be given only from the date of the application. In Sohan Lal v. Kamlesh2, a Division Bench of the
Punjab and Haryana High Court has taken a fairly broad view which accords well with the social conditions. The
Bench rightly observed that the object of section 24 is that an indigent spouse should not suffer during the
pendency of the proceedings, and therefore, it is the duty of the court to decide the application expeditiously.
However, the Bench added, if the application under section 24 is not decided during the pendency of the
proceedings on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole
purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of the main
petition it does not survive. In view of this, the court held that if the main petition was dismissed or decided finally,
the undisposed application remains pending decision, and if appeal or revision was filed, then also the application
remains pending and a decision on the application could be made at any stage, even after the termination of the
appellate proceedings, and thus the applicant would be entitled to maintenance during the pendency of the
proceedings3. In Nalini v. Velu,4 the Kerala High Court took the view that maintenance pendente lite could be
ordered for the entire period when proceedings are pending even when application for interim maintenance was
made at the appellate stage. It quoted with approval the following passage from the decision in S. Radhakumari v.
K.M.K. Nair5:

Though in some cases the view is taken that the grant should commence from the date of application under section 24, I
am unable to share this view. The section does not contain any limiting provision. The object of the enactment does not
justify the court imposing on itself any such fetter, when the Parliament in its wisdom has not chosen to do so... I would
accordingly direct that the payment will be effective from the date of service of summons of the main petition for divorce on
the wife.

On the other hand, in Rachna Sharma v. Chandra Mohan Sharma6, R.A. Mishra, J., of the Allahabad High Court
was of the view that if a transfer application is filed by the husband, the wife is not entitled to any amount for
defending these proceedings. The judge seems to be right when he said that one can claim maintenance pendente
lite and expenses of the entire proceedings and not for each and every application and step taken in those
proceedings. But the judge was clearly wrong when he said that a transfer application under section 24 of the Code
of Civil Procedure, 1908 is not part of the matrimonial proceedings. Whatever proceedings are filed by the parties
during the pendency of the main petition for a matrimonial relief are part of the matrimonial proceedings whether
they are filed under a specific provision of the Hindu Marriage Act, 1955 or the Code of Civil Procedure and
whenever some such additional proceedings are initiated, the indigent party is entitled to additional expenses for
the proceedings he or she has incurred some additional expenditure. Thus such grant is not individually for each
and every application or step, but for additional expenses incurred on account of these proceedings.

A question arises as to the data for payment of alimony pendente lite - whether it should be date of application or
date of order. No provision in the section as to the date. It would depend upon the facts of each case and the
discretion of courts on the said facts.1

During appeal, revision and other proceedings.—When an appeal is filed against the decree of the trial court,
during the pendency of the appeal interim maintenance can be claimed. In any case, interim maintenance can be
allowed from the date of service of summons both by the trial court or appellate court irrespective of the fact when
application is made2. In Tatikonda Subba Rao v. Tatikonda Anasuyamma3, the Andhra Pradesh High Court has
expressed the view that when an appeal is filed a fresh application for maintenance has to be made to the appellate
court for interim maintenance. The appellant cannot have it on the basis of her application in the trial court. It is
submitted that this view is not correct. The words in section 24 of the Hindu Marriage Act, 1955 and under other
matrimonial statutes are “during proceedings”, and it is a well-established view that an appeal is a continuation of
the proceedings filed in the trial court4. It is immaterial whether the decree is ex parte or otherwise. Interim
maintenance can also be claimed during the period when an application for setting aside an ex parte decree is
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

pending5. In Amrit Lal Nehru v. Usha Nehru,6the Jammu and Kashmir High Court, has held that interim
maintenance cannot be granted in cases where relief is sought under the Code of Civil Procedure, 1908 (for
instance under Order IX, rules 4, 7 and 9), such an application for restoration of a petition dismissed in default or an
application for setting aside an ex parte decree or a revision petition, because, in the opinion of the High Court,
proceedings are not under Hindu Marriage Act, 1955. It is submitted that this decision is wrong and is in conflict with
the decision of the Full Bench of the Andhra High Court, in Jalasutram Annapurnamma v. Jalasutram Ramakrishna
Sastry1. The provision of the Code of Civil Procedure, 1908 has been expressly made applicable to proceedings
under all the four matrimonial statutes.

The appellate court should not interfere with the trial court’s order of maintenance, unless the order is found to be
callous or capricious2.

Order of Maintenance Pendent Lite:Appealable Order

The order passed by the subordinate court under section 24 of the Hindu Marriage Act, 1955, fixing maintenance
pendent lite in the divorce proceedings is an order having the quality of finality. It may have nothing to do with the
ultimate order, which may be passed by the court in a matter relating to section 13 of the Hindu Marriage Act. In fact
as was held it was a separate proceeding within the proceeding. Hence, the order passed under section 24 of the
1955 Act could not simply be called an order of an interlocutory nature as it is a judgment. Therefore, it was finally
held that an appeal under section 19(1) of the Family Court Act of 1984 was maintainable against an order passed
under section 24 of the Hindu Marriage Act of 1955.3

Order of interim maintenance can be made at any time.—An order on the application for interim maintenance
can be made at any time before the proceedings terminate in the main petition. Wife’s right of interim maintenance
begins with the filing of the main proceedings and continues till the petition is decided. In some cases, it has been
held that maintenance can be claimed only from the date of the application4, while in Hema v. S. Lakshmana Bhat5,
the Kerala High Court expressed the view that maintenance pendente lite is payable from the date of summons in
the main petition are served.

It may be emphasised that since interim maintenance is payable during the period the proceedings remain pending
in the court, the award of maintenance is not dependent upon the fact whether the petition is accepted or rejected.
Thus, if the proceedings on the main petition terminate and the application for interim maintenance remains
pending, the court still has jurisdiction to pass an order for interim maintenance. In Devki v. Purshotam Kewalia6,
the Rajasthan High Court rightly said that the liability to pay interim maintenance could not be avoided in respect of
the period during which the petition was pending, and subsequent dismissal of the petition could not exonerate the
non-claimant from the liability already incurred. Sometime it happens that an application for interim maintenance
remains pending in the court till the conclusion of proceedings. In such a case, the Punjab and Haryana and Kerala
High Courts hold that the court retains jurisdiction to dispose of the application1.

Some other interesting situations also arise. After the respondent-wife has applied for interim maintenance, the
husband may withdraw his petition. Whether he can thereby defeat the claim of the wife. He cannot defeat the
application for interim maintenance and court can still pass orders for interim maintenance. There may be another
situation: the petitioner against whom order for interim maintenance has been passed, may refuse to obey the order
and yet may want to proceed with the petition. In such a situation the court may stay all proceedings till he pays,
and if the person against whom order for interim maintenance has been passed happens to be respondent, then the
court may strike out his defence2. If such a defaulter spouse has filed an appeal, then the court may dismiss his
appeal3.

How to apply: Application for interim maintenance.—The rules framed under the statutes lay down the details
that should be furnished by the applicant applying for interim maintenance.

The proceedings for interim maintenance are initiated by an application made to the matrimonial court where the
main petition has been filed. The rules provide that in the application, the applicant should state his average
monthly income as well as of the other party, source of these incomes, particulars of movable and immovable
properties owned by either party, the number of dependents and their age and relationship. Every application must
be supported by an affidavit. However, absence of affidavit or non-furnishing of the aforesaid details in the
application does not affect the jurisdiction of the court4 and the court may direct the parties to furnish all particulars.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

Factors for Interim Maintenance

In the matter of making an order for interim maintenance, though the powers of the court is wide, the discretion of
court must be guided by the criterion provided under section 24 of the Hindu Marriage Act, 1955, namely the means
of parties and also after taking into account incidental and other relevant factors like social status, the background
from which both the parties come from and the economical dependence of the petitioner.5

Consideration for granting maintenance and quantum of maintenance.— Under the Hindu Marriage Act, 1955,
thespecial Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 the main consideration before the
court is that the claimant has no independent income for her support. The emphasis is on independent income1.
Under the Indian Divorce Act, 1869 there is no such requirement.

The provision of interim maintenance and expenses of the proceedings in all the Indian matrimonial statutes except
the Indian Divorce Act, 1869 does not specify the quantum of maintenance and expenses of the proceedings
obviously it does not mean bare maintenance. The court has discretion to fix the amount of maintenance, but it is
judicial discretion exercised on certain well-established principles2. The provision clearly states that the court may
award to the applicant such sum every month, until the petition is finally disposed of as the court in the
circumstances of the case considers reasonable. In fixing the quantum of maintenance the court takes into account
the income of both the parties, their status and other circumstances3. It should be noticed that the amount of
maintenance is to be paid monthly during the pendency of the proceedings and the expenses of the proceeding
may be paid in lump sum.

‘One-fifth’ Rule.—Proviso in section 36 of the Indian Divorce Act, 1869 lays down that alimony pending suit shall in
no case exceed one-fifth of the husband’s average net income for three years next preceding the date of the order.
A similar provision exists in the Parsi Marriage and Divorce Act, 1936. In other matrimonial statutes no such limit
has been laid down. However, in some cases, coming under these statutes it has been held that in the absence of
special circumstances, maintenance should be allowed at one-fifth of the net income of the respondent4. But in
some cases it has been observed that no arithmetical rules should be adopted5. In Dinesh Gijubhai Mehta v. Usha
Dinesh Mehta6, the Bombay High Court has criticised this rule. Deshpande, J., observed that he was unable to
trace any rational basis of the one-fifth rule, even when wife’s needs and capacity of the husband warranted
awarding large amount. This amounted to almost rule of thumb. Such a rule in the Indian Divorce Act, 1869 might
have been based on the then notions and concepts as to women’s status and position in society. But in our
contemporary society this rule is not only unreasonable and irrational but also cuts at the very root of the principle of
equality of sexes. It militates against the concept of reasonableness, which is the basis for awarding interim
maintenance. In this case husband was living with his father having six members including the wife. The net income
of all the members of the family was Rs. 2,020. The court fixed Rs. 350 per month as the amount of maintenance
for the wife. Since the share of each of the members of the family came to Rs. 3701. In Radhikabai v. Sadhuram
Awatrai2, the Madhya Pradesh High Court evolved a different formula. The court said that after making an estimate
of the average monthly income of the non-claimant and after allowing for uncertainties it should be divided by the
total number of dependents including the wife. The figure so arrived at should be allowed to the wife as her monthly
allowance. It is submitted that the discretion of the court should not be hampered by any rigid formula, and the court
after considering all the circumstances, should fix an amount of maintenance which it considers to be reasonable3.

In this regard courts in cases coming under the Hindu Marriage Act, 1955 continue to express divergent views.

Following English decisions, some Indian courts have expressed the view that generally one-fifth of the net income
of the husband (or wife) should be awarded as interim maintenance to the claimant spouse. But even in England
this is no longer a hard and fast rule, and by and large the Indian courts have departed from this view. The Delhi
High Court rightly observed in Dev Dutt Singh v. Rajni Gandhi4 that what is proper proportion of the husband’s
income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the
circumstances of a particular case. Section 24 of the Hindu Marriage Act, 1955 is not a code of rigid and inflexible
rule arbitrarily ordained, and to be obeyed. It leaves everything to the discretion of the court. It does not enact any
mathematical formula of one-third or any proportion. The word “support” in section 24, of the Act is of wide import,
and support has to be according to the standards of the parties, their wealth and the environment to which they, in
their married state, have been used to5.

In L.R. Rajendran v. Gajalakshmi6, the wife in her application for interim maintenance and expenses of the litigation
in the husband’s petition for divorce, on the ground of desertion and cruelty averred that she had no means to
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maintain herself and was living with her parents who were also people of modest means, while her husband was
earning a salary of Rs. 800. The trial court fixed a sum of Rs. 150 as interim maintenance and awarded Rs. 250
towards expenses. On appeal, it was strenuously argued before the High Court that the amount of interim
maintenance could not be more than one-fifth of the net income of her husband and reliance was placed on section
36 of the Indian Divorce Act, 1869 and on Prasana Kumar Patra v. Sureswari Patrani1, where the Orissa High Court
had taken this view. Rejecting this argument Swamikkannu, J., rightly observed that while fixing the amount not only
the net or disposable income of the respondent should be taken into account but other circumstances as the ability
of the parties to work and earn their financial condition, their status and position in life should also be taken into
account2. The court rightly added that the income of the father or any other relation should not be considered. Once
the court decided to award maintenance, the quantum of maintenance was in the discretion of the court, though
discretion had to be exercised judicially, to serve the interests of justice. Section 24 of the Hindu Marriage Act, 1955
sets no limit to maintenance to be awarded and it empowers the court to award such sum as it may seem
reasonable. It is submitted that under section 24 of the Act in awarding maintenance pendente lite, the court is
concerned only with two matters: (i) the claimant has no independent income sufficient for his or her support and
necessary expenses of the proceedings, and (ii) the means of the parties for fixing the quantum of maintenance.
The nature of litigation, the conduct of the claimant, etc., are not to be taken into account.

In Rishi Dev Anand v. Devinder Kaur3, the trial court fixed Rs. 500 per month as maintenance. The husband took
medical leave without pay and requested the trial court to exempt him from payment of maintenance during the
period he was on leave without pay. But the trial court ordered him to pay it at the rate of Rs. 300 per month. On
appeal, the High Court rightly held that the order to pay maintenance during the period the husband was on leave
without pay was improper, particularly when it was shown that the leave was taken bona fide and not with a view of
defeating wife’s claim of maintenance.

In Rajambal v. Murugappan4, neither party was earning anything and both were students maintained by their
respective parents. In the husband’s petition for restitution of conjugal rights, the wife claimed interim maintenance
and expenses of the litigation. The wife had been living separately from her husband and was pursuing her MBBS
course without the knowledge of the husband. She did not file any document to show that her husband had any
independent income or that he had any share in his father’s estate. In these circumstances the trial court held that
the wife was not entitled to any interim maintenance or expenses for litigation. This order was upheld by the High
Court. Swamikkannu, J., observed that wife’s right for maintenance was an incident of the status of marriage, but
the award of maintenance under section 24 of the Hindu Marriage Act, 1955 was in the discretion of the court
having regard to the means of the parties.

Dr. Utpal Kumar Banerjee v. Majula Debi Banerjee1, is an interesting case. The wife’s income was more than that of
her husband and yet she claimed maintenance on the plea that her expenditure was more than her income and
husband should pay her to meet the deficit. The Court refused to concede to her request. Similarly, in Pradeep
Kumar Kapoor v. Shailja Kapoor2, the Delhi High Court said that the trial court should not award maintenance to the
wife in such a manner as her monthly income exceeds that of her husband. In these cases the court was called
upon to expound the meaning of the word “support” as given in section 24 of the Hindu Marriage Act, 1955. It
should be noticed that section 24 lays down that the spouse who has no sufficient means for his or her “support”
and for meeting expenses of the proceeding, while section 25 uses two words “maintenance and support”. The
Hindu Marriage Act, 1955 does not contain any definition of maintenance or support. Section 3 of thehindu
Adoptions and Maintenance Act, 1956 defines “maintenance” as,inter alia,“provision for food, clothing, residence,
education and medical attendance and treatment”. Counsel for the husband against whom an order of maintenance
was passed, argued that the word “support” is not equivalent to maintenance as section 25 of the Hindu Marriage
Act, 1955 uses both expressions “support” and “maintenance” and therefore support is less than maintenance, only
an amount for her bare support,i.e., food and clothing. Wadwa, J., rejecting this argument said that the word
support is equivalent to maintenance and under sections 24, 25 and 26 of the Hindu Marriage Act, 1955 two would
have the same meaning as given in section 3 of thehindu Adoptions and Maintenance Act, 1956. The learned judge
said that proceedings for interim maintenance were undoubtedly summary but not arbitrary. In deciding the
application for interim maintenance the court should take into account the following:—
(i) position and status of the parties;
(ii) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment,
education and the like);
(iii) income of the claimant;
(iv) income of the opposite party; and
(v) number of persons opposite party is obliged to maintain.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

It is now well-established that in fixing the quantum of interim maintenance the court should consider income of the
parties, the need of the claimant having regard to the status of the parties, their family background, the standard of
life to which the claimant has been accustomed to, legal and other obligations of the non-claimant and other
relevant circumstances. This view has been affirmed in Hema v. S. Lakshmana Bhat3. The Court rightly said that
the criterion of one-fifth of the husband’s average net income for three years as laid down under section 36 of the
Indian Divorce Act, 1869 was not applicable under section 24 of thehindu Marriage Act, 1955. The Court added that
with the concept of equality of sexes, any such formula is outmoded.

It is necessary that the trial court should take into consideration the actual income of both the parties, where the
court’s order in fixing the amount of maintenance was passed on the basis of income which the husband could earn
by application of industry, such an order is illegal1. But an order passed by the trial court after considering all
relevant aspects of the matter should not be interfered on an appeal2. Where a maintenance order has been
passed with the consent of the husband, he cannot get it modified just because wife has got a temporary job3. In
Renu Jain v. Mahavir Prashad Jain4, on wife’s application for interim maintenance, husband suppressed his
income. He was living in joint family, but he did not produce account book, ledgers and other documents. The court
said in such cases the wife’s evidence about husband’s income should be taken into consideration and properties
of husband and the income of the joint family whose member he should also be considered.

In P.S. Krishna Murthy v. P.S. Umadevi5, the Andhra Pradesh High Court comparing the provisions of the Indian
Divorce Act, 1869 and thehindu Marriage Act, 1955 said that a reading of the provisions of section 24 of the Hindu
Marriage Act would adumbrate that the condition precedent for an application thereunder is that the spouse, either
wife or husband has no independent income sufficient for his or her maintenance and of necessary expenses of
litigation. In determining the quantum, regard should also be had to the petitioner’s own income and the income of
the other spouse in computation of the monthly maintenance payable by the other spouse and the matter is left to
court’s discretion to determine the quantum on the facts and circumstances in such case. It gives equal right to
either spouse to claim maintenance. Section 36 of the Indian Divorce Act, 1869 gives right to alimony pendente lite
only to the wife where the court is satisfied of the statements contained in her petition, obviously of the income of
the husband. The court then may order payment of alimony to the wife pending the suit. However, the maximum is
one-fifth of the husband’s average net income for three years next proceeding the date of the order and the liability
would continue to subsist till the date the decree is made absolute or confirmed, as the case may be, by the
appellate court viz., the High Court. Therein the right is confined to the wife and that too to a maximum of one-fifth
of the husband’s net income. Here both may be at disadvantage. Though the wife may have sufficient income for
her maintenance, yet she can claim maintenance. That is not the case under section 24 of the Hindu Marriage Act,
1955. The Christian husband is denied of similar right of Hindu husband. He can complain of discrimination. Section
24 of the Hindu Marriage Act, 1955, as a matter of fact is more beneficial to both spouses, but whereas section 36
of the Indian Divorce Act, 1869 confers right only on the wife and that too for a fix amount. Section 24 of the Hindu
Marriage Act contemplates to take into account not merely the income of the petitioner, but also the own income of
the spouse claiming maintenance from the other spouse, be it husband or wife, as the case may be. Therefore, it is
more reasonable and beneficial to the parties and there is no invidious discrimination or undue disability to the wife
or husband.

In Sadhana Devi v. Bijendra Kumar,1 the husband was pursuing his studies and had no independent income. The
wife was held not entitled to maintenance.

Meaning of term “income” in section 24.—In Gita Chatterji v. Prabhat Kumar Chatterji2, the Calcutta High Court
said that the word “income” in section 24 of the Hindu Marriage Act, 1955, even in its widest amplitude could not
include the capital assets like lands and hereditaments, and could only include the return accruing from those
assets. The court further said that it would be perfectly legitimate to infer that the Legislature intended a departure
and had deliberately used the word “income” instead of the word “means” to exclude all means not yielding any
income. In section 25 of the Hindu Marriage Act, 1955 and section 23(2) of thehindu Adoptions and Maintenance
Act, 1956 uses two words “income” and “property”, while section 24 of the Hindu Marriage Act, 1955 uses one word
“income”. This conspicuous omission in the expression “property” in section 24 was deliberate and, therefore, the
expression “income” in section 24 would not include other properties and assets. Therefore, in ordering
maintenance pendente lite under section 24 the court shall have regard only to the income of the applicant and not
to her or his assets or property not presently yielding any return. In short, in assessing the income of the other party
for the purpose of awarding interim maintenance to the applicant, the non-income yielding property is not to be
taken into account.

Under section 24 of the Hindu Marriage Act, 1955, the applicant claiming interim maintenance has to show that she
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

or he had no sufficient independent income to support her or him. The property which the applicant got under the
will of the father and which was still the subject-matter of partition suit between the applicant and wife and her
brother could not be taken into account. It could not be called income-yielding property3.

Onus of proof of income.—It is the duty of the husband to disclose his income when his wife had made an
application for interim maintenance. In Chitra Sengupta v. Dhruba Jyoti Sengupta4, invoking section 106 of the
Indian Evidence Act, 1872, the court observed that “monthly income of a husband may not very often be within the
knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are
living apart for a considerably long period, the wife staying in India and the husband in the United Kingdom. In a
case like this the amount of the husband’s income would be within the special knowledge of the husband and when
the issue before the court is the amount of such income, the onus under section 106 of the Indian Evidence Act,
1872 would be on the husband to disclose the same and if he fails to do so without any good reasons, the court
would be entitled to presume against him and to accept the allegations of the wife as to the amount of income
derived from such reasonable sources as would be available to her. More so where, as here, the husband does not
even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter
behind legal technicalities1”.

Where husband claims that wife is earning more than him onus is on him to prove it.2

Conduct of the claimant.—In granting interim maintenance conduct of the parties or any other matter is not
material, and in our submission the case taking a contrary view have not been correctly decided. Only and the sole
consideration is that the claimant has no sufficient independent income to support her. In Lallubhai Keshavram
Joshi v. Nirmalaben Lalluram Joshi3, the Court observed that matrimonial misconduct of the applicant is no basis for
rejecting her claim for interim maintenance. In Dwarkadas Gurumukhdas Agraval v. Bhanuben4, the Gujarat High
Court again said that under section 24 of the Hindu Marriage Act, 1955 the right of the wife unable to support
herself for interim maintenance and for litigation expenses should be made available to her without any reference to
her conduct. Allegation of adultery and any other matrimonial misconduct are irrelevant at the stage of awarding
interim maintenance. Such exterior considerations should not prejudice her claim. In Debnam v. Debnam5, a case
under the Indian Divorce Act, 1869, wife’s claim for interim maintenance was opposed by the husband on the
ground of wife’s adultery. Husband’s petition for divorce was based on the adultery of the wife. Again, the Madras
High Court said in awarding interim maintenance, such consideration are irrelevant. This appears to be consistent
view of our courts6.

Similarly being HIV+ is no ground to refuse maintenance.7

Similarly, non-consummation of marriage is no ground to deny interim maintenance.8

It is the income of the husband and his status that is to be taken into consideration and not the income and status of
his father9. In Radhikabai v. Sadhuram Awatrai1, the court observed that wife could not be left to the charity or
bounty of her relations, as husband’s obligation to provide maintenance to his wife could not be obliterated just
because the wife was being looked after by her father or other relations. In this case the husband alleged that wife
being educated has capacity to earn but she did not care to earn. He also said that she has ornaments which could
be converted into cash. The Madhya Pradesh High Court rejected these arguments and said that if the wife had no
income sufficient to support herself, her husband could not get away with his obligations by saying that the wife had
potential to earn. The consideration that father of the wife can support her is also immaterial2. Her willingness or
unwillingness to return to her husband is also an irrelevant consideration3.

Income sufficient for support.—The words “income sufficient for her support” in section 24 of the Hindu Marriage
Act, 1955 do not mean only such amounts as will be sufficient to unable her to have existence at subsistence level,
but will cover such amount as will be necessary for necessities suited to status and station which the wife enjoyed
when she lived with her husband4.

Expenses of the proceedings.—It has been seen that during the pendency of the proceedings, the wife can not
only claim maintenance but also “necessary expenses of the proceeding”. The consideration for awarding
“necessary expenses of the proceeding” or “suit” (the Parsi Marriage and Divorce Act, 1936 uses the word “suit”,
both expression have the same meaning), mean that the applicant has no sufficient means. Obviously the purpose
of the provision is to ensure that apart from maintenance, the claimant is able to defend or prosecute the
proceeding, and is not handicapped on account of paucity of funds5.

The “expenses of the proceedings” is the expression of wide import and it would include fees of a reasonably
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competent lawyer6, court fee, process fee and expenses of the witness, expenses for getting prepared pleadings
including typing or zeroxing charges7, and the like. Such expenses are granted in lump sum at the first instance8.

Another question may arise: Whether claimant can apply for the additional expenses in case she has incurred them
or need to incur them. In Priti Parihar v. Kailash Singh Parihar9, the question came before the Rajasthan High
Court. Certain expenses were granted to the wife. She claimed additional expenditure to the tune of Rs. 765. The
District Judge rejected the application as he felt that once the expenses for the proceedings were granted they
could not be enhanced. On appeal the High Court reversed the order, and said that if the litigation proceeded
normally the initial amount fixed might be enough but if need arises later on, the Court has jurisdiction to grant the
same1. The Court observed:

The expression employed in section 24 of the Hindu Marriage Act, 1955 is ‘the necessary expenses of the proceeding’. In
order to allow such expenses the court will first determine whether as a question of fact some expense was incurred. Then
will arise the question whether such an expense was necessary. The second question is not always easy to answer but it
will be regulated by the circumstances of each case. A litigant often acts on the advice of the advocate. If the advocate
advises a certain step or proceeding the litigant helplessly follows such an advice and incurs the expense. Unless that
advice by the advocate lacked care and caution or was merely intended to delay the proceedings or to harass the husband,
it will be difficult to call it unnecessary. Whether the expense was necessary or not is sometimes judged by the result. It is a
helpful factor but it could not be said to be always decisive. Likewise a husband should not be saddled with mounting
expenses because a cantankerous wife adopts such an attitude. It is quite conceivable that a husband of poor means could
be well nigh ruined in a given case by a litigious wife.

The following passage from the judgment of the Punjab and Haryana High Court in Usha v. Sudhir Kumar2, is
instructive:—

There is no doubt that in the matter of fixation of the litigation expenses... a good deal of discretion lies with the trial court.
In so far as the question of the grant itself is concerned, there is practically no discretion with the court. If it is found in a
proceeding under the Act applicant under section 24 has no independent income sufficient for the applicant’s support and
the necessary expenses of the proceeding, the court must normally on the application of such a spouse, order the
respondent to pay the applicant the expenses of the proceeding... Though the word used under section 24 is ‘may’, it would
be only in extraordinary circumstances that a court would refuse to grant an application under that provision if the condition
precedent for grant of such allowance are fully satisfied. In the matter of fixation of quantum, different criteria are laid down
for litigation expenses on the one hand and the maintenance allowance, on the other. So far as the litigation expenses are
concerned, the court must normally direct the payment of ‘the expenses comes into the picture. While deciding the question
of such expenses also, the court is, however, not expected to be led away by any figures which the applicant may suggest.
The trial court is expected to know the amount of expenses required for court fee, cost of judicial papers, typing expenses,
process fees, and diet money for witness, commission fees, fees of some medical or other expert whenever such a witness
has to be examined and the usual fee charged by some counsel in that particular court for undertaking the prosecution or
defence of such cases. Once the court finds that the applicant has no independent income sufficient to meet the necessary
expenses of the proceeding, it has no discretion in the matter of judging the reasonableness of the proper amount of
litigation expenses.

In Daya Aggarwal v. Sohan Lal1, where the petition was based on insanity of the wife, the court declined her
expenses of the medical examination. She was also not allowed expenses for moving an application under Hindu
Marriage Act, 1955. In Sandeep Kaur v. Major Charanjeet Singh2, the wife claimed Rs. 2500 toward the fee of a
lawyer of out-station whom she had engaged. The court allowing her a sum of Rs. 1500 observed that a party was
not free to engage a counsel from any place and incur any amount of expenses3.

Maintenance to Second Wife

It was held in this instant issue that it was well settled law that a marriage contravening section 5(i) of the Hindu
Marriage Act, 1955 was void ipso facto jure and woman entering into such a marriage was not “wife” within the
meaning of either Hindu Marriage Act or section 125 of Criminal Procedure Code.

The expression “wife” used in both the laws means only legally wedded wife. The Hindu Adoptions and
Maintenance Actas was held could not be treated differently for the meaning to expression “wife” used therein. The
expression must be given the meaning in which it is understood in the law applicable to the parties. Since the
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institution of marriage and the very relationship of husband and wife originates from the personal law applicable to
the parties, there could be no escape from reference to the personal law which understanding the expression
“husband” and “wife” used in various statutes. Finally it was held that the second wife who married Hindu male
having legally wedded wife after coming into force of Hindu Marriage Act, 1955, would not be entitled to claim
maintenance.4

Maintenance of children.—There is divergence of judicial opinion on the matter whether maintenance for children
can be awarded under section 24 of the Hindu Marriage Act, 1955. There is so far not much case law under
matrimonial statutes, but the same divergence of opinion can also arise thereunder:
(a) Whether the wife, on an application for maintenance for herself, can claim maintenance for children also?
(b) Whether she is required to make a separate application for the maintenance for children?
(c) Since no provision exists in section 24, if she can apply at all, she can do so under section 26 but not
under section 24 of the Act.

The Patna, Jammu and Kashmir, Allahabad and Himachal Pradesh High Courts have taken the view that such an
order cannot be made in an application under section 24 of the Hindu Marriage Act, 19551. On the other hand, the
Punjab and Haryana, Karnataka, Andhra Pradesh and Orissa High Courts2 have taken the view that such an
application can be made under section 24. In Bibi Balbir v. Raghbir Singh3, the Punjab and Haryana High Court
observed that in fixing the amount of support and maintenance for the wife, the court should include maintenance of
children also. The Karnataka High Court went to the extent of holding the maintenance for children can be granted
even if there is no specific prayer in the application under section 244. The Rajasthan High Court also expressed
this opinion5. The Allahabad High Court has also held that in an application by wife children can be included by the
court.6 The courts are gradually veering round the latter opinion.

In the case of Padmja Sharma v. Ratan Lal Sharma,7it was observed and held that maintenance has not been
defined in the Act or between the parents whose duty is to maintain the children. The Hindu Marriage Act, 1955,
thehindu Minority and Guardianship Act, 1956, thehindu Adoptions and Maintenance Act, 1956 and the Hindu
Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the
context, definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a
certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly.
Therefore, the help ofhindu Adoptions and Maintenance Act, 1956 (for short “the Maintenance Act”) can be taken to
understand the meaning of “maintenance”. In clause (b) of section 3 of this Act:

“maintenance includes—(i) in all cases, provision for food, clothing, residence, education and medical attendance and
treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incidental to her marriage;”

Under clause (c) “’minor’ means a person who has not completed his or her age of eighteen years”.

Under section 18 of the Maintenance Act, a Hindu wife shall be entitled to be maintained by her husband during her
lifetime. This is of course subject to certain conditions. Section 20 provides for maintenance of children and aged
parents. Under this section, a Hindu is bound, during his or her lifetime, to maintain his or her children. A minor child
so long as he is a minor, can claim maintenance from his or her father or mother. Section 20 is, therefore, to be
contrasted with section 18. Under this section it is as much the obligation of the father to maintain a minor child as
that of the mother. It is not the law that howsoever affluent the mother may be, it is the obligation only of the father
to maintain the minor.

In another case, the husband had accepted pregnancy and marriage. A girl child was born four months after
marriage. Husband continued with such marriage for 4½ years and gave his name to child. The husband divorced
the wife after 4½ years. It was held that the husband cannot refuse to pay maintenance to wife on grounds that
marriage was void and child was not his.1

In Damodharan v. Meera2, it was argued before the Kerala High Court that the children are not entitled to get
interim maintenance under section 24 of the Hindu Marriage Act, 1955 as plain reading of the section clearly
indicated that wife or husband alone could claim maintenance pendente lite and expenses of the proceedings and
any order for the maintenance of children under section 24 was wholly unjustified. M.M. Pareed Pillay, J., observed:

Section 26 of the Act makes the position very clear that in any proceeding under the Act, the court can pass interim orders
and make provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education
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of minor children. A petition filed under section 25 cannot be considered in isolation and the court cannot altogether ignore
section 26 of the Act in a case where maintenance of the children is also claimed.

Earlier the Karnataka High Court has also expressed this view and relied on section 26 of Act. In Monoj Kr. Jaiswal
v. Lila Jaiswal3, the Division Bench of the Calcutta High Court, referring to cases taking contrary view, observed:

We have examined those decisions and we have felt, and this we say with great respect, that these decisions have adopted
a rather technical and literal approach and the effect and impact of section 26 of the Hindu Marriage Act has not at all being
considered in these decisions... that if a case is made out to that effect, interim maintenance can be granted to the minor
children while considering an application under section 24 by the wife even in the absence of separate application under
section 26 of the Act. We are, therefore, of the view that in granting maintenance to the minor daughter, while disposing of
and allowing the application under section 24 by the wife, the learned judge has not made any illegal assumption or illegal
exercise of jurisdiction to warrant our intervention in revision.

It is submitted that this is preferable view, and it is in consonance with the spirit of law and accords well with our
social conditions.

An order for interim maintenance of the applicant and children and for the expenses of the proceedings can be
made in any proceedings in any matrimonial causes, viz., nullity of marriage, judicial separation divorce or
restitution of conjugal rights, and even in proceedings for permanent alimony and maintenance under section 25 of
the Hindu Marriage Act, 1955. It is submitted that interim maintenance can be granted in proceedings under section
25, when a petition is made after the decree in the main proceedings has been passed.

In an English case1, M was the mother of two children who lived with their father from whom M was separated but
with whom she shared the responsibilities for their maintenance. She now lived in a same-sex relationship, pooling
incomes and sharing outgoings with her partner. She complained that her liability to pay maintenance to child was
greater than it would have been if she were living with a male, because the prescribed criteria under the Child
Support (Maintenance, Assessments and Special Cases) Regulations, 1972, for reducing the liability of absent
parents to make allowance for their current housing costs applied only to heterosexual couple. By regulation 1(2) of
the Regulations the “unmarried couples” was defined to mean “a man and woman” who “were living together as
husband and wife”. M appealed against the assessment of her child support contribution on the grounds that the
assessments engaged her rights to respect for her private and family life and her home under article 8 of the
Convention of the Protection of Human Rights and Fundamental Freedoms and to her possessions under article 1
of the First Protocol to the Convention, and that she had suffered discrimination in her enjoyment of those rights
contrary to article 14 of the Convention. The appeal Tribunal ruled that M’s assessment was to be calculated on the
basis that her same sex partner was a member of her family and her partner for the purpose of the Regulations.

Conditional order of maintenance.—In Saroj Devi v. Ashok Puri Goswami2, the husband petitioned for divorce on
the ground of adultery. The trial court on the application of the wife for interim maintenance awarded an amount of
maintenance. On the condition that the wife would give an undertaking to the effect that in case allegation of
adultery against her was established, she would refund the amount of maintenance. On appeal, the Rajasthan High
Court rightly said that no such conditional order could be made. The High Court set aside the condition.

When petition is dismissed, no order for maintenance can be made.—Since relief granted under section 24 of
the Hindu Marriage Act, 1955 is interim relief, no order for temporary maintenance can be made after the petition
has been dismissed1. But an interim order passed before the dismissal of petition can be enforced2.

Variation of order of maintenance.—Section 25 of the Hindu Marriage Act, 1955 and analogous provisions of the
other matrimonial statutes specifically provide for the variation of orders of permanent alimony and maintenance.
But section 24 of the Hindu Marriage Act, 1955 and analogous provision in other matrimonial statutes relating to
interim maintenance and alimony are silent on the question of variation of interim orders of alimony and
maintenance. It was probably on account of the fact that ordinarily interim arrangements are of short duration
needing no modification. But matrimonial proceedings drag on, sometimes, for years, and the absence of specific
provision has not hampered the courts in doing justice and the courts have held that variation of orders of interim
maintenance is within the jurisdiction of the court.

In Devki v. Purshotam Kewalia,3 the Rajasthan High Court observed that the court has jurisdiction to vary the order
of the interim alimony and maintenance on change of circumstances. Case of Asha v. Surinder Kumar4, provides a
good illustration. At the time when interim maintenance was fixed the salary of the husband was Rs. 670 and the
court fixed an amount of Rs. 275 per month as interim maintenance. Thereafter, on promotion, his salary increased
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to Rs. 1500 per month. On wife’s application the court enhanced it Rs. 3505. The court will vary the order only when
there is substantial change of circumstances. Merely because the wife got a temporary job is not sufficient reason
for reducing the amount of interim maintenance6.

Disposal of application for enhancement of maintenance would take priority over the suit for divorce.7

Amount awarded under section 125, Code of Criminal Procedure is adjustable against amount awarded in
maintenance proceedings under section 24.8

Enforcement of orders.—A maintenance order can be enforced like any other order of the civil court under the
provisions of the Code of Civil Procedure, 1908. “But difficulties of a litigant in India begin when he has obtained a
decree”1 is a very apt expression of situation that prevails in the country regarding execution of orders and decrees.
In view of this matrimonial courts have found some other ways of enforcing the orders. In Anita Karmokar v.
Birendra Chandra Karmokar2, the Calcutta High Court rightly observed:

To relegate one to that difficult and risky pathway, even for realisation of the litigation expenses, without staying the hearing
of the matrimonial suit, may result in the suit itself being heard out before the expenses may be realised by process of
execution. Therefore, to hold that the levying of execution is the only remedy for enforcement of an order made under
section 24 may result in making such order wholly nugatory and ineffective.

Stay of proceedings and striking out the defence.—In view of this the courts have stayed the proceedings or
have struck the defence and in extreme cases dismissed the petition or appeal with a view to enforcing the
maintenance order. The most clear exposition of this inherent power of the court is found in the following passage
from the judgment of S.C. Mohapatra, J., in Binayak Chandra Padhy v. Kamla Padhy3:

To get the order complied with the inherent power can be exercised by stay of the proceedings initiated by the defaulter or
by striking out his defence where the proceeding has been initiated by the party in whose favour the order is passed or to
dismiss the application of the defaulter initiating the proceeding. The normal rule of restraint to exercise inherent power in
cases of availability of alternative forum would not be attracted to realise the money as per the order to pendente lite
maintenance and the litigation expenses, since the same is to be paid to a person having no sufficient means. Execution of
the order for the same takes time in view of the procedure provided under Order XXI of the Code of Civil Procedure, 1908
and without the maintenance and litigation expenses, the party in whose favour the order is passed does not get a fair
chance to prosecute or defend the proceeding as the case may be. Where a party does not get adequate opportunity
natural justice is violated. Therefore, the court comes to the rescue of that person in exercise of the inherent power.
However, the wider the power, the greater should be the restraint. Courts having wide power, therefore, should carefully
consider the facts and circumstances to use only that much of power which would be sufficient for getting the order
complied with and not beyond. It should be remembered that in absence of specific provision, the order should not be penal
in nature. A just balance is to be struck.

The learned judge added, there can be no doubt that contumacious conduct or deliberate act not to comply with the
order can be dealt with stiffly by dismissing the application or striking off the defence of the defaulter as the case
may be. Before exercising the said power, the court is to give a clear finding based on reasons and material to that
effect.

Then the learned judge cautioned in the exercise of this power thus:

Since the court has the power to stay the proceeding or dismiss the same, the power should be exercised by doses. It
should first stay the proceeding and give opportunity to the defaulter to pay the same. In spite of it where the default
continues it might dismiss the application initiated by the defaulter in case, it comes to the conclusion that the non-payment
was deliberate and contumacious. However, the power should not be allowed to be utilised by a party to harass the other
party to whom direction is given merely on account of non-payment where the circumstances would indicate that the non-
payment was on account of a reasonable cause. In such cases, the party entitled to receive pendente lite maintenance and
expenses of the proceeding can be allowed to execute the order and till then the proceeding can be stayed.

In C.S. Mangalam v. Velayudhan Asari1, the High Court reaffirmed that the court has inherent power to strike out of
the defence of a respondent who wilfully disobeyed court’s order. In this case for no valid reason the husband failed
to comply with court’s order to pay interim maintenance. The trial court had held that under the Hindu Marriage Act,
1955 the court had no such power. (Probably the court’s attention was not drawn to its inherent power to do so).
Referring to earlier precedents, the courts held that where a party deliberately disobeys the order of the court, the
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court has power to strike out his defence. This power is essential because otherwise it would be difficult for the
court to control the proceedings of the court and obtain co-operation of the parties. In this case, as in earlier, it was
argued that the party could launch execution proceedings, Paripournam, J., observed that instead of exercising the
jurisdiction so vested in the court, “the court would not justified in throwing its hands in despair and offering a
gratuitous legal opinion to a party to the proceeding to file an execution petition, which is not an easy going
highway, and is beset with all imponderables and practical difficulties”.

In Vinodchandra Gajanan Deokar v. Anupama Vinodchandra2, the High Court had made an order for interim
maintenance in favour of the wife. The husband applied for access to the child of the marriage. The court refused to
entertain the application till the husband complied with the order of interim maintenance. The court said that the
husband was very affluent and it was not difficult for him to honour court’s order. It is submitted that this observation
was not necessary. Whether a party is very affluent, or less affluent or not affluent, court’s order has to be complied
with.

This inherent power has been exercised in several manner. In Krishna v. Thailambal,1 the husband against whom
an order of interim maintenance was passed sought to withdraw his petition, but the court did not allow him to do till
he paid the amount. The court observed that the petitioner cannot be allowed to defeat the claim of interim
maintenance of his wife by just withdrawing the petition. The court further observed that if a party drags another to
the court of law and if the latter is able to make out case for interim maintenance and expenses of the proceedings,
the claim cannot be defeated2. Where the non-claimant refuses to obey the maintenance order and yet wants to
proceed with the case, the court has power to stay proceeding till the order of maintenance is obeyed3. The court
can also strike out his defence4.

In Kotireddy v. Bathalu Ramenamma5, on the husband’s failure to pay interim maintenance, the trial court
dismissed the petition. The Andhra Pradesh High Court held that the order was bad. In Mahalingam Pillai v.
Amsavalli7, a case under the Special Marriage Act, 1954, the court observed that if the order for interim
maintenance was made a condition precedent, it could result in the dismissal of the petition. But interim
maintenance should not be refused to the wife to coerce her into reconciliation7.

In Balwinder Kaur v. Jaswant Singh8, the Punjab and Haryana High Court said that on the non-compliance of the
order of maintenance, the court can take contempt proceedings against non-claimant. In Banso v. Sarwan9 and
Balbir Kaur v. Gurdev Singh10, where, in appeal, the appellant court granted interim maintenance, the Punjab and
Haryana High Court said that if order was disobeyed, it could dismiss the appeal.

An order for interim maintenance can be enforced after the dismissal of the petition11.

Appeal or Revision against the interim order.—Before the amendment of section 28 of the Hindu Marriage Act,
1955, the courts have expressed divergent view on the question whether an appeal lies against an interim order of
alimony and maintenance. After the amendment of the sections of the Hindu Marriage Act and the Special Marriage
Act by the Marriage Laws (Amendment) Act, 1976, now only revision application can be made.

Since order under section 24 is an interlocutory order, no appeal would lie.1

Under the Indian Divorce Act, 1869 also no appeal lies against the interim orders.

Indigent person and interim maintenance.—Lata alias Hemlata v. Civil Judge, Bulandshahr2, is a curious case.
One would submit, with humility, of bungling by the subordinate judiciary. Wife had requested for the grant of
maintenance and expenses pendente lite. She also made an application for leave to sue as indigent person. The
trial court accepted her application for interim maintenance but rejected her second application. Both the spouse
preferred revisions against the order. The Additional District Judge, Bulandshar, allowed her appeal to sue as
indigent person, but accepted the revision of the husband and quashed the order of maintenance. The curious
aspect of the order of the appellate judge is that the same judge had denied her maintenance and litigation
expenses, while he had held her to be indigent person. It was not that the husband was without any income. The
Allahabad High Court accepted the writ petition of the wife.
(B) PERMANENT ALIMONY AND MAINTENANCE

Introductory: Differences in the Provisions of the Statutes

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The object of providing maintenance to a wife on dissolution of marriage is that on divorce she should not be left
destitute. The principle was extended to a decree of nullity also. In the case of restitution of conjugal rights and
judicial separation the marriage subsists and therefore, there is all the more reason for making provision for
maintenance and alimony on a decree being passed.

This provision has been borrowed from English law. The provision in all the Indian matrimonial statutes is
substantially the same with the following differences:
(a) Under the Hindu Marriage Act, 1955 either spouse can claim it, while under other statutes only wife can
claim it.
(b) Under the Indian Divorce Act, 1869 permanent alimony can be claimed only in two matrimonial reliefs,
dissolution of marriage and judicial separation. It is not available in the case of nullity and restitution. Under
all other statutes it is available in all the four matrimonial reliefs.
(c) Under the Indian Divorce Act, 1869 an order for permanent alimony can be made only at the time of the
passing of decree. No such order can be made subsequently. Under all the other three statutes it can be
made both at the time of the passing of the decree as well as at any time subsequently.

Provision in Various Indian Matrimonial Statutes

Indian Divorce Act, 1869

Section 37 of the Act containing the provisions runs:

1[Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court
may order that the husband shall,] to the satisfaction of the court, secure to the wife such gross sum of money or such
annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the
husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be
executed by all necessary parties.
In every such case the court may make an order on the husband for payment to the wife or such monthly or weekly sums
for her maintenance and support as the court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the
court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so
ordered to be paid, and again to receive the same order wholly or in part as the court seems fit.

Section 38 of the Act lays down that the amount of alimony may be paid to the wife or her trustee. The section runs:

In all cases in which the court makes any decree or order for alimony, it may direct the same to be paid either to the wife
herself or to any trustee on her behalf to be approved by the court, and may impose any terms or restrictions which to the
court seems expedient, and may from time to time appoint a new trustee, if it appears to the court expedient so to do.

Parsi Marriage and Divorce Act, 1936

Section 40 of the Act containing provision for permanent alimony and maintenance runs:
(1) Any Court exercising jurisdiction under this Act, may, at the time of passing any decree or at any time
subsequent thereto, on an application made to it for that purpose by either the wife or the husband, order
that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such
monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the
defendant’s own income and other property, if any, the income and other property of the plaintiff, the
conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any
such payment may be secured, if necessary, by a charge on the moveable or immovable property of the
defendant.
(2) The court if it is satisfied that there is change in the circumstances of either party at any time after it has
made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any
such order in such manner as the court may deem just.
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(3) The court if it is satisfied that the party in whose favour an order has been made under this section has
remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband,
that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party,
vary, modify or rescind any such order in such manner as the court may deem just.

Section 41 of the Act lays down that the amount of the maintenance may be paid to the wife or to her trustee or her
guardian. The section runs :

In all cases in which the court shall make any decree or order for alimony it may direct the same to be paid either to the wife
herself, or to any trustee on her behalf to be approved by the court, or to guardian appointed by the court and may impose
any terms or restrictions which to the court may seem expedient, and may from time to time appoint a new trustee or
guardian, if for any reason it shall appear to the court expedient so to do.

The provision is substantially the same as under section 38 of the Indian Divorce Act, 1869.
Special Marriage Act, 1954

Section 37 of the Act deals with permanent alimony and maintenance. The section lays down:
(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or
at any time subsequent to the decree, on application made to it for the purpose, order that the husband
shall secure to the wife for her maintenance and support, if necessary by a charge on the husband’s
property such gross sum or such monthly or periodical payment of money for a term not exceeding her life,
as, having regard to her own property, if any, her husband’s property and ability, the conduct of the parties
and other circumstances of the case, it may seem to the court to be just.
(2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it
has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any
such order in such manner as it may seem to the court to be just.
(3) If the district court is satisfied that the wife in whose favour an order has been made under this section has
remarried or is not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any
such order, in such manner as the court may deem just.

The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence. For the
interpretation of a provision of this statute there is no warrant to be guided by English decisions. There is no
ambiguity in section 37 for the interpretation of which it is necessary to go beyond the provision itself. It is one of the
settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit
the benefits under a decree to be lost unless there be any special reason for it. In incorporating a provision like
section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of
maintenance. If the husband has left behind an estate at the time of his death there can be no justification for the
view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the
decree.1

Enactment of Alimony for the Rising Cost of Living

The Supreme Court in a case for alimony under the Special Marriage Act, 1954, directed for enhanced payment of
alimony from the estate of the deceased ex-husband, keeping in view the rising cost of living.2

Hindu Marriage Act, 1955

Section 25 of the Act contains the provision for permanent alimony and maintenance. The section lays down:
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time
subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the
case may be, order that the respondent shall pay to the applicant for her or his maintenance and support
such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as,
having regard to the respondent’s own income and other property, if any, the income and other property of
the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to
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be just, and any such payment may be secured, if necessary, by a charge on the immovable property of
the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has
made an order under sub-section (1), it may at the instance of either party vary, modify or rescind any such
order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has
remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband,
that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other
party vary, modify or rescind any such order in such manner as the court may deem just.

The provision is almost identical with section 37 of the Special Marriage Act, 1954.

The court, in a matter3 of permanent alimony, held that section 25 is an enabling provision. It empowers the court,
in a matrimonial case, to consider facts and circumstances of the spouse applying and decide whether or not to
grant permanent alimony or maintenance. The facts of the instant case fully justified grant of maintenance, both to
the wife and the daughter. The evidence of the wife was held rightly believed by the courts below. After the second
marriage the parties lived as husband and wife and they had a considerably long married life of about nine years. In
such a situation, the Family Court and the High Court were fully justified in holding that the wife deserves to be
granted maintenance under section 25 of the Act. The court further held that it was not possible to say anything on
the prayer that the daughter was of marriageable age and the maintenance of total rupees three thousand granted
to them, therefore, deserved to be suitably enhanced to fulfil their present needs. It is always open to the wife and
the daughter in accordance with sub-section (2) of section 25, to approach the Matrimonial Court to suitably
enhance the quantum of maintenance granted to them. If such an application is made to the Matrimonial Court, it
shall be decided after hearing the husband in accordance with law.

When can an Order for Permanent Alimony and Maintenance may be Made
Except under the Indian Divorce Act, 1869, an order for permanent maintenance and alimony may be made:
(a) at the time of the passing of a decree in a matrimonial cause, or
(b) at any time subsequent to the passing of the decree in a matrimonial cause.

In Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga,1 the Supreme Court has held that
expression “at the time of passing any decree” would encompass all decrees governed by sections 9 to 13. Thus,
Court can award maintenance at the time of passing of any type of decree resulting in breach of marriage.

However, it is a substantive relief, it cannot be granted on interlocutory application. Main petition has to be
amended to ask the substantive relief.2

The words in section 37 of the Indian Divorce Act, 1869 “while applicant remain unmarried” gives an impression that
an order for permanent alimony and maintenance cannot be made when a court passes a decree for judicial
separation. But this is not so. This impression is caused by the inapt use of these words.

Whether orders for permanent alimony and maintenance can be made when a petition is dismissed, please refer to
Part I of this Chapter under the title, “Ancillary Relief when petition in a matrimonial cause is dismissed”.

Maintenance under both Cr. P.C. and Hindu Marriage Act are Different
It was held in such issue that the provisions of section 125 of the Code of Criminal Procedure stand on a totally
different footing, as in proceedings under section 125 of the Cr. P.C. an order for maintenance could not be passed
only on ground that wife did not have any independent income sufficient for her support, but she would have to
prove that her husband had refused, or neglected to maintain her which is not the requirement of section 24 of the
Hindu Marriage Act, 1955. Further an order passed under section 125 of the Code was in the nature of a final order.
Whereas an order rendered under section 24 of the Hindu Marriage Act, 1955 remained in force only returning the
pendency of the litigation between the parties and ceases to exist. The order of permanent alimony or maintenance
is passed under section 25 of the Hindu Marriage Act, 1955.1 In Shambhu Nath Pathak v. Kanti Devi2, it has been
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

held that wife is not entitled to double bonanza both under section 25 of this Act as well as section 125 of Cr. P.C. It
is submitted that the decision is correct but the use of word double “bonanza” is not a happy choice.

Is maintenance a bonanza!

Duration: ‘While the Applicant Remains Unmarried’

There has been some divergence of judicial opinion on account of use of the words, “remains unmarried,” in section
25 of the Hindu Marriage Act, 1955, and section 40 of the Parsi Marriage and Divorce Act, 1936. The Special
Marriage Act, 1954 and the Indian Divorce Act, 1869 do not use such words. The use of these words in the former
two statutes have led to some judicial controversy. These sections also use the words “any decree”. The Gujarat
High Court (before whom the question was whether on passing a decree of restitution of conjugal right, could a
court make an order for permanent maintenance) emphasising the words “any decree” observed that section 24 of
thehindu Marriage Act, 1955 has not to been given a restrictive meaning but a wider meaning so as to include all
matrimonial causes3. But unfortunately in Mehta Gunvantray Maganlal v. Bai Prabha Keshavji4, emphasising the
words “remains unmarried”, the court observed that an order of permanent maintenance subsequent to a decree
can be made only in proceedings for restitution of conjugal rights or judicial separation and not in divorce and nullity
proceedings. This is obviously a wrong view, and the Gujarat High Court had abandoned it5. Some High Courts
have tried to get over the difficulty by other interpretations also6. It is submitted that there should be no doubt that
the court has power to grant permanent alimony in all the matrimonial causes. Since a decree for restitution of
conjugal right or judicial separation does not dissolve the marriage, the words “applicant remains unmarried” are
redundant. However, in cases where the court makes a decree of divorce or nullity these words specify the duration
during which an order of maintenance will be effective. This is made clear by sub-section (3) of section 25 of the
Hindu Marriage Act, 1955. In view of specific provision in sub-section (3), the words “while applicant remains
unmarried” were redundant in sub-section (1), and have been deleted by the Marriage Laws (Amendment) Act,
1976.

In basis of the claim of maintenance is that the claimant has no sufficient means to maintain herself. The fact that
wife has potential to earn is immaterial1.

The statutes clearly specify that orders for permanent maintenance and alimony cannot be made beyond the life of
the applicant. There are circumstances where the order may be terminated earlier. Sub-section (3) of section 25 of
the Hindu Marriage Act, 1955 and sub-section (3) of section 37 of thespecial Marriage Act, 1954 lay down that such
orders would come to end if the applicant remarries or does not remain chaste (in case the applicant is the
husband, he indulged in extramarital intercourse). The court may, at the instance of the other party, vary, modify or
rescind such order. Before the amendment of 1976, the provision was that in such cases the court “shall rescind the
order”. Under the Parsi Marriage and Divorce Act, 1936 the orders for permanent alimony and maintenance remain
valid only till the applicant remains chaste and unmarried. There is no such provisions under the Indian Divorce Act,
1869. The amended provisions of thehindu Marriage Act, 1955 and thespecial Marriage Act, 1954 does not oblige
the court to rescind the maintenance order in the event of happening of any of the two aforesaid events. The court
may not rescind the order, it may merely modify it or vary it. This has obvious advantage. If a wife having children
remarries a poor man, her remarriage does not necessarily deprive her of the maintenance. The court may feel that
her ex-husband should still pay her maintenance.

If gross sums have been ordered to be paid, the order for such payments cannot be rescinded, modified or varied,
variations, modification and rescission applies only to periodical payments and that too to future instalments and not
to instalments already due2.

The death of the applicant terminates such orders. In the case of unsecured payments, death of the other party also
terminates such orders.

Under English law at one time orders for permanent alimony in favour of the wife were made dum casta (i.e., while
she remained chaste), but this practice is now obsolete and there is no such statutory provision. Under the Indian
law, particularly under the Indian Divorce Act, 1869 (it follows English law) and the Parsi Marriage and Divorce Act,
1936 such orders are still dum casta. Under the other two statutes the unchastity of the applicant confers a power
on the court to vary, modify or rescind the order on the application of the other party.

In every case, on the death of the non-claimant, payment of permanent alimony comes to an end, since it is by its
very nature a personal obligation1.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

Consideration for Fixing the Amount of Alimony and Maintenance

The basis for awarding permanent alimony and maintenance is that the applicant has no sufficient means to
maintain herself. Other factors that would weigh before the court in determining the amount of permanent alimony
and maintenance are:
(i) income and other property of the parties,
(ii) conduct of the applicant and non-applicant, and
(iii) any particular or special circumstances.

Income and property of both the spouses.—The first factor that the court would take into account is the income
and any property, movable or immovable that parties hold. In determining the amount of maintenance on the
application of the wife the status of the husband and not of her father, is material. Ordinarily, the wife is entitled to
an amount which enables her to maintain the same standard of living to which she was used to before the
breakdown of the marriage2. The court may pass orders that the non-claimant should pay to the claimant gross sum
or monthly or periodical sum for his or her support. A husband cannot get rid of the wife’s claim of maintenance on
the ground that he is not able to get a good job3, or the wife is living with her father4, or that the wife is sufficiently
qualified to get a job, or is supported by her father5.

The court will take into consideration not only the income of both the spouses but also the property held by the
spouses jointly or separately, movable or immovable. This implies that all the properties that the parties hold will be
taken into account irrespective of the fact whether or not that property yields income or profit. Thus a husband who
works at his father’s farm will be ascribed to have income and will be required to pay maintenance to his wife6.

A wife is entitled to alimony even if she is working. In this case she was earning Rs. 35,000 p.m. and husband was
earning Rs. 30,000 p.m. Taking into account his income tax return she was awarded 15 lakhs as alimony.7

In cases where the court is called upon to grant permanent maintenance and alimony, the main question before the
court is to get at the truth about the financial position of each party. When a party makes an application for
permanent maintenance and alimony, the other party is required to give all details and makes full disclosure of his
income and properties. There is an obligation on the party to make full, frank and complete disclosure of all relevant
circumstances. The applicant has the right to make queries about the alleged omissions. The court has power to
make an order for discovery, i.e., ask the other party to make available for inspection relevant documents, such as
income-tax returns, bank statements, the account of any business in which he has interest and like matters. If
necessary, the non-claimant may be cross-examined. A similar disclosure of the income and properties of the
applicant is also required.

Under the modern English law, the court takes into consideration the financial position of parties, i.e., not only what
a man is shown to have but also what would reasonably be made available to him if he wished1. Case of J. v. J.2
amply illustrates this proposition. The taxable income of the husband was £ 70 per annum but he was able to live
the rate of more than £ 1,000 per annum by borrowing money secured on his properties. The court, therefore, took
£ 1,070 as his income for assessment purposes. In Ettee v. Ettee3, the fact that the husband was provided with free
board and lodging by his mistress, in Martin v. Martin4 voluntary allowance that the husband received, and in
Klucinski v. Klucinski,5 the overtime pay of the husband were taken into consideration by the court.

Under English law, since the court is concerned, not only what a man has with what he could have if he like, i.e., his
earning capacity, is also taken into account.6 Just as husband’s earning capacity is to be taken into account, a view
has been expressed that wife’s earning capacity, too, should be taken into account. In those cases where wife has
young children to look after and bring up, the courts have expressed the view that it will be unreasonable to expect
her to work, and even where the children have ceased to need her full-time care, her earning capacity will obviously
be comparatively poor as she will be starting from scratch in middle of the life, while the husband has started from
his youth7. But in those cases where the wife does not require to devote herself to full-time domestic work, and
where the wife is a young divorcee without any children the court has expressed the view that her earning capacity
may be taken into account8. Thus it has been held that where marriage has been of short duration and parties are
young, the wife should not expect a pension for life, and an order for perhaps two to three months would be enough
whilst she looked for work. But the courts have observed that there is no principle of law that disentitles even a
young, childless wife from looking to her former husband for financial support9.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

The Indian courts have, on the other hand, categorically expressed the view that in considering wife’s application for
permanent maintenance and alimony, they would not take into account her capacity to earn or her potential income.
Thus, in M.D. Krishnan v. M.C. Padma1, the fact that wife was sufficiently qualified to get a job and in Mukan
Kunwar v. Ajeet Chand,2 that she was supported by her father were considered not to be relevant considerations for
fixation of the maintenance3. What is to be taken into consideration is wife’s independent income. If she has no
independent income she is entitled to an order4. But in those cases where wife has sufficient income or earning for
herself, no order for maintenance need be made5.

In U. Sree v. U. Srinivas6, it is held that for fixation of quantum of maintenance there cannot be any arithmetical
formula. It would depend on the status of parties, their social needs, financial capacity of the spouse and other
obligations. Court should ensure that wife, if not able to live luxuriously should be able to live with dignity and
comfort. Husband a famous musician. Holding concerts, considering the status the wife was awarded Rs. 50 lacs
fixed as permanent alimony.

Able bodied husband having no income.—In Urmila Devi v. Hari Parkash Bansal7, the Punjab and Haryana High
Court has held that an able-bodied husband capable of earning should provide maintenance to his wife even
though at the time of the order he had no income and a husband who is able to earn though not earning was not
entitled to maintenance8. Interestingly, taking the income of the husband equal to minimum wages which an able-
bodied person can earn, the court fixed Rs. 100 per month as amount of maintenance and awarded Rs. 500 as
litigation expenses. In this case both the husband and wife have claimed interim maintenance against each other.
Since the trial court found that neither party had any income, it dismissed both the applications. It was in the civil
revision petition of the wife that the High Court made the above observations and passed an order of maintenance.
It should have been noted that the husband had not filed a revision petition. Had he done so, the court would have
been in a real predicament.

Income-tax returns as guide to determine income.—Income-tax returns are not a sure guide to a person’s
income. They do not reflect true position of the income of a person. The court is free to look into other matters to
determine the true income of the spouse9.

Conduct of the parties.—The term ‘conduct’ has been used in a wider sense. It is the totality of the conduct of
both the parties that has to be taken into consideration. This will include: (a) conduct of the spouses towards each
other, (b) conduct of the spouses towards marriage, and (c) conduct of the parties towards the court.

There is a long line of cases, both Indian and English, on the question whether or not the pre-divorce conduct of the
respondent is material. This relates to the matrimonial offence of the respondent which is responsible for the
breakdown of the marriage and consequent relief granted to the petitioner.

The early English matrimonial law was wedded to the notion that a wife guilty of matrimonial offence is not entitled
to permanent alimony. Thus, a wife who had committed adultery, or had deserted her husband, or treated him with
cruelty or was guilty of any other matrimonial misconduct was entitled to receive no maintenance or at most
“compassionate allowance” to save her from utter destitution1. But English law has abandoned this doctrine, and
now holds that only that conduct of wife which is disruptive, intolerable and unforgivable nature will affect the
financial order of the court2. But even this limitation has been doubted. In Wachtal v. Wachtal3, Ormord, J.,
observed that the notion that a “guilty wife” was virtually disqualified from obtaining an order of maintenance had no
support of any modern authority. The Matrimonial Proceedings and Property Act, 1970 requires the court to have
regard to parties conduct in passing orders for financial provisions for the parties. In this case, the Court of Appeal
considered this provision and observed that this did not mean that the judge was to hear the parties’ “mutual
recriminations and... go into their petty squabbles for days on end, as he used to do in the old days.” The court
further observed that there was no need for “a post-mortem to find out what killed” the marriage, as in most cases
“both parties are to blame... or both parties have contributed to the breakdown.” Lord Denning said that only when
the conduct of a party is “both obvious and gross” that it will be taken into consideration in fixing financial provisions.
In Harneet v. Harneet4, this was interpreted to mean “common justice required” that one party should not receive as
much as would otherwise have been ordered5.

On this question, the Indian courts have expressed divergent views. In some cases under the Indian Divorce Act,
1869 following English decisions, courts in India have held that wife guilty of matrimonial misconduct, such as
adultery, is not entitled to maintenance6. In Bibi Balbir v. Raghbir7, the Punjab and Haryana High Court observed
that if the conduct of the applicant has not been fair towards the marriage, or it is she who is responsible for
breaking the marriage, or is guilty of the matrimonial offence, the court might still grant her maintenance though the
court would be justified in granting her less than the usual maintenance.
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

The most startling decision, is that of Bhat, J., of the Jammu and Kashmir High Court in Sardari Lal v. Vishano1,
who, having in mind the observation of the ecclesiastical court that bad wives who had violated their vows “shall be
fed with the bread of affliction and with the water of adversity”2, said that “a woman once divorced on the ground of
proved unchastity should be left to the resource of her immorality”. In some cases coming under the Hindu Marriage
Act, 1955 the courts have expressed that a party guilty of matrimonial misconduct is not entitled to permanent
alimony and maintenance.

Some of these cases are being reviewed.

In Raja Gopalan v. Rajamma3, where the husband has obtained decree of judicial separation on the ground of
wife’s adultery, and a decree of divorce was obtained on the ground of non-resumption of cohabitation for a period
of two years. [Section 13(IA)(ii) of the Hindu Marriage Act, 1955]. According to Vaidialingam, J., under section 25(3)
of the Hindu Marriage Act, 1955, unchastity of the wife after an order of maintenance is passed empowers the
court, on the application of the non-claimant, to cancel the order: when this is so, finding recorded during the judicial
separation proceedings regarding the unchastity of the wife should be taken into account in the first instance when
an order for maintenance is to be passed. There was no evidence on the record that the wife continued her
adulterous life after the decree of judicial separation. In Sardarilal v. Veshano4, the Jammu and Kashmir High Court
took the same view5.

Some change has been found in the rigid judicial attitude of denying maintenance to a respondent-wife on account
of whose fault marriage was dissolved in Amar Kanta Sen v. Sovana Sen6, where the Calcutta High Court said that
a wife who had ceased to live in unchastity after the dissolution of marriage was entitled to starving maintenance.

It may be recalled that even the Dharmashastra did not embody this rigid rule. It laid down that a wife guilty of
adultery is entitled to starving maintenance. The Dharmashastra view was given effect in Kaithakulangara
Kunhikannan v. Nellatham Veettil Malu7, where the marriage was dissolved as the wife was found guilty of adultery.
On her application for permanent alimony, the court granted her a sum of Rs. 25 per month as bare subsistence
allowance. And, to wit, in appeal, husband argued that she was not entitled even to this amount as an adulterous
wife had no claim to maintenance. But the High Court was not impressed, and following the case of Sydenham v.
Sydenham1, granted her maintenance. The High Court quoted Denning, L.J., who had said that the wife guilty of
matrimonial misconduct was entitled to alimony as pre-divorce conduct was not material: it was post-divorce
conduct which was material.

But again the rigid view was taken in Sachindra Nath Biswas v. Banamala Biswas,2 where the Calcutta High Court
made the following interesting observation:

The unchastity on the part of a woman (and also sexual intercourse by a man with a woman outside wedlock) are sins
against the ethics of matrimonial morality in this country. Moral law, it is true, is not the positive civil law of a country, but
there are many instance where law and morality meet. In our opinion, such a meeting place of law and morality is section
25 of the Hindu Marriage Act, and for the matter of that section 18 of the Hindu adoptions and Maintenance Act. In the
exercise of judicial discretion, expressly vested in courts of law under section 25(1) of the Hindu Marriage Act, a Judge
should, unless there be very special grounds, leave a wife, divorced on the ground of proved unchastity or adultery, to the
resources of her immorality and deny her the lawful means of support.

In this case, the marriage was dissolved on the ground of her adultery with her brother-in-law (sister’s husband) and
she continued to live in adultery with him even after the decree.

Now, such cases are being reviewed wherein it has been held that the pre-decree conduct of the claimant is
immaterial. In Dr. Hormusji M. Kalapesi v. Dinbai H. Kalapesi3, a case under the Parsi Marriage and Divorce Act,
1936, the husband was granted a decree on the grounds of wife’s cruelty. On her application for permanent
alimony, the husband argued that since she was the guilty party, she was not entitled to alimony.

In Jagdish v. Manjula4, it has been held that a wife could not be denied permanent maintenance and alimony, just
because a decree of divorce had been passed against her on the ground of cruelty. Surendra v. Phulwanti5, is an
interesting case. The husband obtained a decree of judicial separation on the ground of his wife’s desertion, since
wife had entered the Brahma Kumari sect and took holy vow of celibacy, which is the basic tenet of the sect. On
wife’s application for maintenance being opposed by the husband on the ground that she was responsible for
breaking the marriage, the court observed that wife was entitled to maintenance. This was a typical Hindu situation.
Religiosity of the wife led her to do what she did. This decision implies that an act or conduct may amount to
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Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

misconduct so as to constitute ground for divorce or judicial separation but the same act or conduct may not be
sufficient to disentitle her to maintenance. In Nathulal v. Mana Devi1, a decree of divorce was passed against the
wife for not complying with the decree of restitution of conjugal rights for a period of two years. The court said that
there was no provision in the Hindu Marriage Act which disentitled an erring wife to get permanent maintenance
and alimony. Thus, the mere fact that a party is guilty of a matrimonial misconduct is not a ground for denying
maintenance. While granting divorce, even though it was found that wife had indulged in mental cruelty, but for
award of maintenance, since she was totally dependent upon husband, she was awarded Rs. 15 lakhs as
permanent alimony.2

Maintenance
In this case, claimant, an illegitimate child alleged that the respondent was her father, which was supported by the
evidence of mother and several other villagers even birth register contained name similar to respondent’s name as
her father and in a school admission form, column seeking father’s name was kept blank as expected from unwed
mother. Hence the claim for maintenance by the claimant was allowed.33

Whether pre-divorce conduct was material came for consideration in Gulab Jagdusa Kakwane v. Kamal Gulab
Kakwane44. Where the husband has obtained a decree of divorce on the ground of wife’s adultery and the wife had
claimed permanent alimony and maintenance. This claim was resisted by the husband on the plea that one who
was found guilty of adultery was not entitled to maintenance, as her conduct disentitled her from claiming it.
Sawant, J., observed that under section 25 of the Hindu Marriage Act, 1955 an applicant was entitled to
maintenance notwithstanding the kind of matrimonial decree that was passed and the ground on which it was
passed. Therefore, a wife against whom a decree of divorce has been passed on the ground of her being unchaste
was not debarred from claiming maintenance and alimony either at the time of the passing of the decree or any time
subsequent thereto55 . The judge added that the court had ample discretion to grant or refuse to grant maintenance
depending on the facts and circumstances of the case and the section did not disentitle a party to maintenance
even if a decree was passed against her on the ground of unchastity.

It is submitted that the pre-divorce conduct of the respondent, particularly the matrimonial misconduct which led to
the passing the decree, should not be taken into consideration. Further, conduct of the parties is only one of the
considerations and it should not be given exaggerated importance. It would accord well with social considerations if
we consider only that conduct as relevant which is, in the words of Denning, L.J., “both obvious and gross”.

In a case, the husband was an industrialist. The wife lived with two daughters. Though a flat was purchased in
name of mother of wife at time of their marriage and a shop in posh locality in name of wife from contribution made
by husband, he agreed to purchase a house for wife in memorandum of understanding at time of their separation.
Wife derived income approximately of Rs. 50,000 p.m. from business conducted in said shop purchased by the
husband.

It was held by the court that wife was not entitled to maintenance for herself but daughters were entitled to
maintenance for their education and marriage. The husband, accordingly, was directed to purchase a house as
agreed in Mou upto Rs. 30 lakhs for wife or to deposit said amount and deposit Rs. 10 lakh for each daughter for
expenses of their education and marriage.1

Maintenance would include provision of residence. Wife cannot be denied right of residence in matrimonial home.2

In Mrinali Barua Patgiri v. Jayanta Kumar Patgiri,3 husband was asked to pay Rs. 7,50,000 as all time settlement.
Husband had remarried within 5 days of passing of judgment decreeing divorce in violation of section 15 of the Act.
He was earning Rs. 15,039 per month.

Other circumstances.—The court has discretion to consider other factors and circumstances of the case. There
may be some special circumstances and facts which require consideration which help the court in arriving at the
“just” or “reasonable” fixation of maintenance. It is submitted that one of the factors that the court will have to
consider in all cases will be the financial needs, obligations and responsibilities which each of the parties to the
marriage has or is likely to have in the foreseeable future. This is one of the most difficult questions and the Indian
courts have not paid sufficient attention to this matter. Two English decisions will illustrate the problem. In M.A. v.
Jones4, the husband had caused his wife such serious injuries that it was doubtful whether she would ever be able
to take up a job. There were also children of the marriage. The court allowed the wife to have the matrimonial home
(the only capital asset that the parties had). In S. v. S.5, the daughter, the only child of marriage, had suffered from
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serious kidney trouble since infancy, and needed to be looked after. This meant that the wife would not be able to
take up any job, as even when daughter would leave the school, she would need the care of her mother. The court
allowed her to have the entire interest in the matrimonial home.

However where wife was found having illicit relations after marriage and articles were returned to her before
panchayat she was held not entitled to either litigation expenses or maintenance.6

Standard of living as one of the considerations.—The standard of living enjoyed by the family before the
breakdown of the marriage would be taken into consideration. When parties are rich there is no difficulty. But in
cases of middle class families and families of moderate or poor means, the task of the court will be difficult. It would
be a difficult exercise but an exercise which the court will have to take. The courts have said that ordinarily the wife
is entitled to an amount of maintenance that will enable her to maintain almost the same standard of living to which
she was entitled before the marriage broke down1In Mohan Ram v. Krishna Kumar2the Court said that though
husband is required to provide maintenance to his wife so as to enable her more or less the same standard to
which she was used to before divorce, it is none of his obligation to provide her further sum so as to enable her to
equip herself for a calling or to provide expenses for other needs of the wife.

The court is also free to consider any other matter relevant for the grant of permanent alimony and maintenance.
The English courts have considered such matters as any physical or mental disability of either spouse, the
contribution made by each of the parties to the marriage and to the welfare of the family, including any contribution
made by him or her by looking after the house or caring for the family, the value to either of the parties to the
marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage,
that party will lose the chance of acquiring, and consideration such as what are the prospects, chance or hope of
remarriage, such as whether the wife is marrying a wealthy man or a poor man3

Guman Mal Lodha, J., of the Rajasthan High Court in Shanti Devi v. Raghav Prakash4where the husband obtained
divorce on the ground of wife’s cruelty, made the following very interesting observation:

...in the net analysis, the divorced daughter would be left alone, cursed by the society and a burden on herself both socially
and economically. She may or may not have any shelter to live in and bread to eat. In the instant case, she is illiterate
admittedly, and that would add insult to injury because she would not be able to earn anything. The remarriage is very
difficult, far-fetched proposition in most of the communities amongst Hindus. In view of this, permanent alimony should be
substantially a relief to her at least.

The court found that husband’s emoluments were Rs. 1,700 per month and carry home salary was Rs. 1,300 per
month. The learned judge fixed Rs. 350 per month as permanent alimony payable by the husband to the wife every
month by a demand draft in her favour. The learned judge also ordered that the husband would pay a sum of Rs.
5,000 as lump sum which would be kept in fixed deposit in a bank for a period of six years to be renewed for
another six years after paying interest to the wife. This amount would be paid to the wife if she so desired after
obtaining an order to that effect from the court. It is a good social engineering in which the interest of wife is kept in
view disregarding the fact that it was she who was responsible for wrecking the marriage.

In short, the maintenance is granted to a needy spouse1

Quantum of Maintenance
“One-third” rule: English law.—The English ecclesiastical courts laid down “one-third” principle for awarding
maintenance to the wife, that is to say, on passing of a decree in a matrimonial cause, they would normally order
the husband to pay to his wife such a sum by way of alimony as would bring her income up to one-third of the
parties’ joint income. This may be illustrated by an example. Suppose husband’s income is Rs. 10,000 per annum
and the wife’s Rs. 2,000 per annum, one-third or the joint income will be Rs. 4,000. The husband will be ordered to
pay to his wife Rs. 2,000 per annum, so as to bring her income to one-third level. This principle was accepted by
the Divorce courts as a guide, “a sound working rule...yet not an absolute rule”. In 1966, in Kershaw v. Kershaw2the
court described the rule as “discredited”. The Matrimonial Proceedings and Property Act, 1970 established a new
code. But in Wachtal v. Wachtal3the Court of Appeal said that the one-third rule was a “good and rational starting
point, though the essence of legislation is to secure flexibility to meet the justice of particular case, and not rigidity,
forcing particular cases to be fitted into some so-called principle within which they do not easily lie, and there may
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be cases where more than one-third is right, as well as cases where less than one-third is the only practicable
solution”. Thus one-third rule is now treated only as a starting point.

None of the Indian matrimonial statutes lay down any such rule. It is interesting to note that though section 36,
Indian Divorce Act, 1869 which deals with interim maintenance, talks of one-fifth rule, section 37 which deals with
permanent alimony does not speak of one-third rule. In some cases the Indian courts have followed the one-third
rule4. However, the Indian courts have also observed that one-third rule is merely a guideline and there is no rigidity
about it. The court will fix the amount of maintenance after considering all factors and matters relevant to the case.
It may be more that one-third or less than one-third in a given case. The husband cannot get rid of his obligation on
the ground that he is not able to get a good job5

Fortunately, Indian courts have not adhered to one-third rule. The courts usually take into consideration the income
of both parties and other income of the applicant and non-applicant, the post divorce life of the spouses, and their
families, habits and age of the parties and other liabilities of the parties6. In Ridley v. Ridley1the English court said
that in estimating the amount of permanent alimony, the court must not only focus its attention on the disposable
income of the husband in the year preceding the making of the order but must also have regard to his earnings in
previous years and to his probable earnings in the future. Probably the earning capacity of the wife has not to be
taken into consideration in assessing maintenance. That is the view of the Indian courts2Although the Indian courts
have not adhered to any rigid rule, in some case they have applied one-third rule. In Leela Devi Srivastava v.
Manohar Lal Shrivastava3the wife was granted a decree of judicial separation on the ground of her husband’s
desertion. The court allowed her one-third of her husband’s income retrospectively. In Harsharan Singh v. Tejinder
Kaur4the Punjab and Haryana High Court granted, one-fifth of husband’s income as maintenance. In Chintagunti
Jagannadham v. Chintagunti Savithramma5the wife was allowed Rs. 40 per month as permanent alimony. The
husband’s income was Rs. 175. In Jagdish v. Manjula6out of the annual income of husband of Rs. 16,500 the wife
was allowed Rs. 400 per month as permanent alimony. In N. Subramanyam v. M.G. Saraswathi7out of the monthly
income of the husband of Rs. 245, wife was allowed Rs. 50 per month as permanent alimony and maintenance.
The court said that there was no arithmetical rule for the fixation of alimony8In Veena Handa v. Awinash Handa9out
of monthly income of the husband of Rs. 2,000 the court allowed Rs. 350 per month to the wife and Rs. 150 per
month for the child of the marriage.

In Sarojini Ratho v. Bhaskar Ratho10on the wife’s plea for permanent maintenance, the husband pleaded that since
wife had received a sum of Rs. 10,000 for compounding proceeding under section 494 of the Indian Penal Code
she is not entitled to permanent maintenance. The court rejected this defence and granted her maintenance.

In Suvaranlata v. Mohan Anandrao Deshmukh11the Supreme Court directed the Family Court to ascertain estimated
income of the respondent husband from the list of assets supplied by the appellant wife for passing final orders.

Periodic payments—secured and unsecured.—Under all matrimonial statutes, the divorce court, while passing
orders for payment of maintenance and alimony, may require the other party—
(a) to make periodical payments to the applicant, or
(b) to make lump sum payments.

The Divorce court has power to take an order that the other party shall make to the applicant such periodical
payments, on such terms, as may be specified in the order. The periodical payments may be monthly or yearly or
by instalments, as the court may specify. Such orders may be unsecured. Under the Parsi Marriage and Divorce
Act, 1936 and the Hindu Marriage Act, 1955 such payments may be secured, if necessary, by a charge on the
immovable property of the other party. The Indian Divorce Act, 1869 and thespecial Marriage Act, 1954 do not
provide for secured orders. Where the order is unsecured, it directs the other party to make payment weekly,
monthly or annually, and if the other party fails to do so, the applicant may bring execution proceedings against him,
in which the property of the other party may be attached and sold. But many a time it becomes difficult to locate the
property of the non-applicant.

On the other hand, if the periodical payments are secured by making them a charge on the property of the other
party, their enforcement becomes easy. Section 38 of the Indian Divorce Act, 1869 and section 41 of the Parsi
Marriage and Divorce Act, 1936 lay down that when a court makes an order for alimony, it may direct the same to
be paid either to wife, herself, or to any trustee on her behalf and may impose any terms or restrictions which to the
court may seem expedient. This would mean that the husband would be required to set aside a fund of capital
which will be generally vested in the trustees and can be resorted to, if the maintenance payments are not made
when these fall due. The same result is achieved when maintenance payments are secured on some property,
preferably immovable Property (Hindu Marriage Act, 1955 talks of immovable property). The property remains that
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of the husband but if he defaults in making payments the secured property is resorted to, and, if need be, part or
whole of it, may be sold to make good the default. The power of the court extends to any property of the other party
whether within or outside the jurisdiction1

The secured payment has two main advantages (i) some specific property is marked out against which payments
can be enforced, whether the husband is present within the jurisdiction or not. On the other hand, enforcement of
unsecured payment depends on husband’s having sufficient means to pay and his being present within the
jurisdiction, (ii) a secured payment may continue for the life time of the wife. The husband may die but the property
remains. On the other hand, the court has no power to order unsecured payments beyond the parties joint life.

Lump sum payments.—The court also has the power to order that maintenance and alimony be paid in lump sum
and in cash. Such lump sum or gross sum (as the Indian statutes call it) are paid for her maintenance or support. In
England, in practice, orders for lump sum payments are usually made in those cases where families are wealthy.
Under the Indian Divorce Act, 1869 orders for gross payment are not qualified by the words “for her life time”2

Variation of Maintenance Orders

It is a well-established rule of matrimonial law that on change of circumstances being shown, an order for
permanent alimony can be varied. All the Indian matrimonial statutes lay down that the court should, inter alia, take
all the circumstances into account while making orders for permanent maintenance and alimony. Sub-section (2) of
section 25 of the Hindu Marriage Act, 1955, sub-section (2) of section 37 of thespecial Marriage Act, 1954 and sub-
section (2) of section 40 of the Parsi Marriage and Divorce Act, 1936 lay down that if the court is satisfied that there
is a change in circumstances of either party at any time after it has made the order for permanent alimony and
maintenance, it may, at the instance of either party, vary, modify or rescind such order in such manner as it may
seem to the court to be just. Under the Indian Divorce Act, 1869 such orders may be modified, discharged or
temporarily suspended or revived if the husband at any time after the order has been made, becomes unable to
make such payment from any cause.

The court has thus power to vary maintenance orders. If the income of the husband increases or wants of the wife
increase, the court has power to increase the amount of alimony1In times of rapid inflation orders for fixed periodical
payments have become unreal.

However, the orders for gross sum or lump sum payment cannot be varied2The early English law laid down that
orders for permanent alimony in favour of the wife were made dum casta, till wife remained unmarried and chaste.
In modern English law this is not so. There is no statutory provision under which such orders can be made dum
casta. But in India, under the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 such orders
are still dum casta. In other words, under these statutes order of permanent alimony remain valid till such time wife
does remarry or remains chaste.

Under all the four statutes it is laid down that orders for permanent alimony and maintenance cannot be made
beyond the life time of the applicant. The death of the applicant terminates such order. If the amount of alimony and
maintenance is not secured, the death of the other party would also bring it to an end.

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 lay down that under certain circumstances
orders for permanent alimony and maintenance may be rescinded. Section 25(3) of the Hindu Marriage Act, 1955
and the section 37(3) of thespecial Marriage Act, 1954 lay down that under the following two circumstances an
order may be rescinded:
(i) if the applicant has remarried,
(ii) if the applicant-wife has not remained chaste, and in the case of the applicant-husband he has had sexual
intercourse with any woman after the decree (the latter provision is applicable only under the Hindu
Marriage Act, 1955, where a needy husband can also secure an order for permanent alimony and
maintenance).

There is a third case also where an order may come to an end. Whenever parties resume cohabitation, whatever
may be the duration of the “living together”, the order would come to an end. This would be so1in the case of a
decree of restitution of conjugal rights and judicial separation under all the statutes. But question of resumption of
cohabitation does not arise in cases of nullity and divorce.
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Enforcement of Orders
Order for alimony and maintenance are enforceable under the Code of Civil Procedure, 1908. These may be
enforced by attachment and sale of the property of the other party (the judgment-debtor). The other party can also
be put in civil prison2

The court has power to issue an injunction restraining the other party from disposing of his property. If the husband
is in arrears, the court may issue an injunction restraining him from receiving dividends from his shares in a
company3

But, it seems, that the provident fund cannot be charged for the payment of the amount of maintenance and
alimony. This flows from the provision of the Provident Fund Act4Similarly, wife’s right to the amount of maintenance
and alimony is not deductible debt from the estate of the husband unless it has been so decreed5

It seems that the wife can pledge the credit of her husband during the period her amount of maintenance and
alimony remains unpaid and the person who has supplied such necessaries to the wife can recover it from the
husband.

Appeal
Since orders for permanent alimony and maintenance are final orders, irrespective of the fact whether they can be
modified subsequently, an appeal lies against such orders6and the cases taking a contrary view are not correct7
(C) MAINTENANCE OF DIVORCED WIFE UNDER MUSLIM LAW

Under Muslim law, marriage does not stand dissolved immediately on death or divorce but continues to be effective
for certain purposes during the period of idda. There is a unanimous view of all authorities that during idda wife is
entitled to maintenance. But most of the writers hold the view that Muslim wife is not entitled to maintenance after
the period of idda is over.

Before the Supreme Court decision in Mohd. Ahmed Khan v. Shah Bano Begum,1the text book writers, including
the present authors,2expressed the view that a divorced Muslim wife was not entitled to any maintenance from her
husband after the expiry of the period of idda. This has been summarized in the third edition of author’s work,
Muslim Law in Modern India, as under:

Muslim law givers lay down different rules regarding the claim of maintenance by the wife when the marriage is dissolved
by death or when it is dissolved by divorce. When the marriage is dissolved by death, the wife is not entitled to maintenance
during the period of idda3
When a marriage is dissolved by divorce, the wife is entitled to maintenance during the period of idda. If the divorce is not
communicated to the wife even after the expiry of the period of idda, she is entitled to maintenance till it is communicated to
her4The Shais and Shafiis lay down that the wife is not entitled to maintenance even during the period of idda, if the
marriage is dissolved in the irrevocable form. They, however, admit that if the irrevocable divorce is pronounced during the
period of pregnancy, the wife is entitled to maintenance until delivery. The Muslim authorities also lay down that if the
marriage is dissolved on account of wife’s apostasy, or for some cause of criminal nature, then she is not entitled to
maintenance even during the period of idda.
One view was that on the expiration of the period of idda, the wife is not entitled to any maintenance under any
circumstances. Muslim law does not recognize any obligation on the part of a man to maintain a wife whom he had
divorced5

Such has been the view that even where maintenance is granted to a Muslim wife under section 488 of the Code of
Criminal Procedure, 1898 (section 125 of the new Code of 1973) and then she is divorced by her husband, she is
not entitled to maintenance. In Mulla Mohamedan Law6there is the following statement:—

Where an order is made for the maintenance of a wife under section 488 of the Criminal Procedure Code and the wife
afterwards, divorced, the order ceases to operate on the expiration of the period of idda. The result is that a Mohamedan
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may defeat an order made against him under section 488 by divorcing his wife immediately after the order is made. His
obligation to maintain his wife ceases in that case on the completion of her idda7

It was in view of this opinion that the Criminal Procedure (Amendment) Act, 1973, remodelled the old section 488
and the new provision (now section 125) and Explanation (b) to clause (i) of section 125 defines “wife” as to include
a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. But
Chandrachud, C.J., felt that even under Muslim Law, a Muslim has an obligation to maintain his divorced wife under
the Muslim Personal Law.

Commenting upon the aforesaid statement of the text book writers, Chandrachud, C.J., observed that these texts
were inadequate to establish the proposition that the Muslim husband is not under any obligation to provide for the
maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus
of the Muslim personal law in order to determine the extent, both in quantum and its duration of the husband’s
liability to provide for maintenance of an indigent wife who has been divorced by him. His Lordship then observed:

We consider it not only incorrect but unjust, to extend the scope of the statement...to cases in which a divorced wife is
unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that
class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife...
The argument of the appellant that according to the Muslim Personal law, his liability to provide for the maintenance of his
divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected.
The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for
her ceases with the expiration of the period of iddat1

Then the learned judge speaking in the context of section 125 of the Code of Criminal Procedure, 1973, observed
that if she is unable to maintain herself she can take recourse to section 125 of the Code. He added that there is no
conflict between the provisions of section 125 of the Code of Criminal Procedure, 1973, and those of Muslim
husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. Then with great
learning, Chandrachud, C.J., proceeds to show that it is wrong to say that under Muslim personal law, the divorced
wife is not entitled to maintenance. He quotes verses 241 and 242 of the Koran:

For divorced woman maintenance should be provided on a reasonable scale.

This is a duty on the righteous.
(Ayat 241).
Thus doth God make clear His signs to you: in order that you may understand.
(Ayat 242)2

The Running commentary on the Holy Koran by Dr. Allamat Khadim Rahmani Nuri on Ayat No. 241 runs thus:

And for the divorced woman also a provision should be made with fairness in addition to her dower. This is a duty
incumbent on the reverent. (1964 Ed).

Muhammed Zafrullah Khan gives the English version of these Ayats thus:

For divorced woman also there shall be provision according to what is fair. This is an obligation binding on the righteous.
Thus does Allah his Commandments clear to you that you may understand1

The translation of Ayats 240-242 as given by the Board of Islamic Publications may also be noted:

Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with
maintenance and should not be turned out of their homes. But they leave their homes of their own accord, you shall not be
answerable for whatever they choose for themselves in a fair way. Allah is all-powerful, all-wise. Likewise, the divorced
woman should also be given something in accordance with the known fair standard. This is an obligation upon the God
fearing people2

It is interesting to note that the All India Muslim Personal Law Board submitted before the Supreme Court that the
exhortation is to the more pious and the more God fearing, not to the general run of the Muslims. Taken to its
logical and the argument would mean that the sinners and the Kafirs are free to avoid the obligations of providing
maintenance or provision for their divorced wives. Then does the Board want to reduce most Muslims to sinners
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and Kafirs? In this context the following observation of Dr. K.R. Nuri in his preface should be read by all including
the members of the Board:

Belief in Islam does not mean mere confession of the existence of something. It really means the translation of the faith into
action. Words without deed carry no meaning in Islam. Therefore, the term “believe and do good” has been used like a
phrase all over the Quran. Belief in something means that man should inculcate the qualities or carry out the promptings or
guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the
Universe, we are to show obedience to his Commandments3

Thus, it is evident that the Koran imposes an obligation on a Muslim to make provision for and provide maintenance
to the divorced wife. The learned judge observed that the contrary argument does less than justice to the teachings
of the Koran4This, it is submitted, in a view not only in consonance with the Koran but also with the concept of
social justice enshrined in the Constitution.

Maintenance of Muslim Wife under section 125 of the Code of Criminal

Procedure, 1973
Under section 125 of the Code of 1973 Criminal Procedure (section 488 of the old code) a wife, whether Muslim or
non-Muslim, is entitled to claim maintenance against the husband on the ground of the husband’s neglect or refusal
to maintain her. That provision lays down: If any person having sufficient means neglects or refuse to maintain his
wife unable to maintain herself, of his legitimate or illegitimate minor child, whether married or unmarried unable to
maintain itself, or his legitimate or illegitimate child, not being a married daughter, (a married minor daughter may
be given maintenance allowance by the Magistrate, until she attains majority, if the Magistrate is satisfied that the
husband of the child is not possessed of sufficient means) who has attained majority where such child is by reason
of any physical or mental abnormality, or injury unable to maintain itself, a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to pay a monthly allowance for the maintenance of his wife or
such child, at such monthly rate, 1***] as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate from time to time directs.

Second proviso to section 125(3) of the Code of Criminal Procedure, 1973 lays down that if the husband offers to
maintain his wife on condition of her living with him, and she refuses to live with him, then the Magistrate may
consider any ground of refusal stated by her, and may make an order for maintenance notwithstanding such offer, if
he is satisfied that there is just ground for so doing. The section also lays down that if he is satisfied that there is
just ground for so doing. The section also lays down that if a husband has contracted marriage with another woman
or keeps a concubine, then it is a just ground for the wife’s refusal to live with him. It would amount to mental and
legal cruelty if it is found that husband is impotent and is unable to discharge his marital obligations. It would
amount to a just cause2

Sub-section (4) of section 125 lays down that no wife is entitled to receive an 3[allowance for the maintenance or
the interim maintenance and expenses of proceedings as the case may be] from her husband, if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by
mutual consent. If a wife who has been allowed maintenance allowance under section 125 is found living in
adultery, or living separately from her husband without sufficient reason or by mutual consent, then the Magistrate
will cancel the order.

The Muslim husband could always defeat wife’s claim of maintenance under section 488 of the Code of Criminal
Procedure, 1898 by pronouncing divorce on her1If this happened, she could claim maintenance under the order of
the Magistrate only till the expiry of the period of idda but not beyond2Section 125 of the new Code defines “wife” as
including a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
In Bai Tahira v. Ali Hussain Fissalli Chothia,3Krishna Iyer, J., in most unequivocal terms observed that every
divorcee-wife, Muslim or non-Muslim, otherwise, eligible, was entitled to the benefit of maintenance allowance and
the dissolution of the marriage under personal law makes no difference to this right4In Zohara Khatoon v. Mohd.
Ibrahim,5the Supreme Court said that “wife” in section 125 and section 127 of the Code of Criminal Procedure, 1973
includes a wife divorced by talak as well as a wife who obtains divorce under the Dissolution of Muslim Marriage
Act, 1939.

Till the decision in Mohd. Ahmad Khan v. Shah Bano Begum,6the words, “whole of the sum which under the
customary and personal law applicable to the parties, was payable on such divorce” in clause (b) of section 127(3)
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were thought to indicate dower or mahr under Muslim law, and the fundamentalists thought that once a Muslim
husband had divorced his wife and paid her dower (irrespective of its quantum, even if it was minimum, i.e., 10
Dirhams), no maintenance order could be passed against him under section 125. Support for the view is drawn
from the observations of the Minister of State for Home Affairs made in Parliament, on Part IX of the Code of
Criminal Procedure, 1973. Two decisions of the Supreme Court also lay down that these words in section 127(3)(b)
refer to dower7

It has been seen earlier that the provisions of the Code of Criminal Procedure, 1973 including those of section 125
are applicable to all persons belonging to any caste, religion, community or nationality, and once it is shown that a
person having sufficient means has neglected or refused to maintain his wife, who is unable to maintain herself, can
be ordered by the Magistrate to pay a monthly maintenance to her at a rate not exceeding Rs. 500. In other words
neglect or refusal to maintain by a person of sufficient means to maintain his wife are the two objective criteria
which determine the application of the section. It is immaterial as to whether the claimant or non-claimant is Hindu,
Muslim, Christian or Parsi. It is also not necessary that both belong to the same religion or community. It is clear
that if personal law of any person is in conflict with the provision of section 125 of the Code of 1973 it is the later
which will have overriding effect. Thus the narrow question to be considered is:

Whether section 127(3)(b) says the Muslim law provision of payment of dower so as to defeat all claims of maintenance of
divorced wife who has been paid mahr money.

The question came for consideration before the Supreme Court in Bai Tahira v. Ali Hussain Fidaali Chotia,1where
parties were married in 1956 and were blessed with a son. But in 1962 marriage broke down and the husband
pronounced talak on the wife. Immediately thereafter litigation ensued between the parties relating to a flat in which
the husband had housed his wife, resulting in a compromise in which wife got the flat. In the compromise, it was
also stated that the husband has paid an amount of Rs. 5,000, as mahr money to the wife. One of the clauses of
the compromise stated: “The plaintiff (wife) declared that she has now no claim or right whatsoever against the
defendant or against the estate and the properties of the defendant.” Sometime later on the relationship between
the two improved but it did not last long, and when the wife found herself in financial straits and unable to maintain
herself, moved the Magistrate under section 125 of the Code of Criminal Procedure, 1973 for the monthly allowance
for maintenance of herself and the minor son. In her petition, the wife proceeded on the assumption that she was
still the wife, but her husband contended that she being a divorcee was not entitled to maintenance under section
125. The wife succeeded in the Magistrate’s Court but the husband succeeded in the first appellate court,2as well
as in the revision petition before the High Court3filed by the wife. When the case came to the Supreme Court,
Krishna Iyer, J., observed that it was obvious that a divorcee wife was entitled to maintenance under section 125.
The two main contentions before the Supreme Court were: (i) since parties were living separately by mutual
consent sub-section (4) of section 125 applied, therefore, she was not entitled to any maintenance, and (ii) since
there was a compromise in 1962 under which mahr money was paid to the wife and all claims adjusted, no claim of
maintenance, in view of section 127(3)(b), could survive. Taking recourse to teleological and schematic method of
interpretation Krishna Iyer, J., observed that meaning of any provision of law should be discerned keeping in view
the values of society and legal system, Article 15(3) of the Constitution has compelling compassionate relevance in
the context of section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and
the derelict divorcee. Parliament, in keeping with Article 15(3) and with deliberate design, made a special provision
to help women in distress, cast away by divorce or neglect. Protection against moral and material abandonment
manifest in article 39 is part of social and economic justice specified in Article 38. The learned Judge then
observed:

“Nor can section 127 rescue the respondent from his obligation. Payment of mahr money, as a customary discharge, is
within the cognizance of that provision. But what was the amount of mahr? Rs. 5,000 interest from which could not keep the
woman’s body and soul together for a day, even in that city where 40 per cent. of the population are reported to live on
payments unless she was ready to sell her body and give up her soul. The point must be clearly understood that the
scheme of the provisions in Chapter IX has a social purpose: ill-used and desperate divorcees shall not be driven to
material and moral dereliction to seek sanctuary in the streets. Thus traumatic horror animates the amplitude of section
127, where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee, a
subsequent series of recurrent doles is contrain-dicated and the husband liberated1

It would appear that in this case, the Supreme Court accepted that section 127(3)(b) relates to payment of dower
under Muslim law. This becomes obvious from the following observation of Krishna Iyer, J.

The payment of illusory amount by way of customary or personal law requirement will be considered in the
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reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanction
of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom.

If the first payment by way of mahr as ordained by custom has a reasonable relation to the object and is capitalized
substitute for the order under section 125— not mathematically but fairly—then section 127(3)(b) sub-serves the
goal and relieves the obligor, not pro tanto, but wholly. The purpose of the payment under any customary or
personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain
herself…There must be a rational relation between the sum so paid and its potential as provision for maintenance.

The Supreme Court laid down the proposition thus:

No husband can claim under section 127(3)(b) absolution from his obligation under section 125 towards a divorced wife
except on proof of payment of a sum stipulated by customary or personal law, whose quantum is more or less sufficient to
do duty for maintenance allowance.

In short, the purpose of section 127(3)(b) is simply this that a wife cannot be allowed double benefit, one of the
customary or personal law payment and the other of the payment under section 125. But if the former is
inadequate, the court has power to award maintenance under section 125.

The decision in Bai Tahira’s case was castigated by the fundamentalists as an interference in the Muslim personal
law, and even a mild mannered progressive professor of law, Tahir Mahmood thinks that nexus between dower and
clause (b) of section 127 should be retained, though he calls Tahira’s case a liberal ruling conforming to the spirit of
Islamic law2Tahir Mahmood says that Parliament had added section 127(3)(b) to section 125 in order to protect
Muslim law relating to divorced wife’s right of maintenance2 and is critical of the observation of Khalid, J., who holds
that section 127(3)(b) does not protect the rule of Muslim law and that a Muslim husband cannot avail it for the
cancellation of the maintenance order passed against him1Tahir Mahmood considers these decisions as erroneous.
It is submitted that Bai Tahira’s case lays down that if the amount of dower paid to the wife is sufficient to provide
her maintenance, then she cannot claim for maintenance under section 125, but if it is insufficient she can still claim
maintenance. The amount of dower-money paid to the wife could be considered in the reduction of the amount of
maintenance but could not annihilate that rate unless it was a reasonable substitute.

Reiterating Bai Tahira’s case in Fazlunbi v. Khader Vali,2Krishna Iyer, J., said whatever be the facts of a particular
case, the Code of enacting sections 125 to 127 charges the Court with humane obligation of enforcing maintenance
or its just equivalent to ill-used wives the castaway ex-wives only if the woman has received voluntarily a sum at the
time of divorce, sufficient to keep her going according to the circumstances of the parties. The learned judge added,
“Neither personal law nor other salvationary plea will hold against the policy of public law pervading section
127(3)(b) as much as it does section 125. So a farthing is no substitute for a fortune nor naive consent equivalent to
intelligent acceptance3

Both the Supreme Court decisions do seem to lay down that “dowry” is included in section 125(3)(b) and is a sum
payable on divorce under any customary or personal law. If dower-amount is sufficient to enable her to maintain
herself, no order of maintenance need be made. If, on the other hand it is not sufficient, the Court has power to fix
the amount of maintenance as it considers just and proper, though in fixing of the quantum of maintenance, it will
take into consideration the amount of mahr paid to her; it will be considered for the reduction of the amount of
maintenance. Both these decisions do not lay down that on payment of dower, howsoever negligible it may be, the
husband is absolved totally of his obligation to pay maintenance under section 125. This precisely was the view
taken by a Bench of Bombay High Court4and approved and followed by a Full Bench of the Kerala High Court5

The Bombay High Court held that while there were no words restricting the right to entertain an application for
maintenance in section 127 itself, the rule of harmonious construction required that section 125(3)(b) must be read
and understood as a proviso to section 125. So understood, the Bombay High Court added, section 127(3)(b) would
restrict the power of the Magistrate to entertain an application for maintenance at the instance of the divorced wife,
and a divorced wife who had been paid mahr amount and maintenance during idda could not claim maintenance
under section 125. It was of no consequence as to what was the quantum of dower. This view was approved by a
Full Bench of Kerala High Court which also overruled a different view taken by a Bench of the Kerala High
Court1Khalid, J., in a Division Bench2case observed:

Thus section 127 provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or
personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious
husband to defeat the provision contained in section 125. We would like to make clear that section 127(3)(b) refers not to
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maintenance during the period of idda or payment of dower... It is therefore, not a sum of money which under the personal
law is payable on divorce as expressed in section 127(3)(b).

Confronted with the question as to what is excluded in section 125(3)(b) the learned judge said:

What is impliedly covered by this clause is such some of money as alimony or compensation made payable on dissolution
of marriage under customary or personal law codified or uncodified, or such amount agreed upon at the time of marriage to
be paid at the time of divorce, the wife agreeing not to claim maintenance or any other amount.3
(Emphasis authors’)

The learned judge did err in reading the words: “The wife agreeing not to claim maintenance or any other amount”
in this section. This seems to have occurred on account of his quest to find out the meaning of the clause. Krishna
Iyer, J., rightly observed that Khalid, J., fell short of going full extent as his exposition of law and would excuse the
husband if he pays a sum which the ignorant wife at the time of marriage has agreed upon to relinquish
maintenance after divorce4In view of the construction placed by him on the clause, Krishna Iyer, J., felt that the
Kerala Full Bench decision also fell short as it did not insist on an adequate sum which would yield a recurring
income to maintain the divorce in future and therefore it laid down a bad law5

Khalid, J.’s view that clause (b) of section 127(3) does not include dower within its compass has found a clear and
unequivocal support from unanimous Bench of five judges of the Supreme Court (Y.V. Chandrachud, C.J., D.A.
Desai, O. Chinnappa Reddy, E.S. Venkataramiah and Rangnath Misra, JJ.1Chandrachud, C.J., who delivered the
judgment of the Bench, though agreed with the basic reasoning of Krishna Iyer, J., in Bai Tahira’s case and
Fazlunbi’s case disagreed and over ruled the following formulation. “Payment of mahr money as a customary
discharge, is within the cognizance of section 127(3)(b).”

The unfortunate story of Shah Bano Begum, married to an advocate one Mohd. Ahmed Khan, way back in 1932,
gave birth to three sons and two daughters, is that in 1975 she was driven out of the matrimonial home by her
husband. Lacking means of subsistence she knocked the gates of Magistrate’s Court in 1978 claiming maintenance
from her husband at the rate of Rs. 500 per month. On November 6, 1978 he pronounced talak on her in talak-a-
bidaun form (irrevocable divorce) and pleaded before the Magistrate’s Court that since he had divorced his wife, he
was under no obligation to provide maintenance for her. He also averred that he had paid maintenance to her at the
rate of Rs. 200 per month for about two years and had also deposited a sum of Rs. 3,000 in the court by way of
mahr money. The Magistrate directed the husband to pay a “princely sum” of Rs. 25 per month. On appeal, the
High Court enhanced it to Rs. 179.20 per month. (The wife had averred that her husband’s annual professional
income was Rs. 60,000). Against this order, the husband landed in the Supreme Court.

The interesting aspect of the judgment of Chandrachud, C.J., is that after holding categorically that in case there is
any conflict between the personal law (any personal law, Hindu, Muslim, Parsi and others) and section 125 of the
Code of Criminal Procedure, 1973 the latter would prevail. He proceeds to find out whether in fact there is any
conflict and comes to the conclusion that there is none.

After quoting from certain text-books2to the effect that on expiration of the period of idda, husband’s obligation to
maintain the wife ceases, the learned judge said that these statements in the text-books are inadequate to establish
the proposition that a Muslim husband is not under an obligation to provide maintenance to his divorced wife who is
unable to maintain herself3The learned judge added “we are of the opinion that the application of those statements
of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out
of the indigence of the divorced wife”3. It is submitted that the question of maintenance of a divorced wife arises
only when she is indigent, and this is so under practically all personal laws as well as under section 125 of the Code
of Criminal Procedure, 1973. If the wife (divorced or undivorced) has ample or adequate independent means of
maintenance, the question of maintenance, or alimony and maintenance (in ancillary proceedings under the Hindu
Marriage Act, 1955, thespecial Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936 and the Indian
Divorce Act, 1869) does not arise. The question arises only when she has no adequate means to maintain herself.
Otherwise, the question hardly arises (particularly, after divorce), though in some systems of law, including Hindu
and Muslim, it is the personal obligation of a husband to maintain his wife (undivorced wife) irrespective of the fact
whether she has or has not sufficient independent means to maintain herself. After quoting certain verses from
Koran1to the effect that Muslim husband has no obligation to maintain his indigent divorced wife, his Lordship said
that the argument of the husband that according to the Muslim personal law his liability to provide for her
maintenance was limited to the period of idda despite the fact that she was unable to maintain herself, was to be
rejected. His Lordship then observed:
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The true position is that, if the divorced wife is unable to maintain herself, the husband’s liability to provide maintenance to
her ceases with the expiration of the period of idda. If she is unable to maintain herself, she is entitled to take recourses to
section 125 of the Code2

And thus no conflict between the Muslim personal law and section 125 of the Code of Criminal Procedure, 1973
was found.

On the question, whether mahr- money was a sum payable to the wife under Muslim personal law within the
meaning of section 125(3)(b), of the Code of Criminal Procedure, Chandrachud, C.J., observed that mahr was not a
consideration for marriage but an obligation imposed upon the husband as a mark of respect for his wife, and was
therefore not a sum payable on divorce3In the words of his Lordship:

... But, the fact that deferred mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is
payable ‘on divorce’. Even assuming that, in a given case, the entire amount of mahr is of the deferred variety payable on
the dissolution of marriage by divorce it cannot be said that it is an amount which is payable on divorce. Divorce may be a
convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the
payment of the amount is not occasioned by the divorce, which is that is meant by the expiration ‘on divorce’, which occurs
in section 127(3)(b) of the Code. If mahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage that is the very opposite of the amount being payable in consideration of divorce. Divorce
dissolve the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described
as an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And, he
may settle a sum upon her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum
payable on divorce1

No one would disagree with the above observations. But it is submitted that the following two propositions of Muslim
Law have been well settled either on account of opinions expressed by text-book writer or on account of (stare
decisis):
(i) Muslim husband has no obligation to maintain his divorced wife after the termination of the period of idda;
and
(ii) Dower—deferred dower, to be more precise—has been considered to be a sum payable on divorce.

It is submitted that under the Muslim personal law, a divorced wife cannot claim maintenance or alimony (to use the
expression of English matrimonial law), though a Christian, Parsi, Hindu wife, or a woman married under the
Special Marriage Act, 1954 can do so by filing a petition in the matrimonial court. However, she can claim
maintenance under section 125 of thecode of Criminal Procedure, 1973. In view of this, we should accept that
Muslim personal law to that extent has been abrogated by section 125 of the Code of Criminal Procedure, 1973.

Secondly, suppose the entire sum of mahr money has been paid soon after the marriage and ultimately and
unfortunately there is divorce between the parties, there remains no sum of dower to be paid to her on divorce and
thus section 127(3)(b) of the Code cannot be attracted. Now, suppose the entire dower is deferred and it consists of
substantial sum of money—say Rs. 50,000 or Rs. 80,000—and is paid soon after divorce. Chandrachud, C.J., says
that even in such a case it cannot be said that this is an amount “payable on divorce” 1. Whether or not it is
regarded as a sum payable on divorce, since it has been in fact paid on divorce, will the Magistrate not take this
sum into consideration while fixing the quantum of maintenance under section 125? Can be brush aside the
payment of this amount by saying that since dower-money is not “payable on divorce”, even if it is paid on divorce
or after divorce, it cannot be taken into consideration? It is submitted that the Magistrate will have to take this sum
into consideration while fixing the amount of maintenance and if he comes to the conclusion that this amount is
sufficient to maintain her, he will have to give a finding that she is not unable to maintain herself and therefore no
maintenance amount need be given to her. At the same time it would be wrong to say that any insignificant amount
of maintenance such as, 10 Dirhams2would be an amount “payable on divorce” under personal law and in terms of
section 127(3)(b) the husband will stand absolved of his responsibilities and the Magistrate is bound to cancel the
maintenance order, if already passed by him under section 125? It would thus equally be incorrect to say, as
Bombay High Court said, that section 127(3)(b) is a sort of exception to section 125 of the Code.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

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The Supreme Court decision in Shah Bano’s case was subject to a prolonged agitation by Muslim fundamentalists,
resulting in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is claimed, inter alia,
that the Muslim woman would get much more under the Act than section 125 of the Code of Criminal Procedure,
1973 and that the Act should be welcomed as the first step towards codification. The Bill was drafted with the
assistance of the All India Muslim Personal Law Board, with which were associated some so-called Muslim experts
in personal law. The oft-repeated argument was also advanced that no Muslim country has such a law. (Again, it is
conveniently ignored that at least nine Muslim countries have the laws under which a divorced wife can claim
maintenance against her husband, in some form or the other.)

It is argued that since Muslim concept of marriage is different from the Hindu concept inasmuch as, it is asserted,
there is no transfer of dominion over the girl from the father to the husband, and that under Muslim law marriage
merely means a temporarily shift of the responsibility from father to husband, and no dissolution of marriage the
responsibility towards woman comes back to her father’s family. It is argued that why only one person (i.e.,
husband) should be responsible to maintain his divorced wife? Is it a penalty on him for divorcing his wife? These
are misconceived arguments. The obligation to maintain one’s wife all over the world, in all patriarchal societies,
arises out of intimateness of the spousal relationship, and not because marriage is regarded as sacrament or
contract. Since in all patriarchal societies, the woman was not a bread-winner, this obligation was extended towards
the divorced wife. In our contemporary society it is a projection of equality that in some countries the spousal
relationship to maintain has been made reciprocal. Thus under Hindu law and Parsi law not merely a wife but a
husband can also claim maintenance from the other spouse the only condition being that he or she has not
sufficient means to maintain himself or herself. Thus, it is submitted that the spousal obligation to maintain arises on
account of intimateness of the relationship and thus the difference between the concepts of marriage is hardly
relevant. The argument that the Act imposes obligation on more than one person is illusory. It is asserted by the
protagonists of this view that to impose the responsibility to maintain an indigent Muslim woman on one person (i.e.
husband) is an insult to woman’s dignity. But, it seems, it is not insult to her dignity to leave her destitute, and let her
beg for maintenance from one relation after another. Whether it will be effectively available against father (who may
be dead or very old or dependent on others) and other relatives. Whether a divorced woman’s claim of maintenance
can have priority over other near relations of the person against whom it is claimed.

It is interesting to note that court by a simple reading of the provisions of the Act have so interpreted them as to give
them a progressive mould, so that the statute really provides protection to a divorced Muslim wife.

Preamble and the basic aims of the Act.—The Preamble of the Act spells out the objectives of the Act as “the
protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their
husbands”. The Act makes provision for matters connected therewith or incidental thereto. It is apparent that the Act
no where stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act,
has been abrogated, taken away or abridged.

The Act lays down that—

(a) A divorced women is entitled to have a reasonable and fair provision and maintenance from her former
husband, and the husband must do so within the period of idda and his obligation is not confined to the
period of idda.
(b) If she fails to get maintenance from her husband, she can claim it from relatives, failing which, from the
wakf Board.
(c) An application of divorced wife under section 3(2) can be disposed of under the provisions of sections 125
to 128 of the Code of Criminal Procedure, 1973, if the parties so desire.
(d) Applications pending under section 125 of the code are required to be disposed of under the Act (section
7)1
(e) There is no provision in the Act which nullifies orders passed under section 125 of the Code. The Act also
does not take away any vested right of the Muslim women2
(f) The provision is made under the Act and the Rules framed thereunder for the expeditious disposal of
applications, and hearing should be ordinarily, continued from day-to-day.
(g) All obligations of maintenance end with her remarriage.

The Act, thus, secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the
street without a roof over her head and without any means of sustaining herself.
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Protection to Divorced Woman.—Sub-section (1) of section 3 of the Act lays down that a divorced Muslim women
is entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the idda period by her
former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by her former husband for a period of two years from the
respective dates of birth of such children (this does not mean that a Muslim has no obligation to maintain
his children thereafter);
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any
time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or
friends or the husband or any relatives of the husband or his friends.

In case on divorce the husband has failed to secure any of the above, the wife or her authorized agent may sue the
husband by making an application before the Magistrate for necessary orders. In case the Magistrate is satisfied
that compliance to the aforesaid have not been made by the husband, he will make an order, within one month of
the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may determine as fit and proper having regard to her needs of life as
lived by her during her marriage and the means of her former husband, or as the case may be. He may also pass
orders for the payment of dower as well as for the delivery of her properties in his possession.

Sub-section (4) of section 3 stipulates for action against the defaulting husband. The Magistrate may issue a
warrant for levying the amount of maintenance or dower due to the wife in the manner provided for levying them
under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or part of any amount
remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or
until payment if sooner made. It should be noticed that section 3(1) begins with non-obstante clause, and lays down
that a divorced woman is entitled from her former husband, inter alia:
(a) a reasonable and fair provision, and
(b) a reasonable and fair maintenance.

It should be noticed that no period is specified during which divorced wife is entitled for “provision” and
“maintenance”.

Within the period of Iddat.—Section 3(1)(a) of the Act lays down that the husband has to make a reasonable and
fair provision and maintenance for the divorced wife “within” the period of idda. What is the meaning of the word
“within”? Does it specify the duration during which only the wife is entitled for maintenance? Or, does it quantify the
period within which the husband must make a reasonable and fair provision and maintenance for the wife?

That the word “within” quantifies the time in which the husband must discharge his obligation is evident from the
tenor of the provision. Broadly, the duration of idda is three months (as it has been seen earlier, the duration of the
period of idda varies from situation to situation). If the husband fails in his obligation, then the wife or her authorised
agent may make an application to the Magistrate, and the Magistrate must ordinarily decide the application “within”
a period of one month. The Magistrate is required to satisfy himself that:
(i) husband has sufficient means, and
(ii) husband has failed or neglected (the same words have been used in section 125(1) of the Code of
Criminal Procedure, 1973) to make or pay the wife within the period of iddat a reasonable and fair provision
and maintenance to her.

In fixing the reasonable and fair provision and maintenance, the Magistrate will have regard to—
(a) the need of the divorced woman, and
(b) standard of life enjoyed by her during her marriage.
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It may be emphasised that apart from fixing the fair and reasonable provision and maintenance for the wife, the
Magistrate may also order the payment of dower amount if the same has not been paid, order the return of wife’s
property held by the husband, and fix an amount of maintenance for the children.

The question came before the Gujarat High Court in A.A. Abdulla v. A.B. Mohmuna Saiyadbhai,1Shah, J., after
quoting dictionary meaning of the word “within” observed that the word means “on or before”, “not beyond”, “not
later than” and cannot mean during, and one is not permitted to construe the same contrary to the natural meaning
of the word. Thus, the word within would mean that on or before the expiration of idda period, the husband is bound
to make and pay a reasonable and fair provision and maintenance to the wife. If he fails to do so, then the wife is
entitled to recover it by filing an application before the Magistrate as provided in sub-section (2) of section 3.
Nowhere Parliament has provided that reasonable and fair provision and maintenance is limited only for the idda
period or that it is to be paid only during the idda period and not beyond it.

It is submitted that this is so is made clear by the entire tenor of the Act.

The Act provides a time frame within which the husband is required to make provision and maintenance for his wife.
It has to be done within the idda period. In other words, divorced wife is entitled to have a reasonable and fair
provision and maintenance to be made and paid to her within the idda period by her former husband. Under section
3(3) of the Act whereunder the Magistrate is required to pass an order for maintenance, there is no limitation on him
that he should limit his order for the duration of idda. The objective criterion laid down by parliament is that the
Magistrate should take into consideration the needs of the divorced woman. As an application under section 3(2)
may also be filed by the divorced wife after the idda period if the husband fails to provide a reasonable and fair
provision and maintenance within the idda period. There was no necessity to provide that the Magistrate should
consider the needs of the divorced woman because that application would be made for determination before the
Magistrate after the idda period is over.

In sum, the following two propositions are laid down:—

(i) A fair and reasonable amount of maintenance has to be provided by the husband to the wife during the
period of idda.
(ii) A fair and reasonable provision is to be made by the husband during the period of idda for the divorced
wife after the period of idda, till she remarries.

This view has the support of a Division Bench of Kerala High Court which rendered judgment in Ali v. Sufaura.2But
a contrary view has been expressed by a Full Bench (by two to one majority) of the Andhra Pradesh High Court in
Usman Khan v. Fathimunissa.3Sardar Ali Khan, J., interestingly, quotes all the text-book writers (such as Amir Ali,
Faizi and Mulla but not this author who was quoted by the Supreme Court in Shah Bano) who, interpreting Islamic
law (including obviously the Koran which is the fundamental source of Islamic law) took the view that under Muslim
law husband has no obligation to maintain his wife. Then he quotes Tahir Mahmood who says that “the assumption
by the Supreme Court of the function to interpret the holy Koran was absolutely uncalled for”1(It seems that only
Mulla and Tahir Mahmood have the privilege of interpreting the Koran. Tahir Mahmood goes wrong when he says
“would any modern court anywhere in the world attempt to interpret the Rigveda?”) In the Indian courts have all long
interpreted the Vedas and the Smiritis.

In Shah Bano’s case, Chandrachud, J., after interpreting certain verses of Koran said that under Muslim law also
the husband has the obligation to maintain a divorced wife (apart from section 125 of the Code of Criminal
Procedure). This is the law laid down by the highest court and is binding on all courts (even if some so-called
scholars and protagonists of Muslim law do not agree with this formulation). But Khan, J., amusingly, says that pre-
1986 Act law did not impose any obligation on the husband to maintain his divorced wife. Since the learned judge
was on wrong premises, he goes on erring. According to him “to hold that while maintenance may be payable for
and during the period of idda, a fair and reasonable provision shall be made by her husband forecasting her future
needs would amount to negation of the very object for which the Act of 1986 has been promulgated”.

Then, the learned judge falls into his own trap when he says, “It would give rise to a new concept of liability on the
part of the husband which would be difficult to be translated in concrete terms as it would be almost impossible to
visualize the future needs of a divorced Muslim woman which would be depending upon several factors like her
remarriage, change in the circumstances or in the life style, etc.”, under the Matrimonial statute of all other Indian
communities and abroad, the court has power to order permanent alimony and maintenance. The matrimonial court
awards either periodical or lump sum payments. If there is no difficulty in fixing the amount of maintenance in other
systems, it is submitted, there need not be any difficulty under Muslim law. The court can follow the same principles
for fixing the amount of fair and reasonable provisions and maintenance. On the basis of priori assumption, the
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learned judge reaches to the following conclusion: “we are of the opinion that the liability to pay reasonable and fair
provision and maintenance on the part of the former husband is confined only for and during the period of iddat.
Even if it is taken for granted for a reasonable and fair provision is to be made separately from that of maintenance
to be given to the wife, such reasonable and fair provision is confined only for the period of iddat, as defined in
section 2 of the Act.”

Dissenting from this view, Bhaskar Rao, J., uses the same reasoning as was used by Shah, J., of the Gujarat High
Court. The learned judge said that divorced woman’s right to maintenance was never in doubt. On the wake of
Shah Bano’s case which crystallized the right of fair and reasonable provision for divorced women after idda was
under a threat of erosion and needed protection. The Act of 1986 has done that. Section 3 casts a liability on the
husband to make a reasonable and fair provision apart from the payment of maintenance, within the iddat period,
and section 5 gives option to the parties to choose to be governed by sections 125 and 128 of the Code of Criminal
Procedure, 1973 or under the Act.

In a case, the court observed and held that the fact of the matter clearly shows that the dispute between the parties
to the marriage arose out of the properties claimed by one spouse against the other. The respondent herein made a
categorical statement to the effect that the properties were purchased out of the amount paid in cash or by way of
ornaments and the source of consideration for purchasing the properties described in Schedule ‘A’ and ‘B’ of the
suit having been borne out of the same, the appellant herein was merely a trustee in relation thereto and could not
have claimed any independent interest thereupon. It is also apparent that whereas the agreement marked as
Exhibit A1 was executed on 17-9-1994, the appellant pronounced Talaq on 1-11-1995. The wordings ‘disputes
relating to marriage and family affairs and for matters connected therewith’ must be given a broad construction. The
Statement of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court extends, inter
alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by
the parties thereto as a spouse of other, irrespective of whether property is claimed during the subsistence of a
marriage or otherwise. That the words “a suit or proceeding between the parties to a marriage should refer to
parties to a subsisting marriage would lead to miscarriage of justice. The Family Court was set up for settlement of
family disputes. The reason for enactment of the said Act was to set up a Court which would deal with disputes
concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings.
The said Act was enacted in view of the fact the Order 32A of the Code of Civil Procedure, which was inserted by
the Code of Civil Procedure (Amendment) Act, 1976, could not bring about any desired result. It is now a well-
settled principle of law that the jurisdiction of a Court created specially for resolution of disputes of certain kinds
should be construed liberally. The restricted meaning was ascribed to Explanation (c) appended to section 7 of the
Act, would frustrate the object wherefor the Family Court were set-up.1

Tanqeer Usmani v. State of Jharkhand2is a different sort of a case. Here the divorced wife claimed her mehr within
iddat period. Husband claimed that he had paid the same on the order of panchayat to her brother. But wife’s
signature was also not on the document, also no reason as to why mehr was paid to brother of wife in spite of the
fact that she was also present. Hence, husband held liable to pay.

Fair and Reasonable Provision and Maintenance

It should be noticed that section 3 of the Act speaks of “provision and maintenance”, while section 4 talks only of
maintenance. These two expressions in the former section have been used specifically to widen the scope of
protection to divorced woman. Then word “provision” indicates that something has to be provided in advance for
meeting the needs of the divorced wife. This means that at the time of giving divorce the Muslim husband is
required to visualize the extent of the future needs of the wife and make preparatory arrangement in advance for
meeting the same. May be, provision is made that every month a particular amount is to be paid to the wife; may
be, residential accomodation for her is provided; may be some property is reserved for her out of the income of
which she can satisfy her needs. Thus, reasonable and fair provision may include provision for her residence, food,
clothes and other needs. Her husband may pay her some fixed amount or may agree to pay it periodically. That
would also be a provision. Therefore, the “provision” itself contemplates future needs of divorced woman.

If husband fails to provide her with the provision and maintenance, on the application of the divorced wife, the
Magistrate will pass an order for the same. While passing the order the Magistrate has to be satisfied that—(i) her
husband is having sufficient means, and (ii) he has failed or neglected to make or pay provision and maintenance
for her. After taking into consideration the aforesaid facts, he can pass an order directing the husband to make
provision and maintenance to the divorced wife as he may determine fit and proper having regard to—(a) the needs
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of the divorced woman, (b) the standard of life enjoyed by her during her marriage, and (c) the means of her former
husband.

While under section 125 of the Code of Criminal Procedure, 1973 there is the maximum limit of maintenance—it is
Rs. 500, under the Act there is no such limit. In the case of an affluent husband it has to be commensurate with his
status.

In Usman Khan v. Fatheimunnisa Begum,1Sardar Ali Khan, J., says that words “provision” and “maintenance” in
section 3(1)(a) of the Act convey the same meaning. Bhaskar Rao, J., in his dissenting judgment says that both
words have different meanings. Repelling the argument that Parliament with a view to avoiding confusion clubbed
the two words without meaning to give them separate meanings the learned judge said that this argument is too far
fetched and is incapable of being reconciled with—(i) preamble of the Act, (ii) with section 4 of the Act which uses
only “reasonable and fair maintenance” and omits the word “provision”, and (iii) with section 5 of the Act which
confers an option on the parties.

After quoting dictionary meaning and from the Supreme Court decision in Metal Box Company v. Worker,2Rao, J.,
said that the word ‘provision’, means an amount set apart to meet a known liability, the amount of which cannot be
decided with accuracy. The known liability under section 3(1)(a) of a husband is to provide for the future needs of
the divorced wife. Thus, the word “provision” is surely different and distinct the word “maintenance”. On the other
hand, maintenance means the act of providing means of support for someone:
(a) A reasonable and fair amount of maintenance has to be paid by a husband to his divorced wife during the
period of iddat.
(b) A reasonable and fair provision is to be made by the husband for his divorced wife after idda till she
remarries.
(c) Provisions for both the above have to be made during the period of iddat.

A reading of the Muslim Women (Protection of Rights on Divorce) Act will indicate that it codifies and regulates the
obligations due to a Muslim woman divorcee by putting them outside the scope of section 125, Cr. P.C., as the
‘divorced woman’ has been defined as “Muslim woman who was married according to Muslim law and has been
divorced by or has obtained divorce from her husband in accordance with the Muslim law”. But the Act does not
apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a
Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage
Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is
to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period
of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the
responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which
relatives are responsible under which circumstances. It there are no relatives, or no relatives are able to support the
divorcee, then the Court can order the State Wakf Boards to pay the maintenance. A comparison of provisions
sections 3 and 4 of Act with section 125, Cr. P.C. will make it clear that requirements provided in section 125 of Cr.
P.C. and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so, to
support those who are unable to support themselves and who have a normal and legitimate claim to support, is
satisfied. The object and scope of section 125, Cr. P.C. is to prevent vagrancy by compelling those who are under
an obligation to support those who are unable to support themselves and that object being fulfilled, it is difficult to
accept the contention that remedy to avoid vagrancy is denied to Muslim women. The Magistrate has been
conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier
granted by a Magistrate under section 125, Cr. P.C. would now be granted under the very Act itself. This being the
position, the Act cannot be held to be unconstitutional.1

In M. Alavi v. T.V. Safia,2the Kerala High Court took the view that even a divorced wife who is living in adultery (i.e.,
leading unchaste life) is entitled to maintenance from her former husband.

Maintenance from Other Relations and Wakf Board

Section 4 of the Act lays down that notwithstanding anything contained in section 3, a divorced woman is entitled to
file an application for maintenance from her relatives or Wakf Board, she is not in a position to maintain herself and
if she has not been able to obtain any fair and reasonable maintenance from her husband. For the application of
section 4, following two requirements should be satisfied:—
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(i) she is not able to maintain herself after the iddat period, and
(ii) she had not remarried.

Parliament contemplated that even if reasonable and fair provision and maintenance is made and paid to the
divorced woman within the idda period, yet she can file an application for maintenance is she is unable to maintain
herself from the amount received, or provision made for her by her husband as required under section 3(1)(a). It
should be noted that clauses (a) and (b) of sub-section (1) of section 3 speak of reasonable and fair maintenance.
Section 4 contemplates a situation where the divorced women is not in a position to maintain herself after receiving
gross sum for maintenance from her husband or provision which is found to be reasonable and fair at the time of
taking divorce, but is no longer sufficient to maintain her. In such a case she is entitled to file an application for
maintenance and get it from her relatives, such as her children or her parents. If they are not in a position to pay it,
then she can claim it from the Wakf Board.

It is submitted that on reading section 3 and section 4 together, it is abundantly clear that Parliament wanted to
accord full protection to the divorced woman so that she does not become destitute.

The children of Muslim parents are entitled to claim maintenance under section 125, Cr. P.C. for the period till they
attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married.
This right is absolute, notwithstanding the fact that minor children are living with divorced wife. Further, the right is
not restricted, affected or controlled by divorcee wife’s right to claim maintenance for maintaining the infant children
in her custody for a period of two years from the date of birth of the child concerned under section 3(1)(b) of the
1986 Act. In other words section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children
of divorced Muslim parents to claim maintenance from their father under section 125, Cr. P.C. till they attain
majority or are able to maintain themselves, or in the case of females, till they are married1

The liability of the relatives other than the children and the parents, follows sequentially, subject to the conditions as
embodied in the proviso. The liability of the relatives does not depend on the contingency that the divorced woman
has property which they would inherit. It looks incongruous though that a divorced woman having property would
yet be unable to maintain herself. Seemingly, the phraseology has been employed to ascertain firstly, such of those
relatives who could have inherited her property, fictionally on the basis that she could be having property, and
secondly as if she had died on the date when the need for identification arose, The speculative plea of any relative
that he or she may not be available to be an heir on the date when the divorced woman would actually die, would
neither be here nor there.2

Provisions of the Act and sections 125-128 of the Code of Criminal

Procedure are not Inconsistent
Section 5 of the Act gives option to the parties (wife and husband) when they first appear before the Magistrate on
the application of the wife under section 3, to be governed by the Act or by section 125 of the Code of Criminal
Procedure, 1973. This would prima facie indicate that there is no inconsistency between the two provisions. If there
was inconsistency Parliament would not have given any option to the parties. Further, if section 3(1)(a) is
interpreted to mean that the former husband is bound to provide maintenance only for idda period then in no set of
circumstances it can be expected that a former husband would pay future maintenance because it is difficult to
imagine that the person who has divorced his wife would be so chivalrous as to agree to pay future
maintenance1The result would be that in almost all cases divorced women would like to be governed by the
provisions of section 125 of the Code and the former husband would refuse to be governed by the provisions of
section 125. It can be imagined that Parliament would not pass an Act which gives absolute discretion to the former
husband and leave a divorced woman at his mercy and sweet will?

There is no provision in the Act which goes to nullify any order passed under section 125 of the Code. Once an
order under section 125 of the Code granting maintenance to the divorced woman is passed, then her rights are
crystallized and she gets vested right to recover maintenance from her former husband accordingly. There is no
provision in the Act which takes away the vested rights1. Under section 5, an option is given to the parties to be
governed by the provision of sections 125 to 128 of the Code of Criminal Procedure, 1973 or the Act. Section 7 only
provides that an application by divorced woman under section 125 of the Code of Criminal Procedure, 1973, which
is pending before the Magistrate on the commencement of the Act shall be disposed of (subject to the provisions of
section 5 of the Act) by the Magistrate in accordance with the provisions of the Act. Section 7 of the Act clearly
indicates that there is no inconsistency between the two provisions, though provisions of the Act, are more
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beneficial to the woman as there is no limit of the quantum of maintenance, while under section 125 of the Code of
Criminal Procedure, 1973, there was the limit of Rs. 500 which was omitted by Act 50 of 2001 w.e.f. 24-9-2001.

In sum, an order passed by the Magistrate before the coming into force of the Act is enforceable, but no application
by divorced wife under section 125 of the Code of Criminal Procedure, is maintainable after the coming into force of
the Act unless the spouses so choose in exercise of the option given to them under section 7 of the Act of 1986. But
in some decisions a contrary view has been taken, i.e., an order passed under section 125 of the Code of Criminal
Procedure, 1973, before the Act came into force could not be enforced. This is an erroneous view as vested right
cannot be taken away by a statute unless an express provision has been enacted.2

Maintenance: Second Marriage

A marriage was performed by a person professing the Muslim faith with his wife’s sister, while his earlier marriage
with the other sister was still subsisting would be irregular and not void in law. Since a marriage which is temporarily
prohibited may be rendered lawful once the prohibition is removed, such a marriage is irregular (fasid) and not void
(batil). Therefore, the Bar of unlawful conjunction renders a marriage irregular and not void. Consequently, under
the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in
accordance with law and the wife and the children of such marriage would be entitled to maintenance under the
provisions of section 125 of Criminal Procedure Code.1
MAINTENANCE OF CHILDREN OF MARRIAGE

Under clause (b) of sub-section (1) of section 3 of the Act a divorced woman is entitled to be paid for the
maintenance of her children. That clause runs: A divorced woman shall be entitled to where she herself maintains
the children born to her before or after her divorce, to a reasonable and fair provision and maintenance to be made
and paid by her former husband for a period of two years from the respective dates of birth of such children. On the
failure of the husband to make this payment, the coercive machinery for the realization of the same laid down in
sub-sections (3) and (4) could be used. Does this mean that the Muslim father’s obligation to maintain his children
lasts only for two years after the birth of the child if the marriage is dissolved by divorce? Under all the schools of
Muslim law father’s obligation to maintain his children of both sexes continues till children attain majority2The
obligation to maintain those adult children is also recognized who are disabled on account of some disease, or
physical or mental infirmity, or are engaged in some study. In case of adult unmarried daughter also father’s
obligation to maintain her exists provided she is not able to maintain herself. The father is required to provide
maintenance for his minor children even when they are in the custody of the mother. It is submitted that the present
clause should be interpreted to mean that mother can only claim for the arrears of two years’ maintenance for her
children from the father. This clause cannot mean to abrogate father’s obligation to maintain his children under
Muslim law. The children’s right to claim maintenance under section 125 of the Code of Criminal Procedure, 1973 is
also not abrogated3
PART III CUSTODY, MAINTENANCE AND EDUCATION OF CHILDREN

Among the aftermath-divorce problems, the most sensitive and most important one relates to custody, maintenance
and education of children. It is very vital matter affecting the children and parents emotionally, socially and
financially.

Under all the four matrimonial statutes the provision for these matters are made and courts are empowered to make
reasonable provision for custody, maintenance and education of children.

Hindu Marriage Act, 1955

Section 26 of the Act runs:

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in
the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose,
make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were
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still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously
made:
1[Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding

for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the
respondent.]

The Supreme Court in a case on custody and welfare of the children observed and held that the record of the
divorce proceedings which had come on the record of this case disclosed that prior to their separation Sushil and
Sarita with their two children and Sushil’s mother were staying together in U.S.A. The record further disclosed that
there were serious differences between the two. Sushil was an alcoholic and had used violence against Sarita.
Sarita’s conduct was also not very satisfactory. Before she came to India with the children, she was in lawful
custody of the children. The question was whether the custody became illegal as she had committed a breach of
the order of the American Court directing her not to remove the children from the jurisdiction of that Court without its
permission. After she came to India, a decree of divorce and the order for the custody of the children was passed.
Therefore, it was also required to be considered whether her custody of the children became illegal thereafter?2The
court said that it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the
children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances
of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of
welfare of the minor children. Though it is true that both the children have American citizenship and there is a
possibility that in U.S.A they may be able to get better education, it is doubtful if the respondent will be in a position
to take proper care of the children when they are so young. Out of them, one is a female child. She is aged about 5
years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked
after. It is also not desirable that two children are separated from each other. If a female child has to stay with the
mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper
care of the children was being taken and they were studying in good schools. The appellant was not wanting in
taking proper care of the children. Both the children had a desire to stay with the mother. At the same time the son,
who was elder than the daughter, had good feelings for his father also. Considering all the aspects relating to the
welfare of the children, the court was the opinion that in spite of the order passed by the Court in U.S.A., it was not
proper for the High Court to have allowed the habeas corpus writ petition and direct the appellant to hand over
custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest
of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the
respondent to initiate appropriate proceedings in which such an inquiry could be held.

Special Marriage Act, 1954

Section 38 of the Act containing the provision runs:

In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and
make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and
education of minor children, consistently with their wishes wherever possible, and may, after the decree upon application by
petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the
custody, maintenance and education of such children as might have been made by such decree or interim orders in case
the proceeding for obtaining such decree were still pending.
1[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding,

under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice
on the respondent.]

Indian Divorce Act, 1869

The Act contains the provision in sections 41 to 44.

Section 41 runs:

In any suit of obtaining a judicial separation the court may, from time to time, before making its decree, make such interim
orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and
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education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it thinks fit, direct
proceedings to be taken for placing such children under the protection of the said court.

Section 42 runs:

The court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time,
all such orders and provision, with respect to custody, maintenance and education of the minor children, the marriage of
whose parents is the subject of the decree, or for placing such children under the protection of the said court as might have
been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43 runs:

1[In any suit for obtaining a dissolution of marriage or a decree of marriage or a decree of nullity of marriage instituted in a
District Court, the Court may from time to time before making its decree, make such interim orders as it may deem proper]
with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject
of the suit;
and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the court.

Section 44 runs:

2[Where a decree of dissolution or nullity of marriage has been passed, the District Court may, upon application] by petition
for the purpose, make from time to time all such orders and provision with respect to the custody, maintenance and
education of the minor children, the marriage of whose parents was the subject of the decree, or for placing such children
under the protection of the said court, as might have been made by such decree absolute or decree (as the case may be),
or by such interim orders as aforesaid.

Parsi Marriage and Divorce Act, 1936

Section 49 of the Act containing the provision lays down:

In any suit under this Act, the court may from time to time pass such interim orders and make such provisions in the final
decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the
age of eighteen years, the marriage of whose parents is the subject of such suit, and may, after the final decree upon
application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with
respect to the custody, maintenance and education of such children as might have been made by such final decree or by
interim orders in case the suit for obtaining such decree were still pending:
3[Provided that the application with respect to the maintenance and education of such children the suit, shall, as far as

possible, be disposed of within sixty days from the date of service of notice on the respondent.]

As it has been seen, the Indian Divorce Act, 1869 deals with the subject in Part XI, under the title, “Custody of
Children, in sections 41 to 44. Proliferation of the subject in four sections does not serve any useful purpose except
that it reflects the then legislative tendency. Interim matters relating to custody etc., are dealt with in section 41
(judicial separation proceedings) and section 43 (nullity and divorce proceedings), while matters relating to
permanent custody, etc., are dealt with in section 42 (judicial separation) and section 44 (nullity and divorce
proceedings). Otherwise the provision is substantially the same as that of the Parsi Marriage and Divorce Act, 1936.

The Indian Divorce Act, 1869 does not deal with matters relating to custody in the restitution of conjugal rights
litigation. Under the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 custody, etc., orders
can be made in respect of children the marriage of whose parents are subject to matrimonial proceedings, while
under the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 the court has power to pass orders in
respect of the children of the parties to the proceedings, since these statutes do not qualify the word “children” with
the words, “the marriage of whose parents is subject” to the suit.

Preliminary Matters
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Minor children.—The Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 uses the words “minor children”
and does not define as to who are minor children. Ordinarily, the definition contained in the Indian Majority Act,
1875 will apply. Under the Indian Majority Act, 1875 a person ordinarily remains a minor until he or she attains the
age of 18 years”1The Indian Divorce Act, 1869 defines “minor children” to mean “in the case of sons of native
fathers, boys who have not completed the age of sixteen years, and in case of daughter of native fathers, girls who
have not completed the age of thirteen years; in other cases it means unmarried children who have not completed
the age of eighteen years”2Under the Parsi Marriage and Divorce Act, 1936 a person, whether male or female, is a
minor if he or she has not completed the age of eighteen years3The Foreign Marriage Act, 1969 lays down that
where one of the spouses is an Indian citizen, all matrimonial disputes will be decided under the provisions of
thespecial Marriage Act, 1954. This would obviously include the determination of matters relating to children.

It is submitted that there should be a uniform age of minority which may be the same as under the Indian Majority
Act, 1875 as regards custody.

Ordinarily, a child who has completed the age of 18 years is not entitled to maintenance4

The children of void and voidable marriage are included in the expression “children”.

Since the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 do not qualify the term “children” by saying
children of marriage of children of the parties (it may be noticed that sections 41 to 44 lay down “children... the
marriage of whose parents is subject” to suit or decree. The same language is used in section 49 of the Parsi
Marriage and Divorce Act, 1936) a view may be taken that under this expression are included legitimate as well as
illegitimate children, children of both parties as well as either party. But, it seems we tend to stick to the
conventional view, namely, the children mean legitimate children of the marriage. This is clearly indicated by the
High Court rules. Thus, rules of the High Courts of Andhra Pradesh, Calcutta, Karnataka, Madras and Punjab and
Haryana use the expression “children of marriage”, while rules of the High Courts of Allahabad, Assam, Bombay,
Kerala, Madhya Pradesh, Orissa, Patna and Rajasthan use the expression “living issues of marriage”. This means
that children should not merely be of the parties but of the marriage between the parties. Thus, only legitimate
children born of the marriage of the parties will be included. However, the children of void and voidable marriages
are included under all the four matrimonial statutes. This is so, it is submitted, irrespective of the fact that the Indian
Divorce Act, 1869 does not contain anything like section 16 of thehindu Marriage Act, 1955.

Legitimacy is a matter of status. Illegitimate children are children as are not born either in lawful wedlock, or within a
competent time after its determination. It is on account of marriage, valid or void, that children are classified as
legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they
have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which
a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate.
Realising this situation, Parliament enacted section 16 of the Hindu Marriage Act. The object of section 16 was to
protect legitimacy of children born of void or voidable marriage.1

By virtue of the amended section 16(1), declaration of voidity of a marriage on a petition of either party or, in other
words, declaration of the marriage as nullity under a decree which were pre-conditions under section 12 of the Act,
is done away with. Consequentially, as if the marriage had been valid, the child shall be legitimate whether such
child was born before or after the commencement of Amendment Act 68 of 1976. By operation of section 8 of the
Hindu Succession Act, 1956, read with Schedule I, the appellant was entitled to the property of her father.2

As regards maintenance and education of children, the obligation should not come to an end on the attainment of
the age of majority, and the courts should have power to pass order whenever it feels to be necessary and
reasonable in these matters. As it would be seen, in some cases the courts have exercised this power.

Placing the children under the protection of the court.—The Indian Divorce Act, 1869 lays down that the court
may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the court3The
inspiration is obviously English law. Under English law the courts always have had jurisdiction to put the child in the
wardship of the court in all appropriate cases, where the interest of children so demands, particularly when parents
are on warpath.

No other Indian matrimonial statute has an analogous provision. One need not advance an argument that such a
provision is desirable in all the matrimonial statutes.

Matrimonial Court or Family Court.—The Parsi Marriage and Divorce Act, 1936 stipulates for the establishment
of Special Matrimonial Courts to hear the matrimonial disputes between Parsi spouses. Such courts are assisted by
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the Parsi delegates1The Family Courts Act, 1984 also stipulates establishment of family courts in some towns.
Whenever such a court will be set up, all matrimonial disputes including matters relating to children will be settled
by such a court. (See Chapter XIV of this work). In fact as many family courts should be established as are
necessary.

Settlement of property.—Under the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 the
court has been empowered to settle any part of wife’s property not exceeding one-half thereof for the benefit of the
children in any case in which the court pronounced a decree of divorce or judicial separation for adultery of the wife,
if it shall be made to appear to the court that the wife is entitled to any property either in possession or reversion.
The Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 do not contain any such provision.

This aspect of the matter would be discussed in Part IV of this Chapter.

Jurisdiction of the Court

Interim orders.—The courts will have jurisdiction to pass orders in respect of children if it has jurisdiction on the
main petition. However, it is submitted, the court has jurisdiction to pass interim orders in respect of children during
the period that the question of jurisdiction is not decided. In other words, from the date of the filing of the petition in
a matrimonial cause till its termination the court has jurisdiction to pass interim orders, whether the question of
jurisdiction is decided as a preliminary issue or whether it is decided along with other issues in the case.

The question relating to custody, etc., of children may come before the matrimonial court in any one of the following
situations:
A. Interim orders for custody, etc., of children, i.e., an order may be passed at any time from the date of filing
of the petition and before its final disposal.
B. Permanent orders of custody etc., of children. Such orders may be passed:
(a) at the time of the passing of the decree in a matrimonial cause.
(b) subsequent to the passing of the decree in a matrimonial cause. The question may come up in two ways:
(i) If earlier, or at the time of passing of the decree, no prayer was made for custody, etc., of children,
a fresh application by petition may be made subsequently at any time.
(ii) When orders have already been made, an application may be made for revoking, suspending or
varying such orders.

Discretion of Court.—In matters relating to custody, education and maintenance of children, the court is invested
with a very wide discretion and broad powers. In the welfare of children the court can pass any orders, since the
words used are: the court may pass any order “as it may deem just and proper”. Justness or properness of the
order is to be looked at from the interest of the children, as it is their interest which should be uppermost in the mind
of the court. It is certainly not the interest of any party, innocent or otherwise. It is also not a mere question of
balance of convenience.

In sum, the court has power to pass any kind of orders in respect of children by placing them into the custody of
either parents or of a third person or of an institution. It may give custody to one parent and care and control to the
other. It may pass any interim or permanent orders and may vary them, change them or rescind them at any time.
Similarly, orders can be passed in regard to maintenance and education of children.

The court has the power to refuse to exercise the jurisdiction but it would do so only in very exceptional cases
otherwise it would exercise jurisdiction, as it is not merely the duty of the court to determine the main issues in the
petition, but also all ancillary matters.

Petitions and applications of custody, etc.—A party may pray for custody, etc., of the children in the main
pleadings, but the High Court rules of most of the High Courts require separate application or petition for such
orders. Separate applications should be made for interim custody, etc., of children and for permanent orders for
custody, etc. The rules of the Allahabad High Court permit a prayer to be made in the main pleadings. But under the
High Court Rules of Assam, Bombay and Calcutta, a separate application is to be made. Such an application is
required to be supported by an affidavit.
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When an application is made subsequently to the grant of the decree, section 26 of the Hindu Marriage Act, 1955
specifically lays down that application for custody, etc., is to be made by a petition for the purpose. The provision in
section 38 of thespecial Marriage Act, 1954 is similar. This means that a separate petition has to be made for the
purpose1

The court has power to pass such orders suo motu, but usually it does not do so unless an application is made. It
seems that an application can also be made by a child through the next friend.

Even if parties are agitating or has obtained orders of custody, etc., from the guardian court under the Guardians
and Wards Act, the matrimonial court’s jurisdiction is not ousted, though the court would take into account such
orders.

Children are not parties to proceedings.—In English matrimonial law till 1958, children were not treated as
independent parties. But today they are treated as independent parties and the court would refuse to grant the relief
in the main petition unless satisfactory arrangement in all matters relating to children are made. In Indian law they
are not regarded so and we retain the old English law position. This writer has submitted:

About a quarter century before, even in English law this matter, like any other interlocutory proceedings, was decided
summarily and was regarded essentially a matter between litigating parents. Now it is fully realized that the parents are not
the only parties, the children are also parties to the proceedings, and the most important parties1

It is submitted that Indian laws should be so modified as to make the interest of children uppermost, rather the sole,
consideration. As regards making the children a party to the proceedings, this can be done even by introducing a
rule in High Court Rules. But a statutory provision will be needed for laying down that no relief in a matrimonial
cause will be granted unless adequate arrangements for the children have been made.

Orders for custody and care and control.—The Indian Courts continue to make orders for full custody. This
writer is not aware of any decision where the court has committed custody to one parent and “care and control” to
another. The English matrimonial court started making such a distinction at an early period. In English law, the word
“custody” has been used in a wider sense so as to include practically all the right of guardianship as well as in a
narrow sense as to include only “care and control”. In Hewer v. Bryant,2Sachs, L.J., emphasising the dual aspect of
custody observed:

In its wider meaning the word ‘custody’ is used if it were almost the equivalent of guardianship in the fullest sense... These
include power to control education, the choice of religion, and the administration of infant’s property. They include
entitlement to veto issue of passport and to withhold consent to marriage. They include both the personal power physically
to control the infant until the years of discretion and the right to apply to court to exercise the powers of the Crowns as
parens patrie.

The learned judge then said that custody in its narrower meaning means “personal power to physical control”. This
is now called “care and control”. In the modern English law the divorce court has power to make “split orders” giving
custody to one parent and care and control to the other3The practice is to give care and control of children of tender
years to the mother and custody to the father so that the long term interest in children’s upbringing is preserved,
and both parents have a say in the upbringing of the children. Sometimes the court gives custody to both parents
and care and control to a third person or an institution, particularly in those cases where parents are likely to co-
operate4Sometimes the court may give care and control to a third person, if the interest of the child is best served in
doing so. But in modern times, in the words of Lord Denning:

Custody is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the
older he is. It starts with a right of control and ends with little more than advice1

Under Indian law, the court has not yet considered the matter in this sense. It appears that the Indian courts use the
term “custody” in the narrow sense and when they commit custody to one parent they mean to commit only the care
and control. Under the Indian law, guardianship still vests in the father. So long as he is alive he is the guardian of
his minor children, and mother is not, and she has virtually no powers in respect of the children. Thus, when mother
is entrusted with custody, she, in fact, is entrusted only with care and control.

Order for access.—When parents separate from each other, obviously the custody can be committed only to one
parent. The question is: should the child be cut away from the association of the other parent or should it continue
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to have some association with the other parent? The English court observed, “To say of a woman that she is a bad
wife and it may be an excellent reason for not giving her care and control but... is not sufficient ground for depriving
her of any kind of access”2Ordinarily, when custody is given to one parent, access is given to the other. The normal
principle is that the children should grow up in the full knowledge of both parents.

In B. v. B.3Martin, J., observed, “I wish to make it quite clear and it can be so expressed in the order, that, the order
is without prejudice to any question as to the father having access to the child.” In this case mother was given
custody. Obviously, on a decree being made in a matrimonial cause, only one parent can be granted custody. This
does not mean that the other parent will not be allowed access to the child. The court, while making an order of
custody, may make it clear that the parent who does not have the custody of the child will have access to it. When
access is granted to a parent, the other parent cannot prevent him from access to the child. But the right must be
exercised in a reasonable manner and in conformity with the directions of the court contained in the order.

Most of the Indian statutes do not specifically provide for access; but access is part of custody, and if the court has
power to pass orders for custody, it has also the power to pass orders for access4The other parent is allowed
access so that the child may not lose the society and affection of the other parent5In the welfare of the child, the
court has power to grant access even to a third person6

In deciding the question of access, the interest of the child is paramount as in case of custody7No order of access
will be passed if it is not in the interest of the child1On the application of a parent, the court may make such orders
as to the access to the child as it may deem fit having regard to the child’s welfare, the conduct of the parties and
wishes of the child if mature enough to express its wishes.

In Mohini v. Virendra Kumar,2the Supreme Court has elucidated it further. In the order of custody or access the
court should give full and clear directions. In this case, the Supreme Court laid down that during long vacations, the
father would be entitled to take the child with him from the mother’s home in case the child was with her or from the
boarding school (where the child was educated and living) with him and keep it with him for a period not exceeding
one month in a year. The Supreme Court, visualizing practical difficulty of enforcing such an order, made the
following suggestion, “If there is any obstruction offered by the appellant in the respondent taking the minor son with
him, it will be open to the respondent to move the District Court having jurisdiction, over the place where the minor
son resides, for deputing an officer of the court to take the minor into custody and make over such custody to the
respondent. Likewise the appellant will be entitled to take the minor child back from the custody of the father or
mother as the case may be, at the end of the period agreed upon. In case the respondent obstructs or otherwise
creates difficulties in the way, it shall be likewise open to the appellant to move the district court concerned to
depute an officer to see that minor’s custody is secured to appellant”.

Custody of Minor
Marriage of a minor bride who had not completed the age of 18 years is neither void nor voidable. Hence, husband
of such minor girl would be entitled to her custody by virtue of being her natural guardian and custody cannot be
claimed by father of minor girl.3

The English courts have recently taken the view that access is not the parent’s right but of the child, and access to
the non-custodian parent is justified by the long term advantages to the child of being associated to both
parents4Thus, in B. v. B.,5a blemishless father was denied access to his 16 year old son as the boy had formed a
fixed determination not to see him. In Jwala Prosad Sana v. Bachu Lal,6the child was brought up from its very birth
by its grandparents. When the child was eight years old, the father applied for custody. The court felt that the
removal of the child from the custody of grandparents to the father, i.e., removal to unfamiliar surroundings and
environments, might affect its health and therefore did not deem it proper to give the custody to father. But the
father was granted access to the child so that the child might get acquainted and familiar with him. The Indian
courts, too, have granted access to non-custodial parents on the principle that the child should grow-up in the
association of both parents; the non-custodian parent should not lose the society and affection of the child. But if
such an arrangement is not for the welfare of the child, the parent will not be granted access1

Consideration for Determining Question of Custody

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In an early case under the Indian Divorce Act, 1869,W.G. Mayhew v. Sarah Anna Mayhew2the Bombay High Court
laid down the following general principles for determining the question of custody which the court should generally
apply:—
(a) The first duty of the court is to consider what is for the benefit of children3
(b) The custody should ordinarily be given to an innocent party, provided it is in consonance with the welfare of
children4
(c) Ordinarily, the court will refuse to give custody to the guilty parent5
(d) In case both parents are not fit or proper persons, the custody may be given to a third person provided it is
in the welfare of children.
(e) If the parent who has been entrusted with the custody of the child, is subsequently found to be leading a
life which renders him unfit for the custody of the child, the court may rescind the order and commit the
custody to the other parent if proved fit or to a third person.

The propositions (b) and (c) are no longer correct. In the modern law, there is no bar in giving custody to a parent
who committed the matrimonial offence leading to divorce. If he or she is otherwise a proper person custody can be
committed to him or her. Similarly, there is no firm rule that innocent party should always be given custody of the
child.

Under the modern law, the court would take into consideration the following:—
(i) welfare of the child which is of the paramount consideration,
(ii) wishes of the parents,
(iii) wishes of the child,
(iv) age and sex of the child.

The court is also free to consider any other matter which helps it to determine the question in the interest of the
child.

Welfare of Children: Paramount consideration.—No proposition of matrimonial law is so well-settled as this one
which lays down that in all matters pertaining to children their welfare is the paramount consideration. This is so all
over the world, though some systems, like that of the erstwhile Soviet Union, hold that it is the sole consideration.

The English law, the Guardianship of Minors Act, 1971, lays down (this in fact was first laid down under the
Guardianship of Infants Act, 1925, though the English courts have propounded it much earlier) that in dealing with
questions relating to custody, upbringing of a child and administration of property of the child, the court must regard
the welfare of the child as the first and paramount consideration, and the court must not consider whether from any
other point of view the father’s claim or any common law right of the father is superior to that of the mother or the
mother’s claim is superior to that of the father1

English law establishes complete equality between the rights and powers of both parents in respect of children2This
is not so under any Indian personal law, though some statutes do emphasise that the welfare of the children is of
prime consideration. Thus, section 25 of the Guardian and Wards Act, 1890 lays down that in committing custody,
the welfare of the children will be the main consideration before the court. Section 13 of the Hindu Minority and
Guardianship Act, 1956 lays down that in matters relating to guardianship and custody of children, “the welfare of
the minor shall be the paramount consideration”.

In 1893 the English court took the view that the welfare of the minor is the paramount consideration. Lindley, L.J.,
observed:

The dominant matter for consideration of the court is the welfare of the child. But the welfare of the child is not to be
measured by money only nor by physical comforts only. The moral and religious welfare of the child must be considered as
its physical well being. Nor can the ties of affection be disregarded3

Since then the English courts have adhered to this principle and modern English law is virtually saying that the
welfare of the children is the sole consideration. The leading case on the subject is J. v. C.,4where in the welfare of
the children the court refused to transfer the child from the custody of the fosterparents to natural parents. Lord
Macdermott observed that there might be cases where the public interest might override the welfare of a particular
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child, but the application of the welfare rule meant more than that. It was to be treated as the top item in a list of
items relevant to the matter of custody, etc., of children. The words, first and paramount consideration connote a
process whereby, when all the relevant facts, relationships, claims, and wishes of parents, risks, choices and other
circumstances are taken into account and weighed, the course to be followed will be that which is most in the
interest of the child’s welfare as that term has now to be understood. That is the first consideration because it is of
first importance and the paramount consideration because it rules upon or determines the courses to be followed5

Ofcourse, the courts do take into account other factors, such as the wishes of the natural parent, the wishes of the
child, the conduct of parents, age and sex of the child and other factors, including the psychological and medical.

If one would look at the Indian matrimonial statutes, we do not use the expression “welfare of children is first and
paramount consideration”. Section 26 of the Hindu Marriage Act, 1955 and section 38 of thespecial Marriage Act,
1954 use the words “it may deem just and proper”. The Indian Divorce Act, 1869 uses the expression “it deems
proper”1The Parsi Marriage and Divorce Act, 1936 uses the expression “it may deem just and proper”2It is section
13 of the Hindu Minority and Guardianship Act, 1956, which uses the expression “the welfare of minor shall be the
paramount consideration”. Section 17 of the Guardians and Wards Act, 1890 uses the expression “for the welfare of
the minor”. Similarly, section 25 of the Act which deals with custody also uses the words “welfare of the ward”.

The Supreme Court, in a case3held that it is clear from the language of section 25 of that it is attracted only if a
ward leaves or is removed from the custody of a guardian of his person and the court is empowered to make an
order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return
to the custody of his guardian. The use of the words “ward” and “guardian” leave little doubt that it is the guardian
who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian
entitled to the custody of such ward, that can seek the assistance of the court for the return of his ward to his
custody. The guardian contemplated by this section includes every kind of guardian known to law. The court further
held that section 25 of the Guardians and Wards Act contemplates not only actual physical custody but also
constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this
provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the
right of his guardian to properly look after the ward’s health, maintenance and education, this section demands
reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive
the guardian the necessary assistance from the court in effectively discharging his duties and obligations towards
his ward so as to promote the latter’s welfare.

Under the Hindu Marriage Act, 1955 the courts are free to take recourse to the provisions of thehindu Minority and
Guardianship Act, 1956. In this connection it may be noticed that section 6 of the Act lays down that “the custody of
a minor who has not completed the age of five years shall ordinarily be with the mother”. In proceedings under
section 26 of the Hindu Marriage Act, 1955, the Delhi High Court in Chander Prabha v. Prem Nath Kapur,4where
the wife claimed the custody of her child below the age of five years, said that the matter will be governed by
section 6 of the Hindu Minority and Guardianship Act, 1956. The court rightly observed:

...the child under five years of age, in our opinion needs most the tender affection, the caressing hand and the company of
his natural mother and neither the father nor his female relations, however close, well-meaning and affectionate towards the
minor can appropriately serve as a proper substitute for the minor’s natural mother. It may also be borne in mind that
physical needs and comforts alone are not enough for the proper healthy developed of a human child. Parental affection is
indispensable for this purpose and in the case of a conflict between father and mother, when the child is under five years of
age, the mother has been rightly endowed with preferential claim in regard to the child’s custody. This is consistent with the
rule of nature and, in normal circumstances, deserves to be noticed and acted upon.

Custody of Minor Child

Better financial resources, love for child or statutory presumption like father is better suited as under section 6(a) of
Hindu Minority and Guardianship Act, are no doubt relevant considerations, while considering the custody of minor
child, but welfare of the minor child is the most relevant consideration.1

In conclusion, the court said that unless the welfare of the child requires otherwise, this rule should be followed by
the matrimonial court.

Similarly, in Radha Bai v. Surindra K. Mudaliar,2the Mysore High Court said that the rule laid down in section 6 of
the Hindu Minority and Guardianship Act, 1956 should be adhered to as it has to be presumed that the welfare of
the minor who has not completed the age of five years will be best served if such a child is in the custody of the
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mother. It is only in exceptional circumstances that rule is to be disturbed. In this case the mother, affectionately
disposed of towards her 3½ years old daughter, whom the father and his relatives would not even show to the
mother and her relatives, brought the child from the kindergarten where she was put by the father and kept with
herself. She being employed was able to properly look after the child and the child too desired to live with the
mother. The court held that the mother should be given custody of the child. The mere fact that the mother had not
visited her husband’s house to see the child for 1½ years did not indicate that she was not attached to the child. In
Gheesi v. Shri Rama,3the same view was taken. It is submitted that so far as the ratio of the three cases is
concerned, it lays down good law. But it does not mean that the discretion of the matrimonial court is in any manner
fettered. If it deems proper, it may give the custody of a child above 5, male or female, to the mother. One should
not try to infer the reverse proposition: The custody of the child above the age of five should ordinarily be with the
father. This is not correct. The entire matter has to be decided on the basis of welfare of children, and Indian courts
have done so.

Although the statutory provisions of the Indian statutes are not so categorical, the courts have kept pace with
modern developments and have brought the law fairly up-to-date.

In cases coming under the Guardians and Wards Act, 1890 High Courts have taken divergent view on account of
the statutory provision of section 19 which lays down that a father cannot be removed from guardianship unless he
is found unfit and of section 17 which lays that the court should take into consideration the welfare of the child.
Ultimately, taking recourse of English precedents, both the Guardian court and the Divorce court laid down that the
welfare of the child is the paramount consideration1The modern judicial attitude is very aptly expressed in the
following observation of the Andhra Pradesh High Court:

It is a proposition so well known and established that it cannot be questioned at all that welfare of the minor is the prime
consideration in such matters and that even the paramount right of the father as natural more guardian should be
subordinated of the welfare of the minor2

The early judicial attitude is well expressed in the following observation of the Allahabad High Court:

... a father is not only the natural guardian but has an inalienable right over his child, unless there are overwhelming
circumstances to the contrary3

But, and despite the fact that under all Indian personal laws the father is the natural guardian of minor children and
despite the fact that section 19 of the Guardians and Wards Act, 1890 lays down that father’s guardianship cannot
be disturbed unless he is found unfit, the overwhelming judicial attitude is to hold that if the welfare of the child
requires that the custody should not be given to the father, he cannot get it merely because he happens to be the
father4The determining factor was, the court observed, not the right of the two parents or which of the two was at
fault but the welfare of the child5Indian courts have taken this view despite the fact that none of the Indian
matrimonial statutes specially lay down that the welfare of the children is the paramount consideration but merely
lay down that the court may pass such orders of custody, which it deems “proper” or which it considers “just and
proper”.

That welfare of the children is the paramount consideration is the view held by the courts not only under the Hindu
Marriage Act, 1955 but also under the other three statutes6In Haidri v. Jawad Ali,7a case under Guardians and
Wards Act, 1890 (dispute was between a Muslim couple), the Allahabad High Court, after observing the welfare of
the children would be paramount consideration, held that custody of children of tender years had to be with the
mother, who, in all circumstances, is presumed to be the fittest one. The Madras High Court took the same view
in(In re) Margue.1In Mohini v. Virender Kumar,2the Supreme Court observed:

The deepest consideration for the welfare of the child is paramount in our minds and subject-matter of anxious concern
when we dispose of matrimonial appeal.

In this case the court found that mother was a well to do person and was affectionately disposed of towards the
child, and therefore committed the custody of the child to her. The court observed that minor’s welfare, both
financially and emotionally, was safe in the hands of the mother. The mother also undertook to look after the child
properly and put in a good educational institution. In this case the minor male child was aged 11 years. Custody can
be given to the mother who has remarried in the welfare if the welfare of the child is so served.3In Parminder Lal
Sarin v. Suman Lata,4the father had removed a child of four years from the custody of the mother during the
pendency of proceedings for divorce. The mother filed an application under section 26 of the Hindu Marriage Act,
1955 for the custody of the child. The court ordered the father to produce the child in the court but he evaded and
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finally absented himself from the proceedings. The court passed an order in favour of the mother. It was argued that
since the divorce proceedings were dismissed ex parte on account of failure of the father and his counsel to appear
before the Court, the Court had no jurisdiction to pass any order on a petition under section 26 negativing the
contention of the father, the Court held that it continued to have the jurisdiction. The Court further observed that an
order passed under section 26 was a decree and such an order stood even if the main petition was dismissed. This
is, it is submitted, a healthy trend, since it implies that once an order under section 26 is passed even if the main
petition is dismissed, the court continues to have jurisdiction to pass any orders relating to children. That welfare of
children is of paramount consideration also well brought out by the decision of the Delhi High Court in Mukesh
Kumar Gupta v. Kamini Gupta,5where the court allowed the father to have the custody of four minor girls. In this
case, the mother was living in a women’s hostel, and the children, all school-going, were being looked after well by
their paternal grandparents and the father. The grandparents were in a position to afford the education of children in
good schools. The court held that it would be in the interest of the children that they remained in the father’s
custody.

In Jacob Mathew v. Maya Philip @ Annama,1the custody was left with the mother even though she was living as a
concubine as the husband never made any serious or earnest effort to befriend the child ever since the mother left
the child’s father. At this stage transplanting minor was held not conducive to its welfare as the father was a total
stranger to the child.

The Supreme Court decision in Surinder Kaur Sandhu v. Harbux Singh Sandhu,2reiterates the same proposition,
i.e., welfare of the children is of the paramount consideration, though the case has conflict of laws aspect also. The
parents of the child, a boy, were married in India but went to England, which country they made their home. The
child was born to them in England. The father tried to get the mother of the child murdered for which he was
convicted by an English court. The mother obtained a probation order for him, but he abused her magnanimity and
ran away to India with the boy. The mother obtained a custody order from the Family Division of the High Court
under which the father was ordered to hand over the custody of the child to mother or her agent forthwith. Armed
with this order, the mother filed a writ petition in the Punjab and Haryana High Court, which came to the conclusion
that it would be for the welfare of the child if he were allowed to live in India which was his own country; in this way
the child would grow in an atmosphere of self-confidence and self-respect. The Court also observed that the
paternal grandparents of the child were in affluent circumstances and the traumatic experience of the father in a
criminal charge must have chastened him. The Supreme Court reversed these findings and held that under the
circumstances it would be in the interest of the child to be committed to the custody of the mother. The Court felt
that the traumatic experience of the father on conviction for a criminal charge was not a factor in his favour
especially when his conduct following immediately upon his release on probation showed that experience had not
chastened him. Further, the affluence of the grandfather, the Court observed, could not be a factor of such
importance as to tilt the balance in favour of the father on the question of what was truly for the welfare of the minor.

On the question of jurisdiction of the English court over the matter, Chandrachud, C.J., observed (and it is
submitted that these are very important observations):

The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case... That is to say for example, that in matters relating to matrimony and
custody, the law of that place must govern which has the closest concern with the well being of the spouses and the welfare
of the offspring of the marriage3

In this case, it was clearly established that the matrimonial home was in England, and the fact that the child was not
in England (in fact the child was deceitfully taken away from the jurisdiction) would not deprive the English court of
its jurisdiction. On the other hand, the mere presence of the child in India would not give jurisdiction to the Indian
court.

In Sardar Bhupendra Singh v. Jasbir Kour,1the question was with regard to custody of sons. Parents were living
separate pending divorce application. Wife was living in her parental home with the daughter. Sons were not in
immediate charge of father. Sons were studying at different places. Father claimed that since he is natural guardian
his sons should take education as per his desires. This argument was held to be not tenable. There was no reason
for sons not to live with mother and sister. In welfare of child custody was awarded to mother further the fact that
father is in better financial circumstances age of no importance as it is a duty of father to bare expenses of a
children.

The question of custody of a minor daughter, aged nine, arose in Devi Prasad Mukherjee v. Sandhya Devi,2before
the Gauhati High Court. The trial court committed custody of the girl to the mother as it found that she was the most
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affectionate person, though it found that the father was also quite affectionate. The court felt that it would be proper
for the best interest of the minor female child to remain with her mother as she had not attained such an age as to
be able to do many things independently, and her mother would be her best help in that regard. The child also
expressed a desire to be allowed to remain in the custody of the mother. On revision, the High Court upholding the
order observed that since the mother did not suffer from any infirmity as to render her unfit for custody, the order of
the trial court was correct.

The question came for consideration again before the Supreme Court in Elizabeth Dinshaw v. Arvand M.
Dinshaw,3a case under Private International Law. A minor child was born of Indian father and American mother. On
the divorce being pronounced by an American court, the custody of minor child was entrusted to the mother. The
father was granted visitation rights. On one such visit to the child, he abducted it to India. On a writ petition filed by
the mother for the custody of the child, the Supreme Court granting custody to the mother observed that the mother
was full of genuine love and affection for the child and she could be safely trusted to look after him, educate him
and attend in every possible way to his proper upbringing. The child has not taken root in India and he is still
accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United
States of America. The child’s presence in India is the result of an illegal act of abduction and the father who is
guilty of the said act cannot claim any advantage. It is the duty of courts in all countries to see that a parent doing
wrong by removing children out of their country did not gain any advantage by his or her wrongdoing. Balakrishna
Eradi, J., who rendered the judgment of the court observed:

Whenever a question arises before the court pertaining to the custody of a minor child, the matter is to be decided not on
considerations of legal rights of parties but on the sole and predominant criterion of what would best serve the interest and
welfare of the minor.

But, as has been submitted earlier, the welfare of the child being the paramount consideration, it is not a rule of law
that a child of tender years should always be in the custody of the mother.

In a given case custody may be given to a third person. In Brejendra Narayan Ganguly v. Chinta Haran
Sarkar,1parents have given the child from its birth into the custody of another person, who had been looking after
the child well for over five years. Thereafter the parents applied to the courts that child be restored to them. The
Madras High Court held that the parents were entitled to the custody of the child notwithstanding the fact that the
child considered its foster parents as his real parents. The court expressed the view that the welfare of children
always lay with parents unless they are found unfit.

Wishes of parents.—The question of wishes of the parents may arise in two situations: (i) when the dispute
relating to custody is between a parent and a third party, and (ii) when the dispute is between the parents. In the
former case the wishes of the parents can be disregarded only if doing so will be in the paramount welfare of the
child. As late as 1970, Upjohn, J., observed, “The natural parents have a strong claim to have their wishes
considered: first and principally, no doubt, because normally it is part of the paramount consideration of the welfare
of the infant that he should be with them, but also because as the natural parents they have themselves a strong
claim to have their wishes considered as normally they are the proper persons to have the upbringing of the child
they have brought into the world”2On the question of custody as between parents, in early cases, the English courts
took the view that the wishes of the “unimpeachable parents” should be respected. But in modern English cases the
use of this expression has been criticized and it has been observed that this expression has no relevance in a
dispute between parents regarding the custody of children3It should be clearly understood that in either case wishes
of the parent are to be considered but only as one of the factors bearing on the child’s welfare and if child’s welfare
required they may be disregarded4

This is also the position the Indian courts take. As early as 1914 in Fulkumari v. Budh Singh5the Court observed
that though the wishes of the parent were not conclusive, but still considerable weight was to be attached to them.
But these would be disregarded if giving effect to them would be injurious to the child6

Wishes of the child.—It is a statutory provision in all the Indian matrimonial statutes that the court will take into
account the wishes of the child. The English courts, too, have taken this view from the very beginning. But recently
the English courts have expressed the view that there may be occasions when the child’s view counts for very little,
either because they are merely reflections of the wishes of one of the parents which have been assiduously instilled
into the ward or because, although genuinely his own, they are plainly contrary to his long-term interest1Now that
the Divorce courts decide the matters of custody on the basis of the Report of the Welfare Officer, the Welfare
Officer usually takes the wishes of the child into account before submitting its report.
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The Indian courts have considered the wishes of the child, but there is a controversy among our High Courts as to
what is the age discretion or when the child is capable of expressing its intelligent preference2It appears that the
Indian courts have now settled down to the view that wishes of the children are an important consideration and at
what age the child is capable of expressing his intelligent preference depends upon his mental development or
maturity3The courts have also expressed the view that wishes of the child is a relevant consideration, but welfare of
the child is paramount consideration and if the welfare of the child requires the wishes of the child may be
disregarded4

Age and sex of the child.—The English and Indian decisions are replete with such statements that: (i) the children
of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the
father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there
is no hard and fast rule. As to the children of tender years it is now a firmly established practice that mother should
have their custody since father cannot provide that maternal care and affection which are essential for their proper
growth. It is also now accepted that for proper psychological development of children of tender years, mother’s care
is indispensable5

The Hindu Minority and Guardianship Act, 1956, contains a statutory provision which lays down that custody of a
child up to the age of five years should ordinarily be with the mother6Under the personal laws, though there is no
such statutory provision, the Indian courts have consistently taken this view. The following observation of
Beaumount, C.J., represent the judicial view:—

...If mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the
custody of the child7

In re: Kamal Rudra,1Das, J., expressed the same view vividly thus:

I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father and
mother, other things being equal, child of such tender age should remain with the mother2

In respect of older children courts have taken the view that the male children above the age of sixteen years, and
female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which
they object3However, even the wishes of the nature children will be given consideration only if they are consistent
with their welfare4In Venkataramma v. Tulsi,5the court disregarded the wishes of the children as it found these to be
induced by wholesale persuasion and were even tutored.

Maintenance and Education

The other two matters concerning children that may require the attention of the court are maintenance and
education of children. Here also, the welfare of the children is of paramount consideration, though the court is free
to consider other matters such as income of both parents, need of the child and the like.

Under most of the Indian personal laws the primary obligation to maintain the children is that of the father, but if the
father has no means or insufficient means and the mother has means, then the mother has the obligation to provide
for maintenance. Ordinarily, an order of maintenance comes to an end when the child attains the age of majority,
but in the welfare of the child it may be continued beyond it, particularly when the child is engaged in higher
education. The court will be justified in continuance of orders of maintenance and education beyond 18 years only
in exceptional cases such as the ill-health of the child, or any special promise held out by the father to continue
these arrangements beyond that age. Maintenance may also include reasonable expenses of the marriage of the
child, particularly of the daughter. It is doubtful whether the court will now allow such expenditure as under the
Indian law no minor is allowed to marry.

The matrimonial court has power to pass interim orders in these matters during the pendency of the proceedings.
On passing of a decree the court can pass permanent orders also.

At any time subsequent to the decree in a matrimonial cause, the court can pass such orders on the petition of
either party if no such orders were passed at the time of passing of the decree in a matrimonial cause.
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Custody of Minor Daughter: Visitation Rights of Father

The appellant father should not be denied complete access to his minor child even if there has been a default in
complying with the directions of the High Court and that pending the disposal of the appeals he should be allowed
to have access to his minor child.1

Variation of Orders
The variation of orders of custody, maintenance and education of children may be made by the court. Section 26 of
the Hindu Marriage Act, 1955 lays down that the court may “from time to time revoke, suspend or vary any such
orders and provisions previously made”. Custody and visitation right orders are interlocutory in nature. They can be
moulded and changed according to needs of child.2Section 58 of the Special Marriage Act, 1954 lays down “the
court may, after the decree upon application by petition for the purpose, make, revoke, suspend or vary, from time
to time, all such orders and provisions with respect to the custody, maintenance and education of such children as
might have been made by such decree or interim orders in case the proceedings for obtaining such decrees were
still pending”. Similarly, section 42 of the Indian Divorce Act, 1869 lays down that court “after a decree of judicial
separation, may upon application for the purpose make, from time to time, all such orders and provisions with
respect to custody, maintenance and education of the minor children... as might have been made by such decree or
by interim orders in case the proceedings for obtaining such decree were still pending”. A similar provision is found
in section 44 of the Act when the court passes a decree for dissolution of marriage. The Parsi Marriage and Divorce
Act, 1936 lays down that the court “after the final decree upon application by petition for the purpose, may revoke,
suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and
education of such children as might have been made by such final decree or by interim orders in case the suit for
obtaining such decree were pending”.

It is evident that despite some variation in the language of the provision in all the four statutes, the provision is
substantially the same. Thus the court has power to vary both interim orders and permanent orders whenever it is
called upon to do, when change in the circumstance of the parties and the children require it to do so. For the
variation of the order, it may take into account all those factors which it might have taken into consideration in
passing original order. But in every case the party seeking the variation, revocation, suspension or rescinding of the
order must convince the court that circumstances do exist necessitating the court’s intervention3

Ordinarily, such orders come to an end on child becoming adults, unless there exist some exceptional
circumstances justifying the continuance of the order.

Enforcement of Custody Orders

All orders passed under the matrimonial statutes can be enforced under the Code of Civil Procedure, 1908. In a
given case, the court can arrest a child and hand it over to the parent in whose favour custody order has been
made. In exceptional circumstances, the speedy remedy of habeas corpus may also be used.

Revision and Appeal

A revision petition also can be passed against an interim order in regard to children. Appeal may be filed against
permanent or final orders of custody, etc. (See for details Chapter XIII of this work).

Dispute as to Paternity of Child

In this instant issue the husband filed divorce petition on ground that wife was having extra marital relations and that
child born to her was not through him but due to adulterous life of wife. It was held that the High Court under
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inherent powers could compel parties to undergo DNA Test to find truth of the matter and clear misunderstanding
between parties.1
PART IV SETTLEMENT OF SPOUSAL PROPERTY

Today, the main aspect of English matrimonial law is the endeavour of law to make adequate financial provisions
for the spouses and children and make just and proper settlement of the property of the spouses. The Matrimonial
Causes Act, 1973, Part II deals with “financial relief for parties to marriage and children of family”, Part III deals with
“protection, custody etc., of children”. Besides this statute, there are other statutes which relate the settlement of
property2

But in India, the Indian Divorce Act, 1869 contains some provisions for the settlement of the property reflecting the
state of the 19th century English law. Similar provisions are found in the Parsi Marriage and Divorce Act, 1936. The
Special Marriage Act, 1954 contains no provision for the settlement of any type of property. The Hindu Marriage
Act, 1955 deals with the settlement of joint property of the spouses only.

Indian Divorce Act, 1869

Based as it is on the then English law, the Indian Divorce Act, 1869 contains some provisions for the settlement of
spousal property and financial adjustment. On a decree of divorce or judicial separation, the court has power to
make such orders as to the settlement of wife’s property as it thinks fit and reasonable for the benefit of the
husband or the children of the marriage or both3This provision appears to be penal in nature since it provides for
the settlement of the property of the wife who is found guilty of adultery. In case the husband has recovered some
damages from the co-respondent, the court may direct that the whole or any part of damages “shall be settled for
the benefit of the children of the marriage or as a provision for the maintenance of the wife”4Pursuant to its order for
the settlement of wife’s property the court may also order for the execution of an instrument for that purpose.

Section 40 of the Act relates to settlement of property after a decree absolute for divorce or decree of nullity of
marriage. The court may inquire into the existence of any post-nuptial settlement between the parties and may
make such orders, with reference to the application of the whole or a portion of the property settled whether for the
benefit of the husband or the wife or children (if any) of the marriage or both for the children and parents, as the
court deems fit, provided that the court shall not make any order for the benefit of the parents or either of them at
the expense of the children.

The guilty party, too, may make an application for varying a settlement, but ordinarily such request will not be
conceded unless there are special circumstances for doing so1

Protection orders.—Part VI of the Indian Divorce Act, 1869 provides for protection orders for the wife. A wife who
has been deserted by her husband (and who is not governed by section 4 of the Indian Succession Act, 1865) may
present a petition to the court, at any time after such desertion, for an order to protect any property which she may
have acquired, or may acquire, and any property of which she may have become possessed or may become
possessed after such desertion, against her husband or his creditors, or any person claiming under him2The court,
on being satisfied that desertion was without reasonable excuse and that the wife was maintaining herself by her
own industry, or property, “may make and give the wife an order protecting her earnings and other property from
her husband and all creditors and persons claiming under him”. Every such order shall state the time at which the
desertion commenced and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as
to such time3If the husband or any other creditor of, or person claiming under, the husband, seizes or continues to
hold any property of the wife after notice of any such order, he shall be liable at the suit of the wife (which she is
empowered to bring under this part) to return or deliver to her the specific property and also pay her a sum equal to
double its value4So long as any such order of protection remains in force, the wife shall be deemed to have been,
during such desertion of her, in the like position in all respects with regard to property and contracts and suing and
being sued as she would under this Act if she has obtained a decree of judicial separation5

The court has also the power to vary or discharge such order. The husband or any of his creditor or persons
claiming under him may apply to the court which made the order for the discharge or variation thereof and the court,
if the desertion has ceased, or if for any other reason it thinks fit so to do, may discharge or vary the order
accordingly6

Sections 60 and 61 of the Act provide safeguards to third persons who deal with a wife under protection. Every
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decree for judicial separation or order to protect property obtained by the wife shall, until reversed or discharged, be
deemed valid so far as necessary for the protection of any person dealing with the wife. Further, no reversal,
discharge or variation of such decree or order shall effect any rights or remedies which any person would otherwise
have had in respect of any contracts or acts of the wife entered into or done between the dates of such decree or
order and of the reversal, discharge or variation thereof. Any person who in reliance on the decree of judicial
separation or protection order makes any payment to or permits any transfer or act to be made or done by the wife
who has obtained the same shall notwithstanding such decree or order may then have been reversed, discharged
or varied, or the separation of wife from her husband may have ceased or at some time since the making of the
decree or order been discontinued, be protected and indemnified as if, at the time of such payment, transfer or
other act such decree or order were valid and still subsisting without variation and the separation had not ceased or
been discontinued, unless at the time of the payment, transfer or other act, such persons had notice of the reversal,
discharge, or variation of the decree, or order of the cessation or discontinuance or the separation.

It has further been laid down that the separated wife shall be deemed to be spinster with respect to her after-
acquired property and for purposes of contracts and suits1It may be recalled that a decree of judicial separation
does not terminate marriage and parties continue to be husband and wife though they separate from the bed and
board. The Indian Divorce Act, 1869 contains the following special provisions under which the position of the
separated wife is considered to be almost equivalent to the divorced wife. These provisions are:
(a) After the passing of decree of judicial separation and till such time the decree subsists, the wife be treated
as spinster for purpose of any property that she may acquire or which may come to her or devolve upon
her. The wife has full power of disposing of such property in any manner and if she died intestate, her
property will devolve on her heirs as if her husband had died earlier to her, subject to any contract to the
contrary, even if the separated wife resumes cohabitation with her husband, all properties to which she is
entitled to at the time when cohabitation was resumed shall be held by her to her separate use2
(b) After the decree of judicial separation and till such time decree subsists, the wife will be treated as spinster
for the purpose of contracts and wrongs and injuries and is capable of being sued and to sue in her own
right in all civil proceedings. Her husband shall not be liable in respect of any contract, act or costs entered
into, done, omitted or incurred by her during separation3
(c) However, if on a decree of judicial separation, an order of alimony has been made by the court and the
husband had not complied with the order the husband will be liable for necessaries supplied to her4
(d) Further, nothing shall prevent the wife from joining at any time during such separation, in exercise of any
joint power given to herself and her husband.1

Parsi Marriage and Divorce Act, 1936

Settlement of Wife’s Property.—Analogous to section 30 of the Indian Divorce Act, 1869, section 50 of the Parsi
Marriage and Divorce Act, 1936 lays down the provision for settlement of wife’s property on the ground of whose
adultery a decree for divorce or judicial separation had been passed. The section lays down:

In any case in which the court shall pronounce a decree of divorce or judicial separation for adultery of the wife, if it
shall be made to appear to the court that the wife is entitled to any property either in possession or reversion, the
court may order such settlement as it shall think reasonable to be made of any part of such property, not exceeding
one half thereof, for the benefit of the children of the marriage or any of them.

It may be noticed that the Indian Divorce Act, 1869 does not lay down any limit upto which the court may settle
wife’s property but the Parsi Marriage and Divorce Act, 1869 confines it to one-half. While under the former statute
settlement of wife’s property may be made for children as well as husband; under the latter statute the settlement
can be made only for benefit of the children.

Disposal of Joint Property.—Section 42 of the Parsi Marriage and Divorce Act, 1869 stipulates for the settlement
and disposal of joint property of the spouses. It lays down:

In any suit under the Act, court may make such provisions in the final decree as it may deem just and proper with respect to
property presented at or about the time of marriage which may belong jointly to both the spouses.
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The provision is limited to the joint properties presented to the parties at or about the time of marriage and does not
relate to their separate properties. It has no relation to the questions of title of property or to matters arising between
the spouses as owners or joint owners of property2This provision is analogous to the provision under section 27 of
the Hindu Marriage Act, 1955.3

Hindu Marriage Act, 1955

Section 27 of the Act, which provides for the disposal of property is analogous to section 42 of the Parsi Marriage
and Divorce Act, 1936. Section 27 runs:

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

The section has two requisites:

(i) The settlement of property can be made only at the time of the passing of the decree, i.e., when the court
grants a decree in a matrimonial cause, and not at any time subsequent thereto.
(ii) Orders relate only to the joint property of the spouses has been presented to them at or about the time of
marriage. The property of the parties acquired by them before or after the marriage is not within the
purview of the section.

The court is free to make any settlement of the joint property, either for the benefit of any spouse or children. It may
distribute the property among the spouses. In either case property must jointly belong to the husband and wife1In
M.D. Krishnan v. M.C. Padma2the Mysore High Court held that the property which is not presented to spouses at or
about the time of marriage is outside the purview of the section. But the Allahabad High Court in Kamta Prasad v.
Om Wati3has taken the view that the court has power of making necessary provision about separate property of the
spouses, since, the court said, section 27 does not debar the court from doing so. It is submitted that under the
Hindu Marriage Act, 1955 the court has no power of setting any property outside the scope of section 27. The view
has been dissented by other High Courts. In Shukla v. Brij Bhushan Makkar,4the Delhi High Court observed:

Section 27 of the Hindu Marriage Act, 1955, is a substantive provision empowering the court in any proceeding under the
said Act to make a just and proper order regarding property presented at or about the time of the marriage of the parties
and belonging jointly to both of them. The court exercising the jurisdiction under the Act is powerless to deal with properties
exclusively belonging to one or the other spouse5

In this case, the wife who pleaded that the properties were presented to her and, therefore, belonged to her. It was
held that she was not entitled to the relief of their recovery under section 27 of the Act. Her remedy lay by a suit in a
civil court. Neither could such an order be based on Order VII, rule 7 read with section 151 of the Code of Civil
Procedure, 1908.

In other cases also this view has been held. The Rajasthan High Court has also taken this view6The Court said that
section 27 of the Act is concerned only with the property which is jointly owned by the husband and the wife and
which has been given or presented or gifted to them at or about the time of the marriage. It does not relate to any
property which exclusively belongs to either the husband or the wife. Thus, order passed by trial court under section
27 regarding delivery of certain properties to wife on grounds that it exclusively belonged to her, was not proper. But
the court can make settlement of ornament kept in a Bank in joint names of husband and wife.7

An order under section 27 can be made subsequent to a divorce dissolving the marriage1

Section 27 provides an alternate remedy to the wife so that she can recover the property which is covered by the
section, by including it in the decree in the matrimonial proceedings, without having to take recourse to the filing of a
separate civil suit and avoid further litigation. Section 27 vests the jurisdiction in the court to pass an order, at the
time of passing a decree in a matrimonial cause, in respect of the property presented, at or about the time of
marriage, which may belong jointly to the husband and wife. The property, as contemplated by section 27, is not the
property which is given to the wife at the time of marriage only. It includes the property given to the parties before or
after marriage also, so long as it is relatable to the marriage. The expression “at or about the time of marriage” has
to be properly construed to include such property which is given at the time of marriage as also the property given
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before or after marriage to the parties to become their “joint property”, implying thereby that the property can be
traced to have connection with the marriage. All such property is covered by section 27 of the Act.2

Recovery of Ornaments.—Section 27 of the Act has a very narrow scope as it entitles the court to make such
provisions as it deems just and proper in respect of any property presented jointly to husband and wife at the time
of marriage. Although the Allahabad High Court in Kanta Prasad v. Omvati,3has held that the court has inherent
power to make arrangement in respect of the individual property also, it is submitted, this is not a correct view.
Without making any reference to this decision, the Allahabad High Court in Satya Pal Sethi v. Sushila Sethi,4has
held that wife cannot maintain a claim for the recovery of ornaments under section 27 in proceedings for divorce
filed by the husband. Since ornaments were the exclusive property of the wife as stridhan, if she desires to recover
the same from her husband, she will have to file a separate suit.5But the Madhya Pradesh High Court has held
where marriage has been declared null and void wife can file an application under section 27 to claim her
ornaments back. The court can entertain such application in its inherent jurisdiction.6Further in Sangeeta Balkrishna
Kadam v. Balkrishna Ramchandra Kadam,7it has been held that the court can grant relief in regard to the other
properties under section 151 of the Code of Civil Procedure, 1908.

1 Section 45 of the Matrimonial Causes Act, 1857 (now sections 24 and 25 of the Matrimonial Causes Act, 1973).
2 Section 5 of the Matrimonial Causes Act, 1869 (now sections 24, 25 and 52(1) of the Matrimonial Causes Act, 1973).
3 This is now section 41 of the Matrimonial Causes Act, 1973.
4 Part II of the Matrimonial Causes Act, 1973.
5 Surendra Kumar Asthana v. Kamlesh Asthana, AIR 1974 All 110 : ILR (1973) 2 All 508.
1 Rajinder Singh v. Patwant Kaur, (1982) HLR 693; Virendra Kumar v. Asha Rani, (1983) HLR 66 (These are cases
under the Hindu Marriage Act, 1955).
1 B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313 : AIR 2005 SC 986 : 2005 AIR SCW 934.
2 AIR 1993 SC 203 : (1993) 3 SCC 406: 1993 Cr LJ 2930 (SC).
1 T. Mohan Reddy v. Potu Krishnaveni, AIR 2010 AP 117 [LNIND 2009 AP 810]: 2010 (2) CCC 113: 2010 (2) Marri LJ
344.
2 Manju Kamal Mehra v. Kamal Pushkar Mehra, AIR 2010 Bom 34 [LNIND 2009 BOM 636]: 2009 (2) HLR 466: 2010 (2)
Marri LJ 36(DB).
1 (1975) HLR 241.
2 FAFO No. 55-M of 1962, dated 1-10-1964, cited in Ram Piari v. Piara Lal P.C.S., Divisional Agricultural Officer Patiala,
AIR 1970 P&H 341 : ILR (1971) 1 P&H 555 (DB); Manju Kamal Mehra v. Kamal Pushkar Mehra, AIR 2010 Bom 34
[LNIND 2009 BOM 636]: 2009 (2) HLR 466: 2010 (2) Marri LJ 36(DB).
3 ILR (1963) 1 Punj 574 .
4 AIR 1970 P&H 341 : ILR (1971) 1 P&H 555.
1 AIR 1961 Guj 202 [LNIND 1961 GUJ 61]: AIR 1961 SC 849 [LNIND 1961 SC 56]: (1961) 2 Cr LJ 128 (DB).
2 (1980) HLR 454: 1980 Mad LR 244: 1979 Raj LW 546 : AIR 1980 Raj 102 .
3 (1986) 1 HLR 363 (P&H).
1 (1986) 1 HLR 371.
2 AIR 1962 Bom 27 [LNIND 1961 BOM 19]: 64 Bom LR 27: (1962) Bom 195.
1 AIR 1963 Cal 428 [LNIND 1963 CAL 19]: (1963) 67 CWN 638.
2 AIR 1964 Bom 83 [LNIND 1962 BOM 75]: 65 Bom LR 441: ILR 1963 Bom 63 [LNIND 1962 BOM 75].
3 AIR 1967 Ori 163 : ILR (1967) Cut 439(DB).
4 ILR (1976) 1 Bom 127 .
5 Lentin, J., concurred.
1 Lentin, J., concurred at 143.
2 AIR 1989 AP 8 [LNIND 1986 AP 251]: (1987) 1 Andh LT 631 [LNIND 1986 AP 251]: (1987) 2 APLJ (HC) 21: (1988) 1
Hindu LR 26.
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3 See also Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, 1989 Mah LJ 337 [LNIND 1989 BOM 10]:
(1989) 1 HLR 708: AIR 1989 Bom 220 [LNIND 1989 BOM 10].
4 Polavarapu Hanumantha Rao v. Polavarapu Siva Parvathi, AIR 2009 AP 98 [LNIND 2008 AP 1099]: 2009 AIHC 514
(NOC): 2009 (4) ALJ (NOC) 643: 2009 (2) Andh LD 349(DB).
5 AIR 1971 P&H 141 : (1970) 2 Punj 551:71 Pun LR 923.
6 AIR 1980 Raj 102 : 1979 Raj LW 546: 1980 Mad LR 244.
7 (1986) 1 HLR 363 (P&H).
1 AIR 1989 Bom 220 [LNIND 1989 BOM 10]: (1989) 1 HLR 708: 1989 Mah LJ 337 [LNIND 1989 BOM 10].
2 (1990) 2 DMC 208.
3 AIR 1991 Bom 440 : 1991 MPLJ 754: (1991) 2 HLR 274.
4 AIR 1989 AP 8 [LNIND 1986 AP 251]: (1987) 1 Andh LT 631 [LNIND 1986 AP 251]: (1987) 2 APLJ (HC) 21: (1988) 1
Hindu LR 26.
5 AIR 1993 SC 203 : (1993) 3 SCC 406: (1993) Cr LJ 2930 (SC).
1 See also P. Shankar v. Vasanthi, (1995) 1 Civ LJ 35 : (1995) 2 DMC 313 : AIR 1995 AP 155 [LNIND 1994 AP 273];
Sukhdev v. Santosh, AIR 1998 Raj 12 : 1998 (1) CCC 548: 1998 (1) Marri LJ 304.
2 Though regrettably they have not been able to decide any case within six months as required under the Hindu Marriage
Act, 1955.
3 T. Mohan Reddy v. Potu Krishnaveni, AIR 2010 AP 117 [LNIND 2009 AP 810]: 2010 (2) CCC 113: 2010 (2) Marri LJ
344.
1 Originally, English law also provided for the maintenance of the wife alone. But modern English Matrimonial law
provides for the financial provisions for the husband also.
2 Section 37 of the Act lays down that order for permanent alimony may be passed when the court makes a decree
absolute—dissolving marriage, or passes a decree of judicial separation.
3 Turner v. Turner, AIR 1921 Cal 751 (FB).
4 Section 37 which refers to the decree of divorce or judicial separation passed by the district court lays down that the
District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on
any decree of judicial separation obtained by wife order that the husband shall to the satisfaction of the court secure to
the wife such gross sum of money, or such annual sum of money...”
5 Adigarla Simhachalam v. Adigarla Papamma, AIR 1973 AP 31 [LNIND 1972 AP 47]: (1972) 1 Andh LT 242 [LNIND
1972 AP 47]: (1972) 2 AP LJ 216; Govindrao Ranoji Musale v. Sou. Anandibai, AIR 1976 Bom 433 [LNIND 1976 BOM
88]: 79 Bom LR 73: 1977 Hindu LR 465.
1 Blackstone’s Commentaries, Vol. III, 94.
1 Komalam Amma v. Kumara Pillai Raghavan Pillai, AIR 2009 SC 636 [LNIND 2008 SC 2236]: 2008 AIR SCW 7799:
(2008) 14 SCC 345 [LNIND 2008 SC 2236]: (2008) 14 SCALE 470 [LNIND 2008 SC 2236].
1 The “proviso” omitted by Act 51 of 2001, sec. 21.
2 Ins. by Act 49 of 2001, sec. 4 (w.e.f. 24-9-2001).
3 Ins. by Act 49 of 2001, sec. 6 (w.e.f. 24-9-2001).
1 Ins. by Act 49 of 2001, sec. 8 (w.e.f. 24-9-2001).
2 Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 [LNIND 1997 SC 1118] : AIR 1997 SC 3397 [LNIND
1997 SC 1118]: 1997 AIR SCW 3474.
1 Subhankar Mukherjee v. Rakhi Mukherjee Nee Banerjee, AIR 2009 Cal 5 : 2008 (2) Cal LJ 868: 2009 (1) Cal LT 101:
2009 (2) Marri LJ 145.
2 Amit Kumar Sharma v. VIth Addl. District & Sessions Judge, Bijnor, AIR 1999 All 4 [LNIND 1998 ALL 410]: 1999 All LJ
25: 1998 (34) All LR 214 [LNIND 1998 ALL 410]: 1999 (1) Marri LJ 452.
3 Rameshwar Nath Gupta v. Kanta Devi, AIR 1957 Punj 85 : 59 Punj LR 203: ILR 1957 Punj 709; Raj Kumari v. Trilok
Singh, AIR 1959 All 628 [LNIND 1957 ALL 228]: 1957 All LJ 954; Kamala v. Shama Rupchand, AIR 1958 Bom 466
[LNIND 1958 BOM 21]: ILR (1958) Bom 949 [LNIND 1958 BOM 21]: 1958 Nag LJ 378 [LNIND 1958 BOM 21];
Nanjappa v. Vimala Devi, AIR 1957 Mys 44 : ILR (1956) Mys 317; Jwala Prasad v. Meena Devi, AIR 1987 All 130
[LNIND 1986 ALL 26]: 1986 All CJ 128: 1986 All WC 252: 1986 Mat LR 103.
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1 Hemraj Shamrao Umredkar v. Leela, AIR 1989 Bom 146 [LNIND 1988 BOM 350]: (1988) 2 DMC 325: (1988) 2 Cur CC
488: (1988) Mat LR 315; Gopalakrishnan Nair v. Thembatty Ramaniy, AIR 1989 Ker 331 [LNIND 1988 KER 542]:
(1989) 1 Ker LJ 124: (1989) 1 Ker LT 227 [LNIND 1988 KER 542]: 1990 (1) Hindu LR 202; Laxmibai v. Ayodhya
Prasad, AIR 1991 MP 47 [LNIND 1990 MP 146]: (1990) 2 DMC 594: 1991 (1) Hindu LR 56.
2 Subhankar Mukherjee v. Rakhi Mukherjee Nee Banerjee, AIR 2009 Cal 5 : 2008 (2) Cal LJ 868: 2009 (1) Cal LT 101:
2009 (2) Marri LJ 145.
3 Ranjana Vinod Kejriwal v. Vinod Babulal Kejriwal, AIR 2009 Bom 176 [LNIND 2009 BOM 729]: 2009 (5) AIR Bom R
722: 2009 (6) Bom CR 785 [LNIND 2009 BOM 729]: 2009 (6) Mah LJ 20 [LNIND 2009 BOM 729].
4 Krishnakant Mulashankar Vyas v. Reena Krishna Vyas, AIR 1999 Bom 127 [LNIND 1998 BOM 880]: 1999 (1) Bom CR
626 [LNIND 1998 BOM 880]: 1999 (1) Bom LR 425 [LNIND 1998 BOM 880]: 1999 (2) Marri LJ 125.
5 Bhanwar Lal v. Kamla Devi, AIR 1983 Raj 229 : 1983 Raj LW 314: 1983 Raj LR 640 : 1983 WLN 322.
6 Usha v. Sudhir Kumar, (1974) 76 PLR 135 [LNIND 1973 PNH 55]; Baboolal v. Prem Lata, AIR 1974 Raj 93 : 1974 Raj
LW 56; Arti Singh v. Lt. Col. Kanwar Pal Singh, AIR 1977 Del 76 [LNIND 1976 DEL 34]: 1976 HLR 646: (1976) 12 Del
LT 169; Ganesan v. Rasammal, AIR 1994 Mad 366 [LNIND 1994 MAD 291]: 1994 (2) Mad LJ 145: 1995 (21) Marri LJ
70; Ram Pal v. Nisha, AIR 1994 Raj 204 : 1994 (2) Cur LJ (CCR) 720; Sangeeta Balkrishna Kadam v. Balkrishna
Ramchandra Kadam, AIR 1994 Bom 1 [LNIND 1992 BOM 273]: 1995 (1) Bom CJ 315: 1994 Mah LJ 230: 1995 (20)
Marri LJ 163.
1 B. Saraswati v. B. Krishnamurthy, AIR 1960 AP 30 [LNIND 1959 AP 113]: (1959) 2 Andh WR 449: ILR 1959 AP 999;
Hema v. S. Lakshmana Bhat, AIR 1986 Ker 130 [LNIND 1985 KER 194]: (1986) 2 DMC 235: (1986) 2 Hindu LR 14.
2 Shella Sen v. Hitendra Sen, (1980) HLR 560; Lalithamma v. R. Kannan, AIR 1966 Mys 178 (DB).
3 A.B. Shirhatti v. Malabai, (1977) HLR 500.
4 Radhikabai v. Sadhuram Awatrai, 1969 MPLJ 565 [LNIND 1965 MP 144]: AIR 1970 MP 14 [LNIND 1965 MP 144]:
1969 Jab LJ 537; Srikami Awwal v. Bangarusamy Reddy, (1954) 2 MLJ 397.
5 Mukan Kanwar v. Ajeet Chand, AIR 1958 Raj 322 [LNIND 1958 RAJ 212]: 1959 Raj LW 627: (1958) 8 Raj 843.
6 AIR 1974 All 110 : ILR (1973) 2 All 508.
7 See also Major Ranjit Rai v. Chitralekha, ILR (1973) 2 Del 260 .
8 Rita Dutta v. Subhendu Dutta, AIR 2006 SC 189 [LNIND 2005 SC 607]: 2005 AIR SCW 5686: (2005) 6 SCC 619
[LNIND 2005 SC 607]: (2005) 6 SCALE 454 : 2005 (5) Supreme 596.
1 Latika Ghosh v. Nirmal Kumar Ghosh, AIR 1968 Cal 68 [LNIND 1967 CAL 110]: ILR (1968) 2 Cal 354 [LNIND 1967
CAL 110]; Kiran Saint v. Surinder Mohan, 1978 HLR 113.
2 AIR 1975 Raj 8 [LNIND 1974 RAJ 50]: 1974 Raj LW 291.
3 See also Mythili Raman v. K.T. Raman, AIR 1976 Mad 260 [LNIND 1976 MAD 337]: 89 Mad LW 264: (1976) 1 Mad LJ
399.
4 Amrik Singh v. Narinder Kaur, AIR 1979 P&H 211 : 1979 HLR 464: 1979 Ker LR 185.
5 Sipra Bhattacharyya v. Dr. Apares Bhattacharyya, (2009) 4 SCC 366.
6 Girdhari Maheshwari v. Nil, AIR 2009 Raj 38 [LNIND 2008 RAJ 279]: 2009 AIHC 329 (NOC): 2009 (1) Raj LW 615 :
2009 (1) WLC 668.
7 Subhankar Mukherjee v. Rakhi Mukherjee Nee Banerjee, AIR 2009 Cal 5 : 2008 (2) Cal LJ 868: 2009 (1) Cal LT 101:
2009 (2) Marri LJ 145.
8 AIR 1977 Del 76 [LNIND 1976 DEL 34]: 1976 Hindu LR 646: (1976) 12 Del LT 169: (1976) 78 Punj LR (D) 268.
1 Surendra Kumar Asthana v. Kamlesh Asthana, AIR 1974 All 110 : ILR (1973) 2 All 508; Rajinder Mahendroo v.
Madhurima Machendroo, (1978) HLR 85 (Punjab and Haryana High Court); Krishna Devi v. Karan Chand, (1978) HLR
177 (P&H).
2 AIR 1984 P&H 332 : ILR (1984) 2 P&H 298: (1984) 86 Punj LR 485.
3 Parchuri Rajya Lakshmi v. Parchuri Viswa Sankara Prasad, AIR 1995 AP 147 [LNIND 1995 AP 8]: 1995 (1) APLJ 319:
1995 (1) Andh LT 628 : 1995 (21) Marri LJ 445.
4 AIR 1984 Ker 214 [LNIND 1984 KER 117]: 1984 Ker LT 790 [LNIND 1984 KER 117]: 1984 Ker LJ 438.
5 (1982) KLT 417 [LNIND 1982 KER 61] (424): AIR 1983 Ker 139 [LNIND 1982 KER 61]: (1983) 1 DMC 432.
6 AIR 1984 All 302 [LNIND 1984 ALL 105]: 1984 All CJ 340: 1984 All WC 462.
1 Sarmi Chatterjee v. Udayan Chatterjee, AIR 2013 Cal 188 .
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2 Sobhana v. Amar Kanta, AIR 1959 Cal 455 [LNIND 1958 CAL 167]; Dr. Tarlochan Singh s/o Dr. Sunder Singh v.
Mohinder Kaur d/o Ghanya Singh, AIR 1963 Punj 249 : 65 Punj LR 19: ILR (1963) 1 Punj 74 .
3 AIR 1957 AP 170 : 1956 Andh LT 937: (1957) 1 Andh WR 75; Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal
98 [LNIND 1987 CAL 78]: (1987) 1 Cal HN 450: (1987) 2 DMC 162 : (1988) 92 CWN 54; Shymabati v. Ashrim Kumar,
AIR 1988 Cal 128 : (1988) 2 HLR 534.
4 Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: 1957 SCR 399 [LNIND 1957 SC
10]: 1957 SCJ 439 [LNIND 1957 SC 10].
5 Jalasutram Annapurnamma v. Jalasutram Ramakrishna Sastry, (1958) 2 Andh WR 282: AIR 1959 AP 49 [LNIND 1957
AP 91]; Madan Lal v. Meena, AIR 1988 P&H 31 : (1986) 90 Punj LR 601: ILR (1987) 2 P&H 102 : 1988 Marri LJ 341.
6 (1982) HLP 686(FB).
1 (1958) 2 Andh WR 282: AIR 1959 AP 49 [LNIND 1957 AP 91]; see also Vinod Kumar Kejriwal v. Usha Vinod Kejriwal,
AIR 1993 Bom 160 [LNIND 1992 BOM 193]: 1992 (2) Bom CR 648 [LNIND 1992 BOM 193]: 1993 (1) DMC 32 : 1993
Mat LR 123.
2 Krishna Kumari v. IVth Additional District Judge, Hamirpur, AIR 1989 All 198 [LNIND 1988 ALL 116]: 1988 All LJ 792:
1988 All WC 1049: 1990 (1) Hindu LR 177.
3 Rahul Samrat Tandon v. Neeru Tandon, AIR 2010 Uttra 67 : 2010 (2) DMC 554: 2011 (1) Hindu LR 278.
4 Narendra Kumar Mehta v. Suraj Mehta, AIR 1982 AP 100 [LNIND 1981 AP 200]: 1982 HLR 387: (1982) 1 DMC 242;
Bhanwarlal v. Kamla Devi, AIR 1983 Raj 229 : 1983 Raj LW 214: 1 (1983) 2 DMC 144; Saroj Devi v. Ashok Puri
Goswami, AIR 1988 Raj 84 : (1988) 1 HLR 717: (1988) 1 DMC 1.
5 AIR 1986 Ker 130 [LNIND 1985 KER 194]: (1986) 2 DMC 235: (1986) 2 Hindu LR 14.
6 AIR 1973 Raj 2 : 1972 WLN 750: ILR (1972) 22 Raj 1034 .
1 Sudershan Kumar Khurana v. Deepak, AIR 1981 P&H 305 : 1981 Hindu LR 345: ILR (1981) 2 P&H 400 ; Ellikkal
Kuniyil Raghavan v. K.K. Saroja, AIR 1987 Ker 151 [LNIND 1986 KER 265]: 1986 Ker LJ 1127: (1987) 1 Ker LT 376
[LNIND 1986 KER 265]: 1987 Mat LR 185.
2 Dr. Tarlochan Singh s/o Dr. Sunder Singh v. Mohinder Kaur d/o Ghanya Singh, AIR 1963 Punj 249 : 65 Punj LR 19: ILR
(1963) 1 Punj 74 .
3 Ram v. Janak, 1972 Cur LJ 703; Ram Narain v. Daropdi Devi, AIR 1983 Del 349 : (1983) 1 DMC 153: 1983 Hindu LR
262.
4 Mansaram Sharma v. Saraswati Devi, AIR 1977 Ori 55 [LNIND 1976 ORI 37]: 42 Cut LT 969: (1976) 2 Cut WR 644:
1977 Mat LR 60.
5 Neeta Rakesh Jain v. Rakesh Jeetmal Jain, AIR 2010 SC 3540 [LNIND 2010 SC 623]: 2010 AIR SCW 4417: 2010 (2)
DMC 275.
1 B. Saraswati v. B. Krishnamurthy, AIR 1960 AP 30 [LNIND 1959 AP 113]: (1959) 2 Andh WR 449: ILR 1959 AP 999.
2 Puran Chand v. Kamla Devi, AIR 1981 J&K 5 : 1980 Kash LJ 219: 1980 Marri LJ 473: 1981 Mat LR 222.
3 Tatikonda Subba Rao v. Tatikonda Anasuyamma, AIR 1957 AP 170 : 1956 Andh LT 937: (1957) 1 Andh WR 75.
4 Mukan Kunwar v. Ajeet Chand, AIR 1958 Raj 322 [LNIND 1958 RAJ 212]: (1958) 8 Raj 843: 1959 Raj LW 627;
Prasana Kumar Patra v. Sureswari Patrani, AIR 1969 Ori 12 [LNIND 1968 ORI 36]: 34 Cut LT 937: ILR (1968) Cut 657.
5 N. Subramanyam v. M.G. Saraswathi, AIR 1964 Mys 38 ; Shushila Devi v. Dhani Ram, AIR 1965 HP 12 [LNIND 1964
HP 2]; Dinesh Gijubhai Mehta v. Usha Dinesh Mehta, AIR 1979 Bom 173 [LNIND 1978 BOM 33]: 1979 Mah LJ 367
[LNIND 1978 BOM 33]: 1979 Mat LR 209.
6 AIR 1979 Bom 173 [LNIND 1978 BOM 33]: 1979 Mah LJ 367 [LNIND 1978 BOM 33]: 1979 Mat LR 209.
1 See also Rajdei v. Lautan, AIR 1980 All 109 : 1979 All WC 698.
2 AIR 1970 MP 14 [LNIND 1965 MP 144]: 1969 Jab LJ 537: 1969 MPLJ 565 [LNIND 1965 MP 144]: 1969 MPWR 1004.
3 See Pratima v. Kamal, (1964) 68 CWN 317; Jamna Dass v. Sahiboo, AIR 1975 HP 18 : ILR (1974) HP 466: 1975 Hindu
LR 489; Preeti Archana Sharma v. Ravind Kr. Sharma, AIR 1979 All 29 [LNIND 1978 ALL 4]: 1978 All WC 817: 1979
Mat LR 175; Dinesh Gijubhai Mehta v. Usha Dinesh Mehta, AIR 1979 Bom 173 [LNIND 1978 BOM 33]: 1978 UCR
(Bom) 650: 1979 Mah LJ 367 [LNIND 1978 BOM 33]: 1979 Mat LR 209; Raghvendra Singh Choudhary v. Seema Bai,
(1988) 2 DMC 107 : AIR 1989 MP 259 [LNIND 1988 MP 146]: 1990 (1) Hindu LR 251.
4 AIR 1984 Del 320 [LNIND 1983 DEL 327]: 1984 HLR 346: (1984) 1 DMC 141.
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5 The court dissented from the Allahabad High Court which observed that section 24 uses the word “support” and does
not use the word “standard” or “status”, see Preeti Archana Sharma v. Ravind Kr. Sharma, AIR 1979 All 29 [LNIND
1978 ALL 4]: 1978 All WC 817: 1979 Mat LR 175.
6 AIR 1985 Mad 195 [LNIND 1984 MAD 108].
1 AIR 1963 Ori 12 : 34 Cut LT 937: ILR (1968) Cut 657.
2 Several High Courts have taken this view: Mukan Kunwar v. Ajeet Chand, AIR 1958 Raj 322 [LNIND 1958 RAJ 212]:
(1958) 8 Raj 843: 1959 Raj LW 627; Shushila Devi v. Dhani Ram, AIR 1965 HP 12 [LNIND 1964 HP 2]; Dinesh
Gijubhai Mehta v. Usha Dinesh Mehta, AIR 1979 Bom 173 [LNIND 1978 BOM 33]: 1979 Mah LJ 367 [LNIND 1978
BOM 33]: 1979 Mat LR 209; see Paras Diwan, Modern Hindu Law, 178-79, (6th Edn.), where these and other cases
have been critically examined.
3 AIR 1985 Del 40 [LNIND 1984 DEL 277]: (1985) 8 Del Rep J 30: (1985) 1 DMC 63 : 1985 Mat LR 1.
4 AIR 1985 Mad 284 [LNIND 1984 MAD 91].
1 AIR 1989 Cal 80 [LNIND 1988 CAL 113]: (1988) 1 Cal HN 455: (1988) 92 Cal WN 1123: (1989) Mat LR 102.
2 AIR 1989 Del 10 [LNIND 1988 DEL 132]: 1988 Raj LR 428: 1988 Marri LJ 297: 1988 Mat LR 274.
3 AIR 1986 Ker 130 [LNIND 1985 KER 194]: 1985 Ker LJ 681: ILR (1986) 1 Ker 288 : (1986) 2 DMC 235.
1 Ashit Mukherjee v. Susmita Mukherjee, AIR 1987 Cal 153 [LNIND 1986 CAL 175]: (1986) 1 Cal HN 515: (1986) 90
CWN 1060 : (1986) 2 DMC 254.
2 Ellikkal Kuniyil Raghavan v. K.K. Saroja, AIR 1987 Ker 151 [LNIND 1986 KER 265]: 1986 Ker LJ 1127: (1987) 1 Ker
LT 376 [LNIND 1986 KER 265]: 1987 Mat LR 185.
3 Krishnapriya Mohapatra v. Birakishore Mohapatra, AIR 1987 Ori 65 [LNIND 1986 ORI 136]: (1986) 2 Hindu LR 499:
(1986) 61 Cut LT 554: (1986) 2 DMC 96.
4 AIR 1987 Del 43 [LNIND 1986 DEL 248]: (1986) 2 Hindu LR 148: 1987 Marri LJ 34: (1987) 92 Punj LR (D) 1; see also
Parchuri Rajya Lakshmi v. Parchuri Viswa Sankara Prasad, AIR 1995 AP 147 [LNIND 1995 AP 8]: 1995 (1) APLJ 319:
1995 (1) Andh LT 628 : 1995 (21) Marri LJ 445.
5 AIR 1987 AP 237 [LNIND 1986 AP 134]: (1987) 2 HLR 448.
1 AIR 1998 Pat 145 : 1998 (1) BLJR 684: 1999 (1) Marri LJ 420: 1998 (2) Pat LJR 344.
2 AIR 1988 Cal 83 [LNIND 1987 CAL 110]: 92 CWN 302: (1987) 2 DMC 139; see also Neelam Molhotra v. Rajinder
Malhotra, AIR 1994 Del 234 [LNIND 1993 DEL 361]: 1994 (1) Civ LJ 755: 1995 (21) Marri LJ 83: 1993 (3) RRR 577
[LNIND 1993 DEL 361].
3 Prem Nath Sarvan v. Prem Lata Sarvan, AIR 1988 Del 50 [LNIND 1986 DEL 115]: (1986) 2 HLR 91: (1986) 2 DMC 40.
4 AIR 1988 Cal 98 [LNIND 1987 CAL 78]: (1987) 2 DMC 162: 1987 Mat LR 306.
1 Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal 98 [LNIND 1987 CAL 78]: (1987) 2 DMC 162: 1987 Mat LR
306.
2 A. Venkatesan v. S. Kalpana, AIR 2009 Mad 85 [LNIND 2009 MAD 318]: 2009 AIHC 544 (NOC): 2009 (3) ALJ (NOC)
580.
3 AIR 1972 Guj 174 [LNIND 1971 GUJ 103]: (1972) 13 Guj LR 626: ILR (1971) Guj 1183.
4 AIR 1986 Guj 8 : (1985) 2 HLR 60: 1986 Mat LR 34.
5 AIR 1949 Mad 880 : (1949) 1 Mad LJ 550.
6 Yogeshwar Prasad v. Jyoti Rani, AIR 1981 Del 99 [LNIND 1981 DEL 11]: 1982 Hindu LR 169; Gangu Pundlik
Waghmare v. Pundlik Maroti Waghmare, AIR 1979 Bom 264 [LNIND 1979 BOM 92]: 1979 Mah LJ 555 [LNIND 1979
BOM 92]: 1979 Mat LR 337(husband alleged that the wife was living with co-respondent); Rajinder Kaur v. Attinderjit
Singh, AIR 1990 P&H 83 : (1989) 1 Cur LJ (Civ and Cri) 534: 1989 Marri LJ 371(husband alleged wife’s infidelity).
7 Mukesh Mittal v. Seema Mittal, AIR 2006 Del 145 [LNIND 2005 DEL 1487]: 2007 AIHC 145 (NOC): 2006 (1) Marri LJ
698: 2006 Mat LR 401.
8 R.C. Sheejakumari v. Praveen S.R., AIR 2015 Kant 135 .
9 Samir Kumar v. Sujata, (1966) 70 CWN 633.
1 AIR 1970 MP 14 [LNIND 1965 MP 144]: 1969 Jab LJ 537: 1969 MPLJ 565 [LNIND 1965 MP 144]: 1969 MPWR 1004.
2 C.B. Joshi v. Ganga Devi, AIR 1980 All 130 : 1980 Mat LR 217. For the contrary view, see Preeti Archana Sharma v.
Ravind Kr. Sharma, AIR 1979 All 29 [LNIND 1978 ALL 4]: 1978 All WC 817: 1979 Mat LR 175.
3 B. Saraswati v. B. Krishnamurthy, AIR 1960 AP 30 [LNIND 1959 AP 113]: (1959) 2 Andh WR 449: ILR 1959 AP 999.
 Page 73 of 83
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4 Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal 83 [LNIND 1987 CAL 110]: (1988) 1 HLR 677: 92 CWN 54.
5 Amrit Lal Nehru v. Usha Nehru, (1982) HLR 686; Sarvo Devi v. Lashkari, (1983) HLR 490.
6 Sarvo Devi v. Lashkari, (1983) HLR 490.
7 Ramesh Kumari v. Chaman Lal, (1977) HLR 415.
8 Mukan Kanwar v. Ajit Chand, AIR 1958 Raj 322 [LNIND 1958 RAJ 212]: (1958) 8 Raj 843: 1959 Raj LW 627.
9 (1975) HLR 480.
1 The learned Chief Justice B.P. Beri, who delivered the judgment said that under English law the following lists are not
taxed against the husband:—
(i) of an application by the wife for further time to answer to the petitioner,
(ii) of a motion for the husband to attend and examine on the wife’s petition for alimony after he has answered on oath
thereto, if the result of his examination is to establish the truth of his answer,
(iii) of an unsuccessful opposition by the wife to motion of further particulars of the charges in her petition for
dissolution of marriage,
(iv) on appearing on a motion if such appearance is unnecessary, though she may have received from the other side.
The learned Judges added that these principles may be binding under the Indian Divorce Act, 1869 by virtue
of section 7. However, they are not binding under other matrimonial Acts.
2 (1975) HLR 1: (1974) 76 Pun LR 195.
1 (1976) HLR 171.
2 (1977) HLR 513.
3 See also Manjit Kaur v. Gurdial Singh Gangawala, (1977) HLR 261: AIR 1978 P&H 150 : 1978 Marri LJ 323(where trial
court allowed Rs. 250 as expenses. The High Court felt it was too meagre and increased to Rs. 750); Natal v. Natal,
ILR (1986) 9 Mad 12 ; and Garlinge v. Garlinge, AIR 1922 All 508, (case under Parsi Marriage and Divorce Act, 1936
where de die in drem rule was applied). This is the rule of English law. Thomson v. Thomson, ILR (1887) 14 Cal 580 .
4 Mangala Bhivaji Lad v. Dhondiba Rambhan Aher, AIR 2010 Bom 122 [LNIND 2010 BOM 400]: 2010 (4) All MR 716:
2010 (4) Mah LJ 486 [LNIND 2010 BOM 400].
1 Bankim Chandra Roy v. Anjali Roy, AIR 1972 Pat 80 : 1971 Pat LJR 309: 1971 BLJR 1008; Puran Chand v. Kamla
Devi, AIR 1981 J&K 5 : 1980 Kash LJ 219: 1980 Marri LJ 473: 1981 Mat LR 222; Rajni Abrol v. Adarsh Abrol, AIR 1990
HP 86 [LNIND 1989 HP 18]: (1989) 2 Cur CC 652: (1989) 2 Hindu LR 114 : 1989 Mat LR 282.
2 Bibi Balbir v. Raghbir Singh, (1974) PLR 135; Usha v. Sudhir Kumar, (1974) 76 PLR 135 [LNIND 1973 PNH 55]; Dr. D.
Thimmappa v. R. Nagaveni, AIR 1976 Kant 215 [LNIND 1976 KANT 81]: (1976) 2 Kant LJ 24: 1976 Hindu LR 693 :
ILR (1976) Kant 250; Mahendra Kumar Mishra v. Snehalata Kar, AIR 1983 Ori 74 : 1982 East LR 437: (1983) 1 DMC
219; Meka Prakash v. Meka Deepa Rani, AIR 2012 AP 96 [LNIND 2011 AP 1634]: 2012 (3) Andh LD 48: 2012 (3)
DMC 23.
3 (1974) 76 PLR 135 [LNIND 1973 PNH 55].
4 Dr. D. Thimmappa v. R. Nagaveni, AIR 1976 Kant 215 [LNIND 1976 KANT 81]: (1976) 2 Kant LJ 24: 1976 Hindu LR
693 : ILR (1976) Kant 250.
5 Baboolal v. Prem Lata, AIR 1974 Raj 93 : 1974 Raj LW 56.
6 Amit Kumar Sharma v. VIth Addl. District & Sessions Judge, Bijnor, AIR 1999 All 4 [LNIND 1998 ALL 410]: 1999 All LJ
25: 1998 (34) All LR 214 [LNIND 1998 ALL 410]: 1999 (1) Marri LJ 452.
7 (2000) 4 SCC 266 [LNIND 2000 SC 524] : AIR 2000 SC 1398 [LNIND 2000 SC 524]: 2000 AIR SCW 1147.
1 Amina v. Hassan Koya, AIR 2004 SC 1227 [LNIND 2003 SC 477]: 2003 Cr LJ 2540: (2003) 6 SCC 93 [LNIND 2003
SC 477].
2 AIR 1987 Ker 78 : 1986 Ker LT 808: 1986 Ker LT 1020.
3 AIR 1987 Cal 230 [LNIND 1986 CAL 192]: (1986) 90 CWN 1149: (1986) 2 Cal HN 455: (1986) 2 Hindu LR 277.
1 M. v. Secretary of State for Work and Pensions, (2005) 2 WLR 740 (CA): (2004) EWCA 1343.
2 AIR 1988 Raj 84 : 1987 Raj LW 384: (1987) 2 Raj LR 317 : 1987 Mat LR 409.
1 Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 [LNIND 1987 ALL 65]: (1987) 1 DMC 460: (1987) 1
Hindu LR 558.
2 Suraj Parkash v. Mohinder Pal Sharma, AIR 1988 P&H 218 : (1988) 1 DMC 104: 1987 Marri LJ 592.
 Page 74 of 83
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3 AIR 1973 Raj 2 : 1972 WLN 750: ILR (1972) 22 Raj 1034 .
4 (1976) HLR 690.
5 See also Sandeep Kaur v. Charanjeet Singh, (1977) HLR 513; Manjit Kaur v. Gurdial Singh, AIR 1978 P&H 150 :
(1978) 1 Punj 9: 79 Punj LR 574; Sita Ram v. Krishna, (1977) HLR 145 (Raj); Anuradha v. Santosh Nath Khanna, AIR
1976 Del 246 [LNIND 1975 DEL 60]: 1976 Raj LR 74: (1976) 12 DLT 26 [LNIND 1975 DEL 60]: 1977 Hindu LR 35,
where the court varied the order of interim maintenance.
6 Krishnapriya Mohapatra v. Birakishore Mohapatra, AIR 1987 Ori 65 [LNIND 1986 ORI 136]: (1986) 2 Hindu LR 499:
(1986) 61 Cut LT 554: (1986) 2 Hindu LR 135.
7 Sipra Bhattacharya v. Dr. Apares Bhattacharya, (2009) 4 SCC 366 : 2009 AIR SCW 1932.
8 Sudeep Chaudhary v. Radha Chaudhry, AIR 1999 SC 536 : (1997) 11 SCC 286: 1998 AIR SCW 3845.
1 Raj Deerbhungo, General Manager v. Remaprit Singh, 14 MIA 605.
2 AIR 1962 Cal 88 [LNIND 1961 CAL 81]: 65 Cal WN 786: ILR (1962) 2 Cal 23 [LNIND 1961 CAL 81].
3 AIR 1987 Ori 617 : (1987) 63 Cut LJ 745: (1986) 2 Ori LR 63; to the same effect is Ghasiram Das v. Srimati Arundhati
Das, AIR 1994 Ori 15 : 1994 (1) DMC 578: 1994 Marri LJ 203: 1993 (2) Ori LR 508; Shashikala Pandey v. Ramesh
Prasad Pandey, AIR 2009 Chh 1 : 2009 AIHC 125 (NOC): 2009 (1) DMC 855 : 2008 (4) MPHT 12; Rani @ Raj Kaur v.
Balwinder Singh@ Gora, AIR 2014 P&H 34.
1 AIR 1993 Ker 181 [LNIND 1992 KER 272]: ILR (1993) 1 Ker 97 : 1992 (2) Ker LJ 912: 1993 Marri LJ 476.
2 AIR 1993 Bom 232 [LNIND 1992 BOM 384]: 1992 (3) Bom CR 129 [LNIND 1992 BOM 384]: 1995 (20) Marri LJ 257:
1992 Mat LR 411.
1 (1969) 1 HLJ 328.
2 See also Jai Rani v. Om Prakash, (1984) 1 DMC 154 : 1984 PLR 309: AIR 1984 Del 301 [LNIND 1983 DEL 293]; B.M.
Muniratnam Naidu v. Shantamma, AIR 1971 Mys 25 : (1970) 2 Mys LJ 281.
3 Anita Karmokar v. Birendra Chandra Karmokar, AIR 1962 Cal 88 [LNIND 1961 CAL 81]: 65 CWN 786: ILR (1962) 2
Cal 23 [LNIND 1961 CAL 81]. See also English decision in Kemp-Wetch v. Kemp-Wetch, (1910), p. 233, where the
same view is expressed. Yakub Masih v. Christina Masih, AIR 1941 All 93 : ILR (1940) All 802 : 1940 All LJ 737; W.
Codd v. B.E. Codd, AIR 1924 Bom 132 : 25 Bom LR 339: ILR 47 Bom 664, cases under the Indian Divorce Act, where
the same view was taken.
4 Dr. Tarlochan Singh s/o Dr. Sunder Singh v. Mohinder Kaur d/o Ghanya Singh, AIR 1963 Punj 249 : 65 Punj LR 19: ILR
(1963) 1 Punj 74 ; see also Balinder Singh v. Surinder Kaur, (1975) HLR 387 (P&H) where the High Court said that
order was wrong.
5 1975 Andh LT 321.
7 (1956) 2 MLJ 289.
7 Gurmeet Kaur v. Gur Raj, AIR 1989 P&H 223.
8 (1979) MLJ 76.
9 (1978) HLR 251.
10 (1978) HLR 258.
11 Dr. Suraj Parkash v. Mohinder Pal Sharma, AIR 1988 P&H 218 : (1988) 1 DMC 104: 1987 Marri LJ 592.
1 Madhu Mishra v. Additional Judge, Family Court, AIR 2006 All 182 : 2006 (3) ALJ 209: 2006 (63) All LR 275 : 2006 (2)
Marri LJ 256.
2 AIR 1993 All 133 [LNIND 1992 ALL 110]: 1993 All LJ 510: 1992 (2) All CJ 933: 1992 (3) All WC 1878.
1 Subs. by Act 51 of 2001, sec. 22.
1 Aruna Basu Mullick v. Dorothea Mitra, (1983) 3 SCC 522 [LNIND 1983 SC 182]: AIR 1983 SC 916 [LNIND 1983 SC
182]: 1983 Marri LJ 397.
2 Nandarani Mazumdar v. Indian Airlines, (1983) 4 SCC 461 : AIR 1983 SC 1201 : (1983) 2 DMC 395.
3 Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, (2005) 2 SCC 33 : AIR 2005 SC 422
[LNIND 2004 SC 1237]: 2005 (1) Marri LJ 422.
1 AIR 2005 SC 422 [LNIND 2004 SC 1237]: 2004 AIR SCW 6990: JT 2004 (10) SC 366 [LNIND 2004 SC 1237]: (2005)
2 SCC 33: 2005 (1) Supreme 155.
2 Sreeja v. Puliyankalath Rajesh, AIR 2012 Bom 154 [LNIND 2012 BOM 765].
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1 Khanabhai Kasnabhai Parmar v. Beenaben, AIR 2010 Guj 79 [LNIND 2009 GUJ 289]: 2010 AIHC 743 NOC: 2010 (2)
Marri LJ 340.
2 AIR 2014 Pat 147 [LNIND 2014 PAT 737].
3 Kadia Harilal Purshottam v. Lilavati Gokaldas, AIR 1961 Guj 202 [LNIND 1961 GUJ 61]: AIR 1961 SC 849 [LNIND
1961 SC 56]: (1961) 2 Cr LJ 128 (DB).
4 AIR 1963 Guj 242 [LNIND 1963 GUJ 53]: (1964) 5 Guj LR 188: ILR (1963) Guj 718.
5 Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Guj 150 [LNIND 1967 GUJ 126]: ILR (1967) Guj 866: 8 Guj LR
888.
6 Minarani Majumdar v. Dasrath Majumdar, AIR 1963 Cal 428 [LNIND 1963 CAL 19]: 67 CWN 638; Sisir Kumar Kundu
v. Sabita Rani Mandal, 75 CWN 932: AIR 1972 Cal 4 [LNIND 1971 CAL 150]; D.S. Seshadri v. Jayalakshmi, AIR 1963
Mad 283 [LNIND 1962 MAD 120]: 76 Mad LW 13: (1963) 1 Mad LJ 11: ILR (1963) Mad 384 [LNIND 1962 MAD 120]. In
Minarani v. Dasrath, AIR 1963 Cal 428 [LNIND 1963 CAL 19]: 67 CWN 638, the Court said, “unmarried” means, “not
remarried”. In Sisir Kumar Kundu v. Sabita Rani Mandal, AIR 1972 Cal 4 [LNIND 1971 CAL 150]: 75 CWN 932, the
Court said the words, “husband” and “wife” do not describe the marital status when application for permanent alimony is
made after a decree but refer to status when petition was filed. See also D.S. Seshadri v. Jayalakshmi, AIR 1963 Mad
283 [LNIND 1962 MAD 120]: 76 Mad LW 13: (1963) 1 Mad LJ 11: ILR (1963) Mad 384 [LNIND 1962 MAD 120]; A.R.
Munuswamy Rajoo v. Hamsa Rani, AIR 1979 Mad 15 : 87 Mad LW 537: (1974) 2 Mad LJ 237. In A.P.K.
Narayanaswami Reddiar v. Padmanabhan, AIR 1966 Mad 394 [LNIND 1965 MAD 269]: 79 Mad LW 231: (1966) 1 Mad
LJ 529: ILR (1966) 2 Mad 595 [LNIND 1965 MAD 270], the Court said that section 25 has no application to a marriage
which is nullity. But see Patel Dharamshi Premji v. Bai Sakar Kanji, AIR 1968 Guj 150 [LNIND 1967 GUJ 126]: ILR
(1967) Guj 866: 8 Guj LR 888; Durga Das v. Tara Rani, AIR 1971 P&H 141 : (1970) 2 Punj 551: 71 Pun LR 923;
Nathulal v. Mana Devi, AIR 1971 Raj 208 [LNIND 1969 RAJ 50]: 1970 Raj LW 369: ILR (1971) 21 Raj 879 ; where the
Court expressed the view that section 25 applies to all the four matrimonial causes.
1 M.D. Krishnan v. M.C. Padma, AIR 1968 Mys 226 : (1967) 2 Mys LJ 432: 12 Law Rep 209.
2 Nanigopal Chakravarty v. Renubala Chakravarty, AIR 1965 Ori 154 : 31 Cut LT 205.
1 Gurdev Kaur v. Channo, AIR 1986 P&H 251.
2 Saurvir v. Satiya, (1969) 70 CWN 633.
3 Bibi Balbir v. Raghubir, (1974) 76 PLR 135 [LNIND 1973 PNH 55].
4 Mukan Kunwar v. Ajeet Chand, AIR 1958 Raj 322 [LNIND 1958 RAJ 212]: (1958) 8 Raj 843: 1959 Raj LW 627; N.
Subramanyam v. M.G. Saraswathi, AIR 1964 Mys 38 ; Usha v. Sudhir Kumar, (1974) 76 PLR 195; S. Radhakumari v.
K.M.K. Nair, (1982) KLT 417 [LNIND 1982 KER 61] (424): AIR 1983 Ker 139 [LNIND 1982 KER 61]: (1983) 1 DMC
432.
5 M.D. Krishnan v. M.C. Padma, AIR 1968 Mys 226 : (1967) 2 Mys LJ 432: 12 Law Rep 209.
6 Garmail Singh v. Bhuchari, AIR 1980 P&H 120 : (1980) 2 P&H 658: 1980 Marri LJ 367.
7 Moumita Roychoudhury v. Abhijit Chatterjee, AIR 2014 Ori 5 : 2014 (2) CLR 323: 2014 (1) DMC 161.
1 O.D. v. O.D., (1976) Fam 83 (90), per Ormrod, L.J.
2 (1955), p. 215.
3 (1965) 1 WLR 1433 .
4 (1919), p. 283.
5 (1953) 1 WLR 522.
6 See Me-E-wan v. Me-E-wan, (1972) 1 WLR 1217; Griffiths v. Griffiths, (1974) 1 WLR 350 .
7 S. v. S., (1976) Fam 1.
8 Mathias v. Mathias, (1972) Fam 287; Coleman v. Coleman, (1973) Fam 10.
9 See Le-Roy Lewis v. Le-Roy Lewis, (1955), p. 1; Brett v. Brett, (1969) 1 WLR 487.
1 AIR 1968 Mys 226 : (1967) 2 Mys LJ 432: 12 Law Rep 209.
2 AIR 1958 Raj 322 [LNIND 1958 RAJ 212]: (1958) 8 Raj 843: 1959 Raj LW 627.
3 See also N. Subramanyam v. M.G. Saraswathi, AIR 1964 Mys 38 ; Usha v. Sudhir Kumar, (1974) 76 PLR 195; Leela
Devi Shriwastava v. Manoharlal Shriwastava, AIR 1959 MP 349 [LNIND 1959 MP 193]: 1959 MPC 307: 1960 MPLJ
710; C.B. Joshi v. Ganga Devi, AIR 1980 All 130 : 1980 Mat LR 217.
4 Dashrath Yadav v. Saroj, AIR 1989 MP 242 [LNIND 1988 MP 127]: 1989 MPLJ 54 [LNIND 1988 MP 127]: (1989) 1
DMC 222 : (1989) 1 Hindu LR 302.
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5 Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal 438 [LNIND 1959 CAL 220].
6 AIR 2013 SC 415 [LNIND 2012 SC 800]: 2013 (1) DMC 91: 2012 (2) Hindu LR 682.
7 AIR 1988 P&H 84 : (1987) 91 Punj LR 553: (1987) 1 Hindu LR 458 : ILR (1987) 2 P&H 495.
8 See also Dev Raj v. Harjit Kaur, 1981 HLR 416: 1982 Marri LJ 24.
9 Vinod Dulerai Mehta v. Kanak Vinod Mehta, 1989 Mah LJ 600 [LNIND 1989 BOM 181]: 1989 Mah LR 1522: AIR 1990
Bom 120 [LNIND 1989 BOM 181].
1 Dailey v. Dailey, (1947) All ER 847.
2 See Ackerman v. Ackerman, (1972) Fam 1.
3 (1973) Fam 72.
4 (1974) 1 WLR 219.
5 West v. West, (1978) Fam 1; Armstrong v. Armstrong, (1974) 118 SJ 579; Jones v. Jones, (1976) Fam 8, are some
other illustrative cases of this proposition.
6 A.K. Niblett v. R.H. Niblett, AIR 1935 Oudh 133 : ILR 10 Luck 627; Lah Frenais v. La Renais, AIR 1931 Sind 112 .
7 (1974) 76 PLR 135 [LNIND 1973 PNH 55].
1 AIR 1970 J&K 150 : 1970 Karn LJ 190(DB).
2 Manby v. Scott, (1600) Smith’s Leading Cases.
3 (1966) KLT 891 : AIR 1967 Ker 181 [LNIND 1966 KER 122]: 1966 KLJ 856.
4 AIR 1970 J&K 150 : 1970 Karn LJ 190(DB).
5 See also Sachindra Nath Biswas v. Banamala Biswas, AIR 1960 Cal 575 [LNIND 1960 CAL 6]: ILR (1961) 1 Cal 113
[LNIND 1960 CAL 6]: 64 CWN 225; Raghunath v. Ram Bala, (1972) 1 WWR 717.
6 AIR 1960 Cal 438 [LNIND 1959 CAL 220]. However, the Court added that just because wife was guilty of adultery, she
could not be denied alimony.
7 AIR 1973 Ker 273 [LNIND 1973 KER 59]: 1973 Ker LT 431 [LNIND 1973 KER 59]: 1973 Ker LR 383: 1973 Ker LJ 415.
1 (1949) 2 All ER 196 : (1949) LJR 1424: 65 TLR 489.
2 AIR 1960 Cal 575 [LNIND 1960 CAL 6]: ILR (1961) 1 Cal 113 [LNIND 1960 CAL 6]: 64 CWN 225.
3 AIR 1955 Bom 413 [LNIND 1955 BOM 24]: ILR 1955 Bom 856 [LNIND 1955 BOM 24]: 57 Bom LR 791.
4 AIR 1975 Cal 64 [LNIND 1973 CAL 272]: 1975 HLR 274 (DB); Sangeeta Shukla v. Ganesh Shukla, AIR 2014 Chhat 81
: 2014 (2) Civ LJ 432: 2014 (3) DMC 213.
5 (1969) All LJ 150.
1 AIR 1971 Raj 208 [LNIND 1969 RAJ 50]: 1970 Raj LW 369: ILR (1971) 21 Raj 879 .
2 K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176 [LNIND 2013 SC 142]: 2013 AIR SCW 1396: (2013) 5 SCC 226
[LNIND 2013 SC 142].
3 Dimple Gupta (Minor) v. Rajiv Gupta, AIR 2008 SC 239 [LNIND 2007 SC 1254]: (2007) 10 SCC 30 [LNIND 2007 SC
1254]: 2007 (12) SCALE 176 [LNIND 2007 SC 1254]: 2007 (8) Supreme 141.
4 AIR 1985 Bom 88 [LNIND 1984 BOM 233]: (1985) 1 DMC 83: (1985) 1 Hindu LR 86 (Bom).
5 See Kaithakulangara Kunhikannan v. Nellatham Veettil Malu, AIR 1973 Ker 273 [LNIND 1973 KER 59]: 1973 Ker LT
431 [LNIND 1973 KER 59]: 1973 Ker LR 383: 1973 Ker LJ 415, which has overruled Raja Gopalan v. Rajamma, (1966)
KLT 891 : AIR 1967 Ker 181 [LNIND 1966 KER 122]: 1966 KLJ 856.
1 Madhavi Ramesh Dudani v. Ramesh K. Dudani, AIR 2006 Bom 94 [LNIND 2005 BOM 1163]: 2006 (1) AIR Bom R 547:
2006 (1) Bom CR 20 [LNIND 2005 BOM 1163]: 2005 (4) Bom LR 1237 [LNIND 2005 BOM 1163].
2 Komalam Amma v. Kumara Pillai Raghavan Pillai, AIR 2009 SC 636 [LNIND 2008 SC 2236]: 2008 AIR SCW 7799:
(2008) 14 SCC 345 [LNIND 2008 SC 2236]: (2008) 14 SCALE 470 [LNIND 2008 SC 2236].
3 AIR 2012 Gau 170 [LNIND 2012 GAU 21]: 2012 (115) All Ind Cas 783.
4 (1976) Fam 8.
5 (1976) Fam 1.
6 Sunita Singh v. Raj Bahadur Singh, AIR 1999 All 69 [LNIND 1998 ALL 632]: 1999 All LJ 513: 1999 (2) Marri LJ 33:
1999 Mat LR 288.
 Page 77 of 83
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1 Saurvir v. Satiya, (1969) 70 CWN 633; Chitra Sengupta v. Dhruba Jyoti Sengupta, AIR 1988 Cal 98 [LNIND 1987 CAL
78]: (1987) 1 Cal HN 450: 1987 Mat LR 306: (1988) 92 CWN 54.
2 AIR 1961 Punj 2 .
3 See section 25(1) of the Matrimonial Causes Act, 1973.
4 AIR 1986 Raj 13 : (1985) 2 DMC 85: (1985) 2 Hindu LR 301.
1 Gopalakrishnan Nair v. Thembatty Ramani, AIR 1989 Ker 331 [LNIND 1988 KER 542]: (1989) 1 Ker LJ 124: (1989) 1
Cur CC 362: (1989) 1 Ker LT 227 [LNIND 1988 KER 542].
2 (1966), p. 17.
4 Quieros v. Quieros, AIR 1931 Oudh 315 . Case is under the Indian Divorce Act, 1869.
5 Bibi Balbir v. Raghbir, (1974) 76 PLR 135 [LNIND 1973 PNH 55].
6 Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128 : 56 Ind App 182: ILR 8 Pat 840; Lalithamma v. R. Kannan, AIR
1966 Mys 178 (DB).
1 (1953) All ER 798.
2 M.D. Krishnan v. M.C. Padma, AIR 1968 Mys 226 : (1967) 2 Mys LJ 432: 12 Law Rep 209.
3 AIR 1959 MP 349 [LNIND 1959 MP 193]: 1960 MPLJ 710: 1959 Jab LJ 708.
4 (1976) HLR 97.
5 AIR 1972 AP 377 [LNIND 1971 AP 110]: (1972) 1 Andh LT 133 [LNIND 1971 AP 110]: (1972) 2 Andh WR 200.
6 AIR 1975 Cal 64 [LNIND 1973 CAL 272]: 1975 HLR 274 (DB).
7 AIR 1964 Mys 38 .
8 See also Sheru v. Gustadji, (1977) 18 Guj LR 777: (1977) MLR 240, a case under the Parsi Marriage and Divorce Act,
1936 where wife was allowed Rs. 90 per month as alimony.
9 AIR 1984 Del 445 [LNIND 1983 DEL 225].
10 AIR 1994 Ori 5 : 1994 (77) Cut LT 283: 1994 (1) Hindu LR 668 : 1994 Marri LJ 148.
11 AIR 2010 SC 1586 [LNIND 2010 SC 312]: 2010 AIR SCW 2279: (2010) 4 SCC 509 [LNIND 2010 SC 312].
1 Ambalal v. Sharda Devi, (1955) 57 Bom LR 499.
2 Blanche Somerset Taylor v. Charles George Bleach, AIR 1915 Bom 50 : ILR 39 Bom 182.
1 Iswarayya v. Ishwarayya, AIR 1930 Mad 154 [LNIND 1929 MAD 35]: 124 Ind Cas 140: 58 Mad LJ 29.
2 Ritchson v. Ritchson, (1938) 2 Cal 22 : AIR 1938 Cal 321 (a case under the Indian Divorce Act, 1869);Nanigopal
Chakravarty v. Renubala Chakravarty, AIR 1965 Ori 154 : 31 Cut LT 205 (case under the Hindu Marriage Act, 1955).
1 Bussa Ansuya v. Bussa Rajaiah, AIR 1971 AP 296 [LNIND 1970 AP 168]: (1971) 1 Andh WR 191.
2 Section 28A.
3 Burrowes v. Burrowes,(1929) 15 TLR, under the Indian Divorce Act, 1869.
4 Durga Das v. Tara Rani, AIR 1971 P&H 141 : (1970) 2 Punj 551: 71 Pun LR 923.
5 Controller of Estate Duty v. G. Leelavathamma, (1978) HLR 496.
6 Minarani Majumdar v. Derarath Majumdar, AIR 1963 Cal 428 [LNIND 1963 CAL 19]: 67 CWN 638.
7 B. Saraswati v. B. Krishnamurthy, AIR 1960 AP 30 [LNIND 1959 AP 113]: (1959) 2 Andh WR 449: ILR 1959 AP 999;
Prithysraj Singhji v. Bai Shivaprabha, AIR 1960 Bom 315 [LNIND 1956 BOM 123]: 62 Bom LR 47: (1960) Bom 164.
1 AIR 1985 SC 945 [LNIND 1985 SC 145]: (1985) 4 SCC 556: 1985 Cr LJ 875.
2 Paras Diwan, Muslim Law in Modern India, (3rd Edn.), 135.
3 The authority for this proposition is Badruddin v. Aisha Begam, 1957 All LJ 300: 1957 All WR 155.
4 The authorities of this proposition are: Marian v. Kadir, AIR 1929 Oudh 527 ; Asmatulla v. Khatunnisa, AIR 1939 All 592
: 1939 ALJ 804: 184 IC 517; Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25 : (1932) 59 IA 21: 135 IC 762; Ahamad
Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 : ILR 59 Cal 833.
5 Paras Diwan, Muslim Law in Modern India, (3rd Edn.) (1985), 135.
6 (18th Edn.), 301.
 Page 78 of 83
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7 To the same effect is Tyabji’s, Muslim Law, (4th Edn.), Para. 304.
1 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145]: (1985) 2 SCC 557: 1985 Cr LJ
875.
2 The Holy Koran by Usuf Ali, 96.
1 The Quran, 38. We may also note the translation of Aiyat 241 as given by Marmaduke Pickthail in his work— The
Meaning of the Glorious Quran: Text and Explanatory Translation: “For divorced woman a provision is kindness. A duty
for those who ward off Evil.” In his work, The Quran Interpreted, Arthur, J. Arberry gives the translation of the verse
thus: “There shall be for divorced woman provision honourable—an obligation on the God fearing. So God makes clear
his sign for you: happily you will understand”.
2 Meaning of the Koran, Vol. 1.
3 The Running Commentary on the Holy Quran.
4 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145] (952): (1985) 4 SCC 556 : 1985 Cr
LJ 875.
1 The words “not exceeding five hundred rupees in the whole“omitted by the Code of Criminal Procedure (Amendment)
Act, 2001 (50 of 2001) (w.e.f. 24-9-2001).
2 Sirajmohmed Khan, Janmohamad Khan v. Hafizunnisa Yasin Khan, (1981) 4 SCC 250 [LNIND 1981 SC 384]: 1981 Cr
LJ 1430: AIR 1981 SC 1972 [LNIND 1981 SC 384].
3 The words “allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may
be” substituted for the words “allowance” by Code of Criminal Procedure (Amendment) Act, 2001.
1 Shah Abu Ilyas v. Ulfat Bibi, (1896) ILR 19 All 50: 1896 All WN 173; Ahamad Kasim Molla v. Khatun Bibi, AIR 1933 Cal
27 : ILR 59 Cal 833; Mohd. Shamsuddin v. Noor Jahan Begum, AIR 1955 Hyd 144 : 1955 Cr LJ 950: ILR 1955 Hyd
418; Amad Giri v. Begha, AIR 1955 J&K 1 : 1955 Cr LJ 1067; Tulsimani Bibi v. Abdul Latif, AIR 1936 Cal 97 : ILR 63
Cal 726: 40 Cal WN 392; K.A.S. Mohammed Ibrahim v. Minor Jaithoon Bivi Ammal, AIR 1951 Mad 831 [LNIND 1950
MAD 243] (1): (1951) 1 MLJ 449 [LNIND 1950 MAD 243]: 64 MLW 326.
2 Chandbi v. Bandesha, AIR 1961 Bom 121 [LNIND 1960 BOM 52]: 62 Bom LR 470: ILR (1961) Bom 866 [LNIND 1960
BOM 52].
3 1979 Cr LJ 151 : AIR 1979 SC 362 [LNIND 1978 SC 283]: (1979) 2 SCC 316 [LNIND 1978 SC 283]: 1979 SCC (Cri)
473 [LNIND 1978 SC 283]: (1979) 2 SCR 75 [LNIND 1978 SC 283].
4 Fazlunbi v. K. Khader Vali, AIR 1980 SC 1730 [LNIND 1980 SC 246]: 1980 Cr LJ 1249: (1980) 4 SCC 125 [LNIND
1980 SC 246]: (1980) 3 SCR 1127 [LNIND 1980 SC 246].
5 AIR 1981 SC 1243 [LNIND 1981 SC 93]: 1981 Cr LJ 754: (1981) 2 SCC 509 [LNIND 1981 SC 93]: 1981 SCC (Cri) 517
[LNIND 1981 SC 93].
6 AIR 1985 SC 945 [LNIND 1985 SC 145]: (1985) 4 SCC 556: 1985 Cr LJ 875.
7 Bai Tahira v. Ali Hussain Fiddaali Chotia, AIR 1979 SC 362 [LNIND 1978 SC 283]: (1979) 2 SCC 316 [LNIND 1978 SC
283]: 1979 Cr LJ 151; Fazlunbi v. K. Khader Vali, AIR 1980 SC 1730 [LNIND 1980 SC 246]: (1980) 4 SCC 125 [LNIND
1980 SC 246]: 1980 Cr LJ 1249.
1 AIR 1979 SC 362 [LNIND 1978 SC 283]: (1979) 2 SCC 316 [LNIND 1978 SC 283]: 1979 Cr LJ 151.
2 The District and Sessions Judge took a strange view of the law that under section 125, the Court had no jurisdiction to
consider the question of marital status.
3 The High Court paying attention to the matter summarily dismissed the revision petition.
1 The High Court paying attention to the matter summarily dismissed the revision petition.
2 Tahir Mahmood, Muslim Law of India, (1980), 133.
1 Kunhi Moyin v. Pathumma, 1976 Ker LT 87 : 1976 Mad LJ (Cri) 405: (1976) 1 Ker 182; Mohammad v. Sainabi, (1976) 1
KLT 711.
2 AIR 1980 SC 1730 [LNIND 1980 SC 246]: (1980) 4 SCC 125 [LNIND 1980 SC 246]: 1980 Cr LJ 1249 : (1980) 3 SCR
1127 [LNIND 1980 SC 246].
3 Fazlunbi v. K. Khader Vali, AIR 1980 SC 1730 [LNIND 1980 SC 246] (1736): 1980 Cr LJ 1249 : (1980) 4 SCC 125
[LNIND 1980 SC 246]: (1980) 3 SCR 1127 [LNIND 1980 SC 246].
4 Rukhsana Parvin v. Shaikh Mohd. Hussein, (1977) Cr LJ 1041 : 1977 Mad LJ 231: 79 Bom LR 123.
5 Kamalakshi Vasantha Kumari v. Sankaran Sadasivan, Trivandrum, AIR 1979 Ker 116 [LNIND 1978 KER 248]: 1979
Ker LT 5: ILR (1979) 1 Ker 148 : 1979 Cr LJ (NOC) 113 (FB).
 Page 79 of 83
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1 Kunhi Moyin v. Pathumma, 1976 Ker LT 87 : 1976 Mad LJ (Cri) 405: (1976) 1 Ker 182 . The same view was reiterated
in Mohammad v. Sainabi, (1976) 1 KLT 711, but this decision was not brought to the notice of the Full Bench.
2 Kunhi Moyin v. Pathumma, 1976 Ker LT 87 : 1976 Mad LJ (Cri) 405: (1976) 1 Ker 182.
3 Kunhi Moyin v. Pathumma, 1976 Ker LT 87 (96): 1976 Mad LJ (Cri) 405: (1976) 1 Ker 182.
4 Fuzlunbi v. K. Khadir Vali, (1980) 4 SCC 125 [LNIND 1980 SC 246]: 1980 Cr LJ 1249: AIR 1980 SC 1730 [LNIND
1980 SC 246] (1733).
5 See Hajuben Suleman v. Librahim Gandabhai,(1977) 18 Guj LR 133, which also, pronounced a view similar to Khalid,
J. The Court held that unless the divorcee voluntarily accepts a sum in lieu of future maintenance, she is still entitled to
her claim. The basic difference between the two views is that while Khalid, J., talks of pre-divorce composition of
maintenance, the Allahabad High Court talks of post-divorce composition, and, it is submitted that relates more to
clause (c) of section 127(3) than to clause (b) of section 127(3). The Court rightly observed: “This provision [clause (b)
of section 127(3)] which seeks to confer power on the court to cancel an order of monthly allowance passed by it in
certain specified contingencies, has to be confined strictly within the narrow limits laid down by sub-section (3). This is
because the provision for maintenance of wives, whether married or divorced who are unable to maintain themselves,
is a social welfare measure.”
1 Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 4 SCC 556 : 1985 Cr LJ 815: AIR 1985 SC 945 [LNIND 1985 SC
145].
2 Mulla, Principles of Mohamedan Law, 18th Edn., para 279; Tyabji, Muslim Law, 4th Edn., para 304 and Paras Diwan,
Muslim Law in Modern India, (1982), 130.
3 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145] (950): 1985 Cr LJ 875 : (1985) 2
SCC 556 [LNIND 1985 SC 145].
1 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145] (951-52): 1985 Cr LJ 875 : (1985)
2 SCC 556 [LNIND 1985 SC 145]: 1985 SCC (Cri) 245 [LNIND 1985 SC 145].
2 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145] (959): 1985 Cr LJ 875 : (1985) 2
SCC 556 [LNIND 1985 SC 145]: 1985 SCC (Cri) 245 [LNIND 1985 SC 145].
3 He quoted from Mulla, Principles of Mohammedan Law, 18th Edn., 308; Paras Diwan, Muslim Law in Modern India,
(1982), and the following two privy Council decisions: Hamira Bibi v. Zubaida Bibi, (1916) 46 IA 294 : AIR 1916 PC 46 :
38 All 581 (PC); Syed Sabir Hussain v. Farsand Hassan, (1937) 65 1A 119: AIR 1938 PC 80 .
1 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 [LNIND 1985 SC 145] (952): 1985 Cr LJ 875 : (1985) 2
SCC 556 [LNIND 1985 SC 145]: 1985 SCC (Cri) 245 [LNIND 1985 SC 145].
2 Equivalent to 3-4 rupees.
1 Hafijabi Suleman Darwajkar v. Suleman Mohammad Darwajkar, AIR 1996 Bom 79 [LNIND 1995 BOM 544]: (1996) 1
Mah LJ 485 [LNIND 1995 BOM 544]: 1996 (1) Mah LR 796.
2 Idris Ali v. Ramesha Khatun, AIR 1989 Gau 24 [LNIND 1988 GAU 5]: (1988) 2 Gau LR 202: (1989) 1 Cr LC 201: 1989
Mat LR 125.
1 AIR 1988 Guj 141 : (1988) 1 Guj LH 294: (1988) 29 Guj LR 452.
2 (1988) 3 Cri 147.
3 AIR 1990 AP 225 [LNIND 1990 AP 85]: 1990 Cr LJ 1364 (AP).
1 Islamic and Comparative Law Quarterly, (1985) 5-I.
1 K.A. Abdul Jaleel v. T.A. Shahida, AIR 2003 SC 2525 [LNIND 2003 SC 423]: 2003 AIR SCW 2710: JT 2003 (4) SC 4
[LNIND 2003 SC 423]: (2003) 4 SCC 166 [LNIND 2003 SC 423]: 2003 (3) Supreme 369.
2 AIR 2013 Jhar 43 [LNIND 2012 JHAR 130]: 2013 (1) AIR Jhar R 316: 2013 (2) DMC 187.
1 AIR 1990 AP 225 [LNIND 1990 AP 85]: 1990 Cr LJ 1364 (AP).
2 AIR 1969 SC 612 [LNIND 1968 SC 223]: (1969) 1 SCR 750 [LNIND 1968 SC 223]: 39 Comp Cas 410.
1 Danial Latifi v. Union of India, AIR 2001 SC 3958 [LNIND 2001 SC 2181]: 2001 Cr LJ 4660: 2001 AIR SCW 3932: JT
2001 (8) SC 218 [LNIND 2001 SC 2181]: 2001 (7) Supreme 297.
2 AIR 1993 Ker 21 [LNIND 1992 KER 82]: 1992 (2) DMC 621: 1997 (2) Marri LJ 157(Ker).
1 Noor Saba Khatoon v. Mohd. Quasim, AIR 1997 SC 3280 [LNIND 1997 SC 1009]: 1997 Cr LJ 3972: 1997 AIR SCW
3343: JT 1997 (7) SC 104 [LNIND 1997 SC 1009]: 1997 (6) Supreme 523.
2 Secretary, Tamil Nadu Wakf Board v. Syed Fatima Nachi, (1996) 4 SCC 616 : AIR 1996 SC 2423 : 1996 Cr LJ 3488.
 Page 80 of 83
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1 Idris Ali v. Ramesha Khatun, AIR 1989 Gau 24 [LNIND 1988 GAU 5]: (1988) 2 Gau LR 202: 1989 Mat LR 125; see
also Hazran v. Abdul Rehman, 1989 Cr LJ 1519 (P&H).
2 A.A. Abdulla v. A.B. Mohmuna Saiyadbhai, AIR 1988 Guj 141 (152): (1988) 1 Guj LH 294: (1988) 29 Guj LR 452:
(1988) 24 Reports 288.
1 Chand Patel v. Bismillah Begum, AIR 2008 SC 1915 [LNIND 2008 SC 712]: 2008 AIR SCW 2161: (2008) 4 SCC 774
[LNIND 2008 SC 712]: (2008) 4 SCALE 7 [LNIND 2008 SC 712]: 2008 (2) SCC (Cri) 490.
2 Paras Diwan, Muslim Law in Modern India, (1993), Chapter IX.
3 G.M. Jeelani v. Shanswar Kulsum, 1994 Cr LJ 271 : 1993 APLJ (Cri) 75: 1993 (1) LS AP 122.
1 Ins. by Act 49 of 2001, sec. 9 (w.e.f. 24-9-2001).
2 Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 [LNIND 2000 SC 324] : AIR 2000 SC 1019 [LNIND 2000 SC 324]:
2000 Cr LJ 1459.
1 Ins. by Act 49 of 2001, sec. 7 (w.e.f. 24-9-2001).
1 Subs. by Act 51 of 2001, sec. 25.
2 Subs. by Act 51 of 2001, sec. 26.
3 Ins. by Act 49 of 2001, sec. 5 (w.e.f. 24-9-2001).
1 Section 3.
2 Section 3(5).
3 Section 49.
4 Alka Bhaskar Bakre v. Bhaskar Satchidanand Bakre, AIR 1991 Bom 164 [LNIND 1990 BOM 18]: (1990) 2 Hindu LR
561: 1990 (2) Bom CR 388 [LNIND 1990 BOM 18]: 1990 Bom LR 255 [LNIND 1990 BOM 18].
1 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi, (1996) 4 SCC 76 [LNIND 1996 SC 869]: AIR 1996 SC
1963 [LNIND 1996 SC 869]: 1996 AIR SCW 2337.
2 Gurnam Kaur v. Puran Singh, (1996) 2 SCC 567 [LNIND 1996 SC 312].
3 Sections 41-44.
1 Section 18.
1 Avinash Devi v. Dr. Khazan Singh Aneja, AIR 1960 Punj 326 : 62 Punj LR 354; Samuel v. Shalla, AIR 1955 Mad 451
[LNIND 1954 MAD 227]: 56 Cr LJ 1192.
1 Paras Diwan, Modern Hindu Law, (1987), 187.
2 (1969) 3 All ER 578 (582).
3 See Wakeham v. Wakeham, (1954) 1 WLR 366.
4 It may be noted that now after the passing of Guardianship on Minors Act, 1971, mother as well as father have the
same rights in relation to custody of children.
1 Hewer v. Bryant, (1969) 3 All ER 578 (582).
2 S. v. S. and P., (1962) 1 WLR 445 : (1962) 2 All ER 1.
3 (1940) Ch 54.
4 See A.K. Niblett v. R.H. Niblett, AIR 1935 Oudh 133 : ILR 10 Luck 627; Sushila Ganju v. Kunwar Krishna, AIR 1948
Oudh 266 : 1948 Oudh WN 126: 1948 All WR CC 21; Saraswathibai v. Shripad Vasanji, AIR 1941 Bom 103 : 43 Bom
LR 79: ILR 1941 Bom 455; Jwala Prosad Sana v. Bachu Lal, AIR 1942 Cal 215 : 200 Ind Cas 362: 74 Cal LJ 196.
5 Kaliappa v. Valiammal, AIR 1949 Mad 688 ; Sundar v. Gopal, AIR 1953 MB 190 ; Mohini v. Virender Kumar, (1977) 3
SCC 513 : AIR 1977 SC 1359 .
6 Shanti Devi v. Gian Chand Her Sukh Rai, ILR (1956) Punj 239; Kaliappa v. Valiammal, AIR 1949 Mad 688 .
7 Shanti Devi v. Gian Chand Her Sukh Rai, ILR (1956) Punj 239.
1 Saraswati v. Shripad, ILR (1941) Bom 103.
2 (1977) 3 SCC 513 : AIR 1977 SC 1359 .
3 Kokkula Suresh v. State of Andhra Pradesh, AIR 2009 AP 52 [LNIND 2008 AP 827]: 2009 AIHC 292 (NOC): 2009 (1)
Andh LD 17: 2009 (3) CCC 716.
4 M. v. M., (1973) 2 All ER 81.
 Page 81 of 83
Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

5 (1971) 1 WLR 1486.

6 AIR 1942 Cal 215 : 200 Ind Cas 362: 74 Cal LJ 196.
1 Sunder v. Gopal, AIR 1953 MB 190 : 1952 MPLJ 83; Shanti Devi v. Gian Chand Her Sukh Rai, ILR 1956 Punj 239 : AIR
1956 Punj 234 : 58 Punj LR 496; Kaliappa v. Valiammal, AIR 1949 Mad 688 .
2 ILR 9 Bom 293.
3 See also Arthur v. M.D. Machinley, AIR 1932 Oudh 182, where the court said that the welfare of the children is the
paramount consideration.
4 See also Goad v. Goad, 69 PR 1870.
5 See also Esme v. Edward, AIR 1928 All 677 .
1 Section 1 of the Guardianship of Minors Act, 1971.
2 The Guardianship of Minors Act, 1971 (English).
3 McGrath (in re:), (1893) 1 Ch 786 .
4 (1970) AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR 540.
5 J. v. C., (1970) AC 668 (710-11): (1969) 1 All ER 788: (1969) 2 WLR 540.
1 Sections 41 and 43.
2 Section 49.
3 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 [LNIND 1973 SC 118]: AIR 1973 SC 2090 [LNIND 1973 SC
118].
4 AIR 1969 Del 283 [LNIND 1969 DEL 38]: (1969) 71 Punj LR (D) 314: ILR (1969) Del 291.
1 Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 [LNIND 2008 SC 1155]: AIR 2008 SC 2262 [LNIND
2008 SC 1155]: (2008) 6 Mad LJ 128.
2 AIR 1971 Mys 69 : (1970) 2 Mys 377.
3 AIR 1972 Raj 256 : 1972 WLN 315: 1972 Raj LW 618 : ILR (1972) 22 Raj 623 .
1 For detailed review of this development, see Paras Diwan, Parental Control, Guardianship and Custody of Minor
Children, Chapter VIII, (1973).
2 Baddi Reddi Bulliraju v. Kedam Surya Rao, AIR 1959 AP 670 [LNIND 1958 AP 81]: 1959 Andh LT 245 [LNIND 1958
AP 81].
3 Abdul Aziz Khan v. Nanhe Khan, AIR 1927 All 458 : 25 All LJ 248.
4 See Manjeet Singh v. Bakhshish Singh, AIR 1952 Punj 129 : 54 Punj LR 78.
5 Hassan Bhatt v. Gulam Mohammed, AIR 1961 J&K 5 . See also the following cases under the Hindu Marriage Act,
1955;Radha Bai v. Surendra K. Mudaliar, AIR 1971 Mys 69 : (1970) 2 Mys LJ 377; Chander Prabha v. Prem Nath
Kapur, AIR 1969 Del 283 [LNIND 1969 DEL 38]: 71 Pun LR (D) 314: ILR (1969) Del 291; Gheesi v. Shri Rama, AIR
1972 Raj 256 : 1972 WLN 315: 1972 Raj LW 618 : ILR (1972) 22 Raj 623 (custody was given to the mother).
6 A.K. Niblett v. R.H. Niblett, AIR 1935 Oudh 133 : ILR 10 Luck 627 (a case under the Indian Divorce Act, 1869).
7 (1934) All LJ 399: AIR 1934 All 722 .
1 ILR (1950) Mad 85.
3 Arun Lata v. Civil Judge, Bulandshahr, AIR 1998 All 29 [LNIND 1997 ALL 648]: 1998 AIHC 692: 1998 All LJ 29: 1998
(1) Marri LJ 410.
4 AIR 1984 HP 1 [LNIND 1983 HP 5]: 1984 HLR 181: 1983 Marri LJ 444(HP).
5 AIR 1984 Del 368 [LNIND 1984 DEL 70]: 1984 Raj LR 512.
1 AIR 1999 Ker 192 [LNIND 1998 KER 351]: 1999 (2) Marri LJ 574: 1999 Mat LR 409.
2 (1984) 3 SCC 698 [LNIND 1984 SC 108]: AIR 1984 SC 1224 [LNIND 1984 SC 108]: 1984 Marri LJ 364.
3 Surinder Kaur Sandhu v. Harbux Singh Sandhu, (1984) 3 SCC 698 [LNIND 1984 SC 108]: AIR 1984 SC 1224 [LNIND
1984 SC 108] (1226): 1984 Marri LJ 364.
1 AIR 2000 MP 330 [LNIND 2000 MP 49]: 2000 (2) Jab LJ 155: 2001 (1) Marri LJ 475.
2 See also Harulal Dasgupta v. Saudamini Misra, AIR 1985 Ori 239 [LNIND 1985 ORI 201]: (1985) 59 Cut LT 498:
(1985) 2 Hindu LR 100 : 1985 Mat LR 274.
 Page 82 of 83
Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

3 AIR 1987 SC 3 [LNIND 1986 SC 431]: 1987 SCC (Cri) 13 [LNIND 1986 SC 431]: (1987) 1 SCC 42 [LNIND 1986 SC
431].
1 AIR 1961 Mad 8 [LNIND 1959 MAD 58]: 1961 MPLJ 208: ILR 1961 MP 727.
2 J. v. C., (1970) AC 668 (724): (1969) 1 All ER 788 : (1969) 2 WLR 540 . See also K. (in re:), (1977) Fam 179; S. v. S.,
(1977) Fam 109.
3 S. v. S., (1977) Fam 109 (115-116) by Ormord, L.J.
4 See P. (in re:), (1969) 2 Ch 283 ; J. v. C., (1970) AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR 540.
5 (1914) 25 IC 122.
6 Albrecht v. Batha Jellama, 13 IC 453. For detailed review of the case law, see Paras Diwan, Parental Control,
Guardianship and Custody of Children, 307-308.
1 S. (in re:), (1967) 1 WLR 396; T. (in re:), (1969) 1 WLR 1608.
2 For the detailed review of case law, see Paras Diwan, L aw of Parental Control, Guardianship and Custody of Minor
Children, 267-270.
3 Murarilal v. Saraswati, AIR 1925 Lah 375 ; Ghulam Mohammed (in re:), AIR 1942 Sind 541 ; In the matter of Lovejoy
Patel, AIR 1944 Cal 433 : ILR (1943) 2 Cal 554; Gayatri Bajaj v. Jiten Bhalla, AIR 2012 SC 541 [LNIND 2011 SC
2246]: 2012 AIR SCW 291: (2011) 13 SCALE 527 [LNIND 2011 SC 2246].
4 Jaswant Kaur v. Chanan Singh, AIR 1962 Mani 60 ; Pamela Williams v. Patrick Cyril Martin, AIR 1970 Mad 427
[LNIND 1969 MAD 192]: 83 Mad LW 206: (1970) 2 Mad LJ 539: ILR (1970) 3 Mad 82 ; Ayesha Bhatia v. Vijay R.
Bhatia, AIR 1988 Del 149 [LNIND 1987 DEL 510]: 1988 Mah LJ 184 [LNIND 1987 BOM 437]: (1988) 2 Hindu LR 115.
5 S. v. S., (1977) Fam 109; K. (in re:), (1977) Fam 179.
6 Proviso to section 6(a).
7 Saraswathibai v. Shripad Vasanji, AIR 1941 Bom 103 : 43 Bom LR 79: ILR 1941 Bom 455.
1 ILR (1949) 2 Cal 374 .
2 But see Vasudevan v. Cishvalakshmi, AIR 1959 Ker 403 [LNIND 1958 KER 256]: 1959 Ker LJ 106: (1956) Ker LT 132,
where the custody of the child of two years was given to the father as he was the legal guardian. However, in Raman
Konderan v. Ayyappan Panohali, AIR 1959 Ker 396 [LNIND 1958 KER 277]: 1959 Ker LJ 208: 1959 Ker LT 280, the
Court took a contrary view.
3 Pollard v. Rouse, ILR (1890) 12 All 213 .
4 Rama Iyer v. Nataraja Iyer, AIR 1948 Mad 294 [LNIND 1947 MAD 224]: 49 Cr LJ 369: (1948) 1 Mad LJ 125.
5 AIR 1950 Mad 294 [LNIND 1949 MAD 127]: (1949) 2 MLJ 813 [LNIND 1949 MAD 127].
1 Mohan Kumar Rayana v. Komal Mohan Rayana, AIR 2008 SC 471 [LNIND 2007 SC 1291]: 2007 AIR SCW 7295:
(2007) 12 SCALE 758 [LNIND 2007 SC 1291]: 2007 (8) Supreme 68.
2 Vikram Vir Vohra v. Shalini Bhalla, AIR 2010 SC 1675 [LNIND 2010 SC 275]: 2010 AIR SCW 2261: (2010) 4 SCC 409
[LNIND 2010 SC 275].
3 Mohini v. Virender Kumar, (1977) 3 SCC 513 : AIR 1977 SC 1359 .
1 Buridi Vanajakshi v. Buridi Venkata Satya Varaha Prasad Gangadhar Rao, AIR 2010 AP 172 [LNIND 2010 AP 226]:
2010 (5) All MR 22JS: 2010 (3) Andh LD 626.
2 For instance see Maintenance Agreements Act, 1957; National Assistance Act, 1948; Supplementary Act, 1976;
Inheritance (Provisions for Family and Dependent) Act, 1973.
3 Section 39.
4 Para 3 of section 39.
1 Woodward v. Woodward, AIR 1938 All 126 .
2 Section 27.
3 Section 28.
4 Section 30.
5 Section 31.
6 Section 29.
1 Sections 24 and 25.
 Page 83 of 83
Chapter XII AFTERMATH OF DIVORCE: ANCILLARY PROCEEDINGS

2 Section 24.
3 Section 25, Para I.
4 First proviso to section 25.
1 Second proviso to section 25.
2 Banoo Jai Daruwalla v. Jal C. Daruwalla, 65 Bom LR 750: AIR 1964 Bom 124 [LNIND 1964 BOM 18]: 1964 Mah LJ
147.
3 Section 27.
1 Akasam Chinna Babu v. Akasam Parbati, AIR 1967 Ori 163 : ILR (1967) Cut 439(DB); Shakuntala v. Mahesh Atmaram
Badlani, AIR 1989 Bom 353 [LNIND 1989 BOM 79]: 1989 Mah LJ 332 [LNIND 1989 BOM 79]: (1989) 1 Bom CR 515
[LNIND 1989 BOM 79]: 1990 (1) Cur CC 124; Subhash Lata v. V.N. Khanna, (1991) 44 DLT 142 [LNIND 1991 DEL
156]: AIR 1992 Del 14 [LNIND 1991 DEL 156]: 1993 Marri LJ 44.
2 AIR 1968 Mys 226 : (1967) 2 Mys LJ 432: 12 Law Rep 209.
3 AIR 1972 All 153 : 1971 All WR (HC) 558: 1971 All LJ 1130.
4 AIR 1982 Del 223 [LNIND 1981 DEL 290]: 1982 Marri LJ 366.
5 See also Sushma Kumari v. Rameshchand, (1982) 1 DMC 272 : 84 Pun LR (D) 77; Surya Kant v. Jashumati, (1981) 1
HLR 473; Sangeeta Balkrishna Kadam v. Balkrishna Ramchandra Kadam, AIR 1994 Bom 1 [LNIND 1992 BOM 273]:
(1994) 2 Civ LJ 424: 1995 (20) Marri LJ 163.
6 Anil Kumar v. Jyoti, AIR 1987 Raj 157 : (1987) 2 HLR 162: (1987) 2 DMC 90.
7 Braj Kishore Sinha v. Rekha Sinha, AIR 1992 Pat 173 : 1991 (2) BLJR 990: 1993 Marri LJ 115: 1991 (2) Pat LJR 281.
1 Bijoy Krishna Ghosal v. Namita Ghosal nee Ganguly, AIR 1991 Cal 34 [LNIND 1990 CAL 197]: 1990 Mat LR 372.
2 Balakrishna Ramachandra Kadam v. Sangeeta Balakrishna Kadam, (1997) 7 SCC 500 [LNINDORD 1997 SC 119]: AIR
1997 SC 3562 [LNINDORD 1997 SC 119]: 1997 AIR SCW 3667.
4 AIR 1984 All 81 : (1983) 9 All LR 709: 1983 All CJ 681: 1984 Hindu LR 152.
5 See also Suraj Parkash v. Mohinder Pal Sharma, AIR 1988 P&H 218 : (1988) 1 DMC 104: 1987 Marri LJ 592.
6 Manish Nema v. Sandhya Nema, AIR 2009 MP 108 [LNIND 2009 MP 723]: 2009 AIHC 542 (NOC): 2009 (3) ALJ
(NOC) 589: 2009 (2) MPHT 267.
7 AIR 1994 Bom 1 [LNIND 1992 BOM 273]: (1994) 2 Civ LJ 424: 1995 (20) Marri LJ 163.

End of Document
 Chapter XIII PROCEDURE AND JURISDICTION
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter XIII PROCEDURE AND JURISDICTION

PART I PROCEDURE

Application of the Code of Civil Procedure, 1908

All the Indian matrimonial statutes lay down some procedural and jurisdictional rules. The rules are supplemented
by the Code of Civil Procedure made applicable to matrimonial proceedings. Since the provisions of Code of Civil
Procedure are made applicable to matrimonial proceedings as supplemental to the rules laid down in these
statutes, the provisions of the matrimonial statutes over-ride the provision of the Code of Civil Procedure and are
applicable only when they are not inconsistent with the provisions of the matrimonial statutes.

The provisions of Code of Civil Procedure also apply to all proceedings under the Dissolution of Muslim Marriage
Act, 1939. The Act of 1939 does not lay down any jurisdictional rules and thus the matters such as in which court
and at what place the suit for divorce is to be filed are governed by the provisions of Code of Civil Procedure, 1908.

The Supreme Court has held that once the court decides, that it has no jurisdiction, it cannot proceed on the merits
of the case.1

Hindu Marriage Act, 1955

Section 21 of the Act containing the provision, with marginal title of “Application of Act 5 of 1908”, runs:

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all
proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

Special Marriage Act, 1954

Section 40 of the Act containing the provision, with marginal title, “Application of Act 5 of 1908”, runs:

Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all
proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

Indian Divorce Act, 1869

Section 45 of the Act containing the provision, with marginal title “Code of Civil Procedure to apply”, runs as:

Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the
Code of Civil Procedure.
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Chapter XIII PROCEDURE AND JURISDICTION

Parsi Marriage and Divorce Act, 1936

Section 45 of the Act, with marginal title, “Provisions of Civil Procedure Code to apply to suit under the Act”, runs:

The provisions of Code of Civil Procedure, 1908, shall, so far as the same may be applicable, apply to proceedings in suits
instituted under this Act including proceedings in execution and orders subsequent to decree.

It should be noticed that section 40 of the Special Marriage Act, 1954 and section 21 of the Hindu Marriage Act,
1955 lay down that the provisions of the Code of Civil Procedure, 1908 will apply:
(a) subject to the other provisions contained in the Act, and
(b) subject to the rules framed by the High Court.

In other words, if the matter is covered by the statutes or the High Court rules, the question of application of the
provision of the Code of Civil Procedure, 1908 will not arise. This is the import of the words “as far as may be”
contained in both the sections. In Manjit Kaur v. Gurdial Singh,1 the Punjab and Haryana High Court observed:

The expression ‘as far as may be’ in the context in which it is used in section 21 excludes the applicability of only those
provisions of the Code which cannot in the nature of things apply to proceedings under the Act. This expression has
reference to different provisions of the Code and merely means that all those provisions of the Code shall apply to the
proceedings under the Act which are neither inconsistent with any provisions of the Act, nor contrary to its scheme or
purpose. It does not and cannot mean that a particular rule of procedure contained in the Code may be applied to one case
but not to the other, or that in one case it may be applied with full force and in the other not with its full rigour.

In the preceeding Chapters, it has already been stated as to how the courts have applied the provisions of the Code
of Civil Procedure, 1908 in several situations. In subsequent paragraphs this aspect of the matters in reference to
some specific matters has been considered.

Petition in a Matrimonial Cause: Particulars and Verification

All the Indian matrimonial statutes lay down that every petition filed in any matrimonial cause, the facts on which
relief is sought should be stated as distinctly as the nature of the case permits2. The Parsi Marriage and Divorce
Act, 1936 does not deal with procedural matters, but lays down that the provision of the Code of Civil Procedure,
1908 will apply to all proceedings so far as the same may be applicable3. Most of the High Court rules lay down that
specific facts which may be stated in the petition, such as, the date and place of marriage, the name, status,
domicile of parties (where necessary), the principal place where parties cohabited and the addresses where they
last resided together, and the name of children of the marriage (if any) together with their date of birth, and if prior to
the date of the petition there has been any proceedings between the parties to the petition with reference to their
marriage in any court of India, the result and the full particulars thereof. The High Court rules also lay down that
certain particulars are to be provided in respect of certain specific grounds (such as cruelty) on which relief is
based.

The petitions are to be verified in the manner as a plaint is required to be verified1. The petition may be referred to
as evidence at the time of hearing2. The High Court rules lay down the details of particulars to be given in the
petition3. (Please make reference to High Court rules, before drafting the petition).

The Indian Divorce Act, 1869 itself provides details of what particulars, in a matrimonial cause, a petition and written
statement should contain. It also contains a “Schedule of forms” which lays down forms for various matrimonial
petitions. Thehindu Marriage Act, 1955 and thespecial Marriage Act, 1954 contain only bare provisions as to the
particulars which a petition should contain. However, these have been supplemented by the High Court rules.

The Rules of the High Courts of Allahabad, Bombay and Rajasthan have adopted the forms contained in “Schedule
of forms” is the Indian Divorce Act, 1869. Some High Court rules prescribe their own forms. Reference may please
be made to the High Court rules reproduced in Appendix III of their work.
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Chapter XIII PROCEDURE AND JURISDICTION

In every petition, the particulars of the ground on which relief is sought should be given and similarly specific denials
of or acceptance of the same should be made in the written statement. But a petition is not required to contain the
details of evidence by which the petitioner seeks to establish his case4. It hardly matters that a petition is described
as plaint5.

Proceedings under section 13(1) of Hindu Marriage Act cannot be converted to one under section 13B. Nor can
petition under section 13B be filed before the District Court.6

Amendment of pleadings.—Pleadings in a matrimonial cause can be amended in the same manner as plaint and
written statement can be amended7. The provision of the Code of Civil Procedure, 1908 apply to such amendment8.

Under most of the High Court rules, in a petition for divorce on the ground of adultery, the adulterer is required to be
made a co-respondent wherever possible. In Udai Narain Bajpai v. Kusum Bajpai,1the Andhra Pradesh High Court
rules in this connection came for consideration. In this case the petitioner had failed to make the adulterer as co-
respondent. The question was: Was this omission fatal? Could it not be rectified by amendment of the petition? The
Andhra Pradesh High Court said that even if the alleged adulterer was not made a co-respondent and the petition
was not accompanied by an application and affidavit giving the reason why it was not done, it was not fatal to the
petition and the petitioner could be allowed to amend under Order 6, rule 17 and Order 1, rule 10 of the Code of
Civil Procedure, 1908.

The courts have allowed amendment of pleadings in several situations, even in situations which arise after the
commencement of the proceedings. In Sawita Devi v. Pran Nath,2 a petition on the ground of desertion was filed
and at the time of filing of the petition only a period of two years, five months and three days could be shown as the
period during which respondent was in desertion. At that time the law required a period of three years’ desertion to
constitute the ground. However, during the pendency of the proceedings the period of three years got completed.
The petitioner was allowed to amend the petition3.

Before 1976, cruelty and desertion were ground of judicial separation and not divorce under Hindu Marriage Act,
1955. The Marriage Laws (Amendment) Act, 1976 made these as grounds of divorce also. The amending Act was
also made applicable to pending proceedings. In Sundari Devi v. Basudeo Lal,4 a petition for judicial separation was
filed on the ground of desertion and cruelty. After the coming into force of Act of 1976 the petitioner sought to
amend his petition so as to claim the relief of divorce. The petition was allowed to be amended5. Similarly, in
Basomi Preeti v. Bruce Valenine,6a case under the Indian Divorce Act, 1869, the petitioner was allowed to amend
the petition at the appellate stage where-under she sought to change her prayer of divorce to judicial separations.

Of course, the Act of 1976 does not automatically apply to pending proceedings. One has to amend the pleadings7.

Parties to Petition
The only parties to a petition in a matrimonial cause are husband and wife. In a case where cause of action is
based on the ground of adultery, the adulterer or adulteress is also a party as co-respondent. Parents of either
spouse are not, and cannot be, parties to the petition. The matrimonial jurisdiction is a special jurisdiction which is
controlled by the statute under which petitions are made. Disposal of a petition on the basis of contentions of the
parents of the wife-respondent is not competent and wrong1.

Legal representative of a deceased spouse.—In Vadalasetti Samrajyamma v. Vadalasetti Nagamma,2 where

husband died pending proceedings to set aside ex parte proceedings against the wife, the court said that legal
representative could continue as well as adulteress proceedings3.

Adulterer or adulteress as co-respondent.—Most of the High Court rules under all the matrimonial statutes lay
down that adulterer should be made a co-respondent; but in case adulterer’s name, identity or whereabouts are
unknown to the petitioner inspite of reasonable enquiries made by him and the court is satisfied that it is just and
expedient so to do, the court shall, on the application of the petitioner supported by an affidavit, dispense with the
requirement. But this provision is mandatory and the court would not proceed with the matter unless that is done4.
But if adulterer died during the pendency of the appeal, his legal representative need not be brought on the record5.

In terms of rule 11(a) of Hindu Marriage (Kerala) Rules, it is mandatory that the co-adulterer shall be a party in a
petition for divorce on the ground of adultery. It can be dispensed with only in any of the circumstances mentioned
 Page 4 of 27
Chapter XIII PROCEDURE AND JURISDICTION

in clause (d) of rule 11 which provides that exemption can be sought for only in case the name of the alleged
adulterer is not known. When the name is known to the respondent, he could have impleaded the alleged co-
adulterer in the last known address, service of which could have been effected taking appropriate steps. Therefore,
this is a case where an application under clause (d) of rule 11 ought not to have been allowed by the court below.6

Presence of adulterer enables a court to effectuate and completely adjudicate upon and settle all questions in the
case. Hence, adulterer is a proper party.7

In a petition for divorce or judicial separation under the Divorce Act, 1869 it is mandatory that the adulterer should
be made co-respondent, unless the alleged adulterer or adulteress is dead or his or her name is not known to the
petitioner, or for any reason that the court considers that he or she need not be made a co-respondent8. Section 34
of the Act provides that husband may claim damages from the co-respondent1. Once the court awards damages
against the adulterer, it is for the court to direct in what manner such damages shall be paid or applied. Section 55
of the Act empowers the court to award costs against the adulterer. Some of the High Court rules also provide that
if in the written statement the respondent alleges adultery by the petitioner with a named man or woman, a certified
copy of such allegations must be served upon such man or woman and he or she may intervene in the
proceedings. If the intervention is found to be baseless, the court may saddle the intervener with costs. The Indian
Divorce Act, 1869 contains a specific provision in this regard2. It is submitted that in the absence of specific
provision in the High Court rules, the same objective may be attained under rule 10(2) of Order 1 of the Code of
Civil Procedure, 1908.

Some High Court rules also provide that on the application of the petitioner, the courts may award damages against
the co-respondent. But it seems in the absence of such rules the Court has no power to award damages against the
co-respondent 3.

The High Court rules in this regard are not uniform, particularly in respect of the provision as to when a dispensation
of this provision may be made. Before filing a petition on the ground of adultery, one should peruse the relevant
High Court rules.

The Kerala High Court Rules, 1963, provide that when adultery is pleaded as a ground for matrimonial relief, the co-
adulterer must be made a co-respondent and where adulterer is not known or for any other reason it is not possible
to join him as co-respondent, an application to dispense with the requirement should be made. The court held that
where this was not done, the petition for divorce was not maintainable4. On the other hand, in Gali Kondaiah v. Gali
Ankamma,5the Andhra Pradesh High Court held that such a rule framed before the amendment of 1976 was no
longer in force and thus it was not necessary to implead the co-respondent. The court said that before the 1976
amendment “living in adultery” was the ground and after the amendment one act of adultery was enough and hence
the rule no longer remained in force. This seems to be spacious argument. It is submitted that this case was
decided on a technical ground. Since under section 11 of the Indian Divorce Act, 1869 it is mandatory that adulterer
should be made a party, and if adulterer has not been made a party, the High Court would refuse to confirm the
decree6. Thus where adulterer was not a party to the suit though the petitioner-husband mentioned his name in his
petition and wife admitted adultery, the court still refused to pass a decree as adulterer was not joined as co-
respondent1.

The Parsi Marriage and Divorce Act, 1936, the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 do not
contain any analogous provision. However some High Court rules contain a similar provision. The rule 9 of the
Andhra Pradesh High Court rules contain a provision under which damages can be claimed against co-
respondent2. In the absence of such a rule, such an action cannot be filed under Order 2, rule 2 of the Code of Civil
Procedure, 19083.

The claim for damages against the co-respondent is an archaic provision which is not in consonance with modern
thought: one should not be allowed to profit out of immorality of one’s wife. It may be noted that under the Divorce
Acts it is only husband who can seek damages against the co-respondent. The wife has no such right. The Hindu
Marriage Act, 1955 and thespecial Marriage Act, 1954 do not contain such a provision.

The Indian Divorce (Amendment) Act, 2001 (51 of 2001) empowered the High Corut to remove certain suits by
amending the section 17 of the Indian Divorce Act, 1936. The provision runs as:

Section 17: Power of High Court to remove certain suits.—During the progress of the suit in the Court of the District Judge,
any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a
divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply
 Page 5 of 27
Chapter XIII PROCEDURE AND JURISDICTION

to the High Court to remove the suit under section 8, and the Court shall thereupon, if it thinks fit, remove such suit and try
and determine the same as a court of original jurisdiction, and the provisions contained in section 16 shall apply to every
suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be
necessary, to enable him to make a decree in accordance with the justice of the case.

The same Amendment Act amended tentatively section 11 of the Indian Divorce Act, 1936 by substitution this
section that runs as:

Section 11: Adulterer or adulteress to be co-respondent.—On a petition for dissolution of marriage presented by a husband
or wife on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the
petitioner is excused by the Court from so doing on any of the following grounds, namely:—

(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is
leading an immoral life and that the petitioner knows of no person with whom the adultery has been
committed;
(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has
made due efforts to discover it;
(c) that the alleged adulterer or adulteress is dead.

When Petitioner or Respondent is Minor or Person of Unsound Mind

It may happen that a petitioner or respondent in a petition in a matrimonial cause is a minor or person of unsound
mind. When a petition for divorce on the ground of insanity (which is ground for divorce and judicial separation) of
the respondent is filed, the respondent is obviously a person of unsound mind. Similarly, when a petition for nullity
of marriage or for annulment of marriage is filed against the respondent on the ground of his or her pre-marriage
insanity, lunacy or idiocy, the respondent is a person of unsound mind. The matrimonial statutes do not provide that
in such cases a guardian ad litem is to appoint to protect the interest of the spouse who is of unsound mind.
However, Order XXXII of the Code of Civil Procedure, 1908 contains a provision to that effect. The Supreme Court
has observed: “It is now a well-settled principle that, if a decree is passed against a minor without appointment of a
guardian the decree is nullity and not merely voidable. The principle becomes applicable to the case of a lunatic in
view of rule 15 of Order XXXII of the Code of Civil Procedure”. In Asha Rani v. Amrit Lal,1husband filed a petition for
divorce against his wife on the ground of insanity under the Hindu Marriage Act, 1955 suing her through her brother.
The petitioner did not provide the name and addresses of the other near relations of the wife. The court also did no
ask him to do so. A decree of divorce was passed by the trial court. On appeal, the Punjab and Haryana High Court
set aside the decree on the ground of non-compliance with Order XXXII of the Code of Civil Procedure, 1908.

Section 48 and section 49 of the Indian Divorce Act, 1869 provide for suits on behalf of lunatics and suits on behalf
of the minors respectively. In case of a lunatic no suit for restitution of conjugal rights can be presented by the next
friend of the lunatic. Other suits can be filed by the committee or other person entitled to his or her custody.

Transfer of Petitions and Joinder of Petitions

The Code of Civil Procedure contains provisions under which a court has power of joinder of causes of actions. The
trial court also has power of transferring cases. Now the Special Marriage Act, 1954 and the Hindu Marriage Act,
1955 have a specific provision in this regard.

Section 40A of the Special Marriage Act, 1954 containing the provision runs:

(1) Where—

(a) a petition under this Act has been presented to the district court having jurisdiction, by a party to the marriage
praying for a decree for judicial separation under section 23 or for a decree of divorce under section 27, and
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(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for
decree for the judicial separation under section 23 or for decree of divorce under section 27 on any ground
whether in the same district court or in a different district court, in the same State or in a different State,

the petition shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,—

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by
that district court.

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the
district court in which the earlier petition was presented and both the petitions shall be heard and disposed of
together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent
under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the
later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to
transfer such later petition as if it had been empowered so to do under the said Code.

Section 21A of the Hindu Marriage Act, 1955 containing the provision runs:

(1) Where—
(a) a petition under this Act has been presented to a district court having jurisdiction, by a party to a marriage
praying, for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and

(b) another petition under this Act has been presented hereafter by the other party to the marriage praying for a
decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground,
whether in the same district court or in a different district courts, in the same State or in a different State.

the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,—

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by
that district court;

(b) if the petitions are presented to different district courts, the petitions presented later shall be transferred to the
district court in which the earlier petition was presented and both the petitions shall be heard and disposed of
together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court, or the Government, as the case may be, competent
under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the
later petition has been presented to the district court in which earlier petition is pending, shall exercise its powers to transfer
such later petition as if it had been empowered so to do under the said Code.

It should be noticed that the provision under both the statutes relates to petition for divorce and judicial separation
only.

The Indian Divorce Act, 1869 in its section 8 also confers a similar power on the High Court. That section runs:

The High Court may, wherever it thinks fit, remove and try and determine as a court of original jurisdiction any suit or
proceedings instituted under this Act in the court of any District Judge within the limits of its jurisdiction under this Act.

The High Court may also withdraw any such suit or proceedings, and transfer it for trial or disposal to the court of any other
such District Judge.

The intention behind section 8 of the Act is to give the High Court an overriding power to transfer a suit or any
proceeding initiated under the Act from the Court of one District Judge to any other District Judge within its
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jurisdiction. The words “its jurisdiction” mean the jurisdiction of the High Court. Therefore when by the second
portion of section 8 the High Court has been given the additional power of transferring any such suit or proceeding
for trial and disposal to the court of any other such District Judge, it is a reference to a District Judge within the
territorial limits of the High Court. The transferee court does not necessarily have to have territorial jurisdiction to try
the transferred proceeding or suit. The only limitation is that the Court to which the suit is transferred must be a
Principal Civil Court of original jurisdiction within the meaning of section 3(2). In the context of the extraordinary
jurisdiction of the High Court under section 8, the words “District Judge” in section 3(2) would mean what the
definition expresses viz., any Judge which was a Principal Civil Court of original jurisdiction. The territorial limit in
sub-section (3) is, as the sub-section itself denotes, only for the purpose of determining the ordinary jurisdiction for
initiating proceedings under the Act.

If the power of the High Court is to be construed as being limited to transfers within the territorial limitations of a
District Judge, it would defeat the object and express purpose of section 8 and render it virtually nugatory. The
power to transfer a proceeding within the territorial limits of a District is exercisable even by a District Judge under
section 24, CPC.1

There is no such provision in the Parsi Marriage and Divorce Act, 1936.

The provision contained in the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 lays down that when
both the parties present separate petitions in the same court, these should be joined and heard together. There
may be another situation. Parties may present petitions in different courts. In such a situation, the statutes provide
that the trial will be held at the court where the first petition was presented and the second court will have the power
to transfer the case to the former court.

Section 24 of the Code of Civil Procedure, 1908 contains a comprehensive provision containing court’s general
power of transfer and withdrawal of cases. Section 22 of the Code relates to court’s power of transferring suits
which may be instituted in more than one court. Section 22 runs:

Where a suit may be instituted in any of two or more courts and is instituted in one of such courts, any defendant after
notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before
such settlement apply to have the suit transferred to another court, and court to which such application is made, after
considering the objections of the other parties (if any), shall determine in which of the several courts having jurisdiction the
suit shall proceed.

The provisions of section 21A of the Hindu Marriage Act, 1955 and section 40A of thespecial Marriage Act, 1954
have overriding effect over the provisions of the Code of Civil Procedure, 1908. In Priyavari Mehta v. Priyanath
Mehta1, the Bombay High Court said that the matrimonial court cannot now exercise the power outside section 21A
for consolidating the petitions. It has now no power under the Code of Civil Procedure, 1908. Similarly, in Ramesh
Kanta v. Ashok Kumar2, the wife moved an application under section 24 of the Code of Civil Procedure for transfer
of an application for restitution of conjugal rights filed by her husband subsequent to her petition filed for divorce to
the court where her divorce petition was pending. The Punjab and Haryana High Court expressed the view that
section 21A of the Hindu Marriage Act, 1955 supersedes section 24 of the Code and since in restitution petition is
not covered by section 21A, the court has no power to transfer the petition3. In K. Pappamal v. S. Bhagavathy
Appan,4the wife filed a petition for restitution of conjugal rights before the sub-judge, Palghat, on June 28, and the
husband for divorce on the ground of wife’s insanity before the sub-judge, Trivandrum, on September 15, 1983. The
husband’s petition was obviously later. The wife pleaded that she had no means to go to Trivandrum to defend
herself and the husband pleaded that the Palghat Court had no jurisdiction. On balance of convenience, the High
Court held that the husband’s petition should be transferred to Palghat. It appears that court decided the case under
section 24, of the Code of Civil Procedure, 1908 and overlooked the provisions of section 21A of the Hindu
Marriage Act, 1955, which categorically lays down that it is the later petition which should be transferred to the court
where earlier petition has been made, and there is no question of balance of convenience. It is submitted that
recourse to section 24 of the Code of Civil Procedure, 1908 was not necessary. In Ved Prakash v. Sema,5 the
Punjab and Haryana High Court expressed the view that section 21A is not exhaustive, the court could take
recourse to the Code of Civil Procedure. It is submitted that the High Court should have this power under its
inherent powers in the interest of justice6.

Service of Interrogatories
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Order XI, Code of Civil Procedure, 1908 deals with “Discovery and Inspection”. Order XI of rule 1 deals with
“discovery by interrogatories”. The purpose of the interrogatories is to save expense and to expedite the
proceedings. This enables a party to obtain from his opponent information as to the facts material to the questions
in dispute between them and to obtain admission of any facts which he has to prove on any issue between the
parties. The principle is that the court would allow the service of interrogatories whenever answers to them will
serve either to maintain the case of the party administering them or to destroy the case of the opposite party. In
Ganga Devi v. Krishna Prasad Sharma,1 the wife sought to serve interrogatories on the husband with a view to
ascertaining his income. She had applied for interim maintenance. The Bombay High Court held that she could do
so.

Cross Petitions or Counter-Claim

Section 23A of the Hindu Marriage Act, 1955 and section 35 of thespecial Marriage Act, 1954 contain provision
relating to counter-claim.

Section 23A of the Hindu Marriage Act, 1955 having the marginal title of “Relief for respondent in divorce and other
proceedings,” runs:

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

Section 35 of the Special Marriage Act, 1954 having the marginal title “Relief for respondent in divorce and other
proceedings,” runs:

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

The provision under both the statutes are identical. These sections lay down that a respondent may not merely
oppose a petition by denying the averments made in the petition, but he may also oppose the relief sought on the
ground of the petitioner’s adultery, cruelty, or desertion, and if the same is proved, the court may give to the
respondent any relief under this Act to which he or she would have been entitled if he or she had presented a
petition seeking such relief on that ground. The Parsi Marriage and Divorce Act, 1936 also lays down that in any
matrimonial suit, the respondent may make counter-claim for any relief to which he or she may be entitled to under
the Act1. There is no such provision under the Indian Divorce Act, 1869. The Code of Civil Procedure, 1908 also
contain a provision for the counter-claim2.

No counter-claim for divorce by husband under section 23A of the Hindu Marriage Act, 1955 can be made in a
wife’s maintenance petition under section 18 of the Hindu Adoption and Maintenance Act, 19563.

Stay of Proceedings
In civil proceedings, sometimes stay of proceedings becomes necessary. The necessity of stay of proceedings may
arise in matrimonial proceedings also. The matrimonial statutes and the High Court rules framed thereunder do not
contain any provision for stay of proceedings. But the divorce court has the power to stay proceedings under
section 10 read with Order 41, rules 5 and 6 as well as under inherent jurisdiction under section 151 of the Code of
Civil Procedure, 1908. It has been seen earlier that the court has exercised this power to stay the proceedings
where a party fails or refuses to pay interim maintenance4.

Proceeding do not abate on the death of a party: There is a controversy among the High Courts whether
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proceedings abate on the death of a spouse5. In Vadalasetti Samrajyamma v. Vadalasetti Nagamma,6 after a
review of case Andhra Pradesh High Court held that proceedings do not abate.

Hearing in Camera
Confidentiality of proceedings sometimes is desirable. This is much more so in regard to matrimonial proceedings.
All the matrimonial statutes provides that at the desire of the parties, the proceedings may be heard in camera.
Section 22 of the Hindu Marriage Act, 1955 provides for this. Section 22 runs:
(1) Every proceeding under this Act shall be conduced in camera and it shall not be lawful for any person to
print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the
Supreme Court printed or published with previous permission of the Court.7
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1)
he shall be punishable with fine which may extend to one thousand rupees.

Similar provision is contained in section 33 of the Special Marriage Act, 1954. Section 33 runs:
(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to
print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the
Supreme Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1)
he shall be punishable with fine which may extend to one thousand rupees.

Almost an identical provision has been inserted in the Parsi Marriage and Divorce Act, 1936 by the amending Act of
1988.

Similar provision has been enacted in the Indian Divorce Act, 1869 though the provision is not as comprehensive as
under thehindu Marriage Act, 1955. Section 53 of the Indian Divorce Act, 1869 lays down:

The whole or any part of any proceeding under this Act be heard, if the court thinks fit, within closed doors.

Under the Act discretion rests with the court, while under the other three statutes it is mandatory.

Day-to-day Hearing
It is a known fact that in the courts matrimonial proceeding run with the same leisurely pace as other civil
proceedings and matrimonial petitions and suits take as many as four to five years in their disposal. In view of this
the Marriage Laws (Amendment) Act, 1976 inserted a provision for speedy disposal of cases. Section 21B of the
Hindu Marriage Act, 1955 runs:
(1) The trial of a petition under this Act shall, so far as it is practicable consistently with the interest of justice in
respect of the trial, be continued from day-to-day until its conclusion unless the court finds the adjournment
of the trial beyond the following day to be necessary for reasons to be recorded.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to
conclude the trial within six months from the date of service of notice of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to
conclude the hearing within three months from the date of service of notice of appeal on the respondent.

Section 40B of the Special Marriage Act, 1954 contains a similar provision which has identical language.

But still matrimonial petitions in most courts take several years for their final disposal. Case of Ramni v. Balaji
shows how this provision is flouted. In this case the petition took 12 years for its disposal.

Setting Aside an ex parteDecree

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There is some controversy among the High Courts on the question whether an appeal has to be filed to get an ex
parte decree set aside or whether it can be set aside under Order IX, rule 13 of the Code of Civil Procedure, 1908.
In Anjan Kumar Kataki v. Minakshi Sarma,1 the Court has held that only an appeal lies against an ex parte decree;
it cannot be set aside under Order IX, rule 13 of the Code. On the other hand, in Jang Bahadur Syal v. Mukta Syal,1
the Delhi High Court has held that an application under Order IX, rule 13 of Code could be made for getting set
aside an ex parte decree. The Court was of the view that those provisions of the Code which have not been
expressly excluded are applicable to proceedings under the Hindu Marriage Act, 1955. If husband had produced
uncontroverted evidence, and if, wife remains ex parte, a decree dissolving the marriage could be passed2.

The High Court of Andhra Pradesh allowed setting aside of ex parte decree under Order IX, rule 13 and condoned
delay of 153 days. The Court also held that remarriage of husband is no ground not to condone delay. 3
PART II JURISDICTION

Jurisdiction: The Court to which Petition is to be Filed

Under the head jurisdiction, two matters would be discussed:
(i) in which court should the petition or suit in a matrimonial cause be filed, and
(ii) at which place should the petition or suit in a matrimonial cause be filed.

The Court
Under the Hindu Marriage Act, 19554 and the Special Marriage Act, 19545 a petition in any matrimonial cause lies in
the district court. The district court is defined in identical language under both the statutes6. It is defined thus:

“district court” means, in any area for which there is a city civil court, that court, and in any other area, the principal civil
court of original jurisdiction, and includes any other civil court which may be specified by the State Government by
notification in the Official Gazette as having jurisdiction in respect of the matter dealt with in this Act.

The district court thus will mean:

(a) city civil court, where it exists, and where the city civil court exists, the High Court, even though a principal
court of original jurisdiction, will have no jurisdiction,
(b) where there is no city civil court, (i) original side of the High Court in the Presidency Towns, or (ii) the court
of the District Judge at other places, and
(c) any other civil court which may be specified by the State Government by notification in the Official Gazette.
Once a civil court is invested with the jurisdiction of the District Judge, a petition in a matrimonial cause
may be directly filed to it1.

Pursuant to power conferred on the State Governments under section 3(b) of the Hindu Marriage Act, 1955 several
states have invested with jurisdiction the Sub-Judge I class or Senior Sub-Judge in matrimonial matters2.

Section 4 of the Indian Divorce Act, 1890 confers jurisdiction on the High Courts and the district courts. The section
runs:

“District Court” means, in case of any petition under this Act, the Court of District Judge within the local limits of whose
ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or has resided together.

The jurisdiction now exercised by the High Court in respect of divorce a mensa et thoro, and in all other causes,
suits and matters matrimonial shall be exercised by such courts, and by the district court subject to the provisions in
this Act contained.
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Chapter XIII PROCEDURE AND JURISDICTION

Section 3(2) defines “District Judge” as meaning “a judge of a principal civil court of original jurisdiction, however
designated.” The “court” means “the High Court or the district court” as the case may be3.

The Indian Divorce Act, 1869 contemplates the suits in matrimonial causes and therefore a suit for a declaration
that a marriage is null and void does not lie under the Act4. Such a suit is maintainable under the Specific Relief Act,
1963.

A decree of dissolution of marriage5, and a decree of nullity passed by the District judge requires confirmation by
the High Court.

The peculiar feature of the Indian Divorce Act, 1869 is that rules and principles of English matrimonial law, have
been specifically made part of the Act. Section 7 lays down:

Subject to the provisions contained in this Act, the High Courts and district courts shall, in all suits and proceedings
hereunder, act and give relief on principles and rules which, in the opinion of the said courts, are as nearly as may be
conformable to the principles and rules on which the Court of Divorce and Matrimonial Causes in England, the time being
acts and gives relief:

Provided that nothing in this section shall deprive the said courts of jurisdiction in a case where parties to a marriage
professed the Christian religion at the time of the occurrence of the facts on which the claim of relief is found.

Thus, section 7 clearly lays down that in construing the provisions of the Indian Divorce Act recourse may be taken
to the principles and rules followed by the English Courts1. The provision has been preserved by the Adaptation of
Laws Order, 1950.

The provision should not surprise anyone. The Indian courts in most matrimonial causes and matters even now
follow English precedents. Section 7 specifically lays down that the changing English rules and principles should be
applied by the Indian courts while interpreting (or giving progressive interpretation) the Indian Divorce Act, 1869,
though, of course, the English Matrimonial Causes Acts (from 1958 to 1973) and other allied statutes have not
thereby become part of the Indian Divorce Act, 18692and the Indian courts cannot grant divorce or judicial
separation on the grounds which are not specified in the Indian Divorce Act, 18693. The Indian courts have thus
limited the scope of section 7 in its application. The courts have held that the English rules and principles can be
applied only as to matters of machinery, questions of procedure and on quantum of proof4. The courts have also
given the same meaning to adultery as has been given under the English law5. Similarly, since the Indian Christian
Marriage Act, 1872 and the Indian Divorce Act, 1869 do not spell out the age of consent, the English law rule of
consent has been applied6.

It is submitted that section 7 of the Indian Divorce Act, 1869, in particular, and other Indian matrimonial statutes
generally, present an opportunity to the court to give progressive interpretation to the matrimonial law so that the
law can be brought in consonance with our social needs.

The Parsi Marriage and Divorce Act, 1936 provides for the constitution of special Parsi Matrimonial courts7. The Act
contemplates constitution of two types of courts: (i) Parsi Chief Matrimonial Courts for the Presidency Towns, and
(ii) District Matrimonial Courts.

Objection as to Jurisdiction of Court: Divorce Petition

The divorce petition was not objected to on grounds that it should have been filed in appropriate court in Khurda
District of Orissa. The Court at Cuttack proceeded to decide the case on merit. No prejudice occasioned in failure of
Justice shown to have been caused by adjudication of case by the Judge, Family

Court at Cuttack. It was held that the ground of lack of territorial jurisdiction stood abandoned. Moreover the
appellant himself had chosen to file application for divorce in Family Court Cuttack, hence he could not take
advantage of his own action to urge that said court had no jurisdiction to entertain application as was held by the
Court.1

Parsi Chief Matrimonial Court.—Under section 19 of the Act the Parsi Chief Matrimonial Courts are constituted at
the Presidency Towns of Calcutta, Madras and Bombay. The local limits of the jurisdiction of such a court shall be
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Chapter XIII PROCEDURE AND JURISDICTION

co-terminous with the local limits of the ordinary original civil jurisdiction of the High Court concerned. The Chief
Justice of the High Court or such other judge of the same court as the Chief Justice shall from time to time appoint,
shall be the judge of such matrimonial court, and, in the trial of cases under the Act, he shall be aided by five
delegates.

But in the following matters aid of delegates is not necessary:

(a) interlocutory applications and proceedings;
(b) alimony and maintenance, both permanent as well as pendente lite;
(c) custody, maintenance and education of children; and
(d) all matters and proceedings other than the regular hearing of cases.

District Courts.—Apart from the Presidency towns, the Act contemplates constitution of the Parsi District
Matrimonial Courts. The State Governments have power to include within the jurisdiction of the Parsi District Court
any number of districts under its territory2. Any district which the State Governments, on account of the fewness of
its Parsi inhabitants, shall deem it inexpedient to include within the jurisdiction of any District Matrimonial Court,
shall be included within the jurisdiction of the Parsi Chief Matrimonial Court for the territories under such State
Government where there is such a court3.

Delegates.—The Act stipulates for the appointment of delegates to various Parsi Matrimonial Courts. Each State
Government in the Presidency towns and districts respectively, is required to appoint persons to be delegates to aid
in the adjudication of cases arising under this Act, after giving the local Parsis an opportunity of expressing their
opinion in such manner as the respective courts may think fit4. The delegates must be Parsi, and their number
within the local limits of the jurisdiction of the High Court should not be more than thirty, and in the districts not more
than twenty. The names of the delegates should be notified in the official gazette5. The appointment of delegates is
for a term of ten years, but the same persons are eligible for reappointment for the like term or terms. A person will
cease to be a delegate on the completion of his term of office, or on resignation from his office, or his refusal to act
or becoming incapable or unfit to act or ceasing to be Parsi, or being convicted of an offence under the Indian Penal
Code (45 of 1860) or under any other penal law, or being adjudged insolvent or on death. On the happening of any
of these events the State Government has power to appoint another delegate in his place. A fresh publication of the
name in the Official Gazette will be necessary1.

All delegates appointed under the Act will be deemed to be public servants within the meaning of the Indian Penal
Code (45 of 1860).

The delegates under the Parsi Marriage and Divorce Act, 1936 have the function of assisting the court in the
adjudication of matrimonial suits. The delegates in the individual cases for assisting the court are appointed by the
presiding judge of the court on the principle of rotation from among the delegates2. However, any party to a suit
may, without cause assigned, challenge any two of the delegates attending the court before such delegates are
selected and no delegate so challenged shall be selected.

A delegate under the Parsi Marriage and Divorce Act, 1936 is in the position of a juryman and cannot be challenged
in appeal3. The number of delegates at trial of a matrimonial suit is to be fixed by the court (but their number cannot
be less than seven) and a trial which is attended throughout the proceedings by at least five delegates will be valid
and will not be vitiated if during any part of the proceedings other delegates are absent.

Casual absence of a delegate.—Where some delegates attend the matrimonial proceedings throughout, the trial
will not be vitiated by reason of the absence of during any part thereof other delegates. Section 44, which provides
for the validity of trial, runs:

Notwithstanding anything contained in section 19 or section 20, where in the case of a trial in a Parsi Matrimonial Court not
less than three delegates have attended throughout the proceedings, the trial shall not be invalid by reason of the absence
during any part thereof the other delegates.

Filing of petition in different court for a same relief is abuse of process of law. In this case petition was filed under
section 12 in a court of competent jurisdiction, then simultaneously another petition was filed under section 13 in
family court.4
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Chapter XIII PROCEDURE AND JURISDICTION

Jurisdiction: Forum: Place where Petition is to be Filed

The jurisdictional rules are laid down in the Indian matrimonial statutes and, therefore, jurisdictional rules laid down
in the Code of Civil Procedure, 1908 stand superseded. It is a very interesting and practical question: where no
Indian court has jurisdiction to entertain a matrimonial petition under a matrimonial statute, can recourse be made to
the provisions of the Code? This question came before the court in Hariram Dhalumal Karamchandani v.
Jasoti.5Being married at Karachi, the parties got separated from each other on the wake of India’s partition. The
husband came to Delhi and wife went to Nagpur. They did not reside together on coming to India. They had resided
together in Karachi before partition. Thus no Indian court had jurisdiction to entertain a matrimonial petition under
the Hindu Marriage Act, 1955 or thespecial Marriage Act, 1954. The court took recourse to the Code of Civil
Procedure, 1908 and said the court would have jurisdiction where the respondent resided. Section 20 of the Code
was applied.

Under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 jurisdictional rules in all matrimonial
causes, are substantially the same with differences in one respect. Under the Indian Divorce Act, 1869 and the
Parsi Marriage and Divorce Act, 1936 some jurisdictional rules are common while others are different.

Hindu Marriage Act, 1955

Section 19 of the Act containing jurisdictional rules runs:

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil
jurisdiction—
(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of prosecution of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that
time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period
of seven years or more by those persons who would naturally have heard of him if he were alive.

Under amended section 19 of the Hindu Marriage Act, 1955, the divorce petition can be filed by wife at the place
where she is residing on date of presentation of petition. The said provision is prospective and not retrospective.
The High Court cannot, therefore, create jurisdiction in a court which has no jurisdiction on date of initiation of
proceedings.1

Special Marriage Act, 1954

Section 31(1) of the Act containing jurisdictional rules run:
(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of
whose original civil jurisdiction—
(i) the marriage was solemnized; or
(ii) the respondent, at the time of the presentation of the petition, resides; or
(iii) the parties to the marriage last resided together; or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent
is at that time residing outside the territories to which this Act extends, or has not been heard of as
being alive for a period of seven years by those who would naturally have heard of him if he were alive.
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Chapter XIII PROCEDURE AND JURISDICTION

These rules are identical with the rules under the Hindu Marriage Act, 1955. An additional jurisdictional rule is laid
down in sub-section (2) of section 31 which runs as under:

(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of
this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or
for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years
immediately proceeding the presentation of the petition and the husband is not resident in the said territories.

This rule applies only to nullity and divorce petitions.

Indian Divorce Act, 1869

Sub-section (3) of section 3 of the Act containing jurisdictional rules runs:

(3) “District court” means, in the case of any petition under this Act, the court of the district Judge within the local limits 1[or
of whose ordinary jurisdiction under this Act the marriage was solemnized or] the husband and wife reside or last resided
together.

Thus under the Indian Divorce Act, 1869 a petition in a matrimonial cause may be presented to the district court or
the High Court within the local limits of whose ordinary jurisdiction—
(a) the husband and wife reside, or
(b) husband and wife last resided together.

In addition to these jurisdictional rules, compliance with the following is also essential:—
(i) one of the parties to the marriage must be Christian (both parties need not be Christians)2,
(ii) a petition for divorce is maintainable only if both the parties are domiciled in India,
(iii) a petition for nullity can be made only when the marriage has been solemnized in India and the petitioner is
resident in India at the time of presentation of the petition3,
(iv) a petition for restitution of conjugal rights or judicial separation can be presented if the petitioner is residing
in India at the time of the presentation of the petition4.

Parsi Marriage and Divorce Act, 1936

Section 29 of the Act dealing with jurisdictional rules runs:

(1) All suits instituted under this Act shall be brought in the court within the limits of whose jurisdiction the defendant
resides at the time of the institution of the suit, or where the marriage under the Act was solemnized.

(2) When the defendant shall at such time have left the territories to which this Act extends such suit shall be brought
in the court at the place where the plaintiff and the defendant last resided together.

(3) In any case, whether the defendant resides in the territories to which this Act extends or not, such suit may be
brought in the court at the place where plaintiff resides or at the place where the plaintiff and the defendant last
resided together, if such court, after recording its reasons in writing, grants to do so.

Thus under the Act, the Parsi Matrimonial Court has jurisdiction in the following cases:—
(i) with the limits of whose jurisdiction, the defendant resides at the time of the institution of the suit, or
(ii) within the limit of whose jurisdiction marriage was solemnized,
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(iii) in the case where the defendant has at the time of the presentation of the petition left the territories to
which the Parsi Marriage and Divorce Act extends, such suit may be brought in the court at the place
where the plaintiff and the defendant last resided together, or
(iv) in any case, whether the defendant resides in the territory to which this Act extends or not, such suit may
be brought in the court at the place where the plaintiff resides or at the place where the plaintiff and the
defendant last resided together, if such court after recording its reasons in writing grants leave to do so.

On the review of the provisions of all the four statutes, the following position emerges:—
A. Last residence of the parties together give the court jurisdiction under all the four statutes. But under the
Parsi Marriage and Divorce Act, 1936 this will confer jurisdiction on the court only if the defendant had left
the jurisdiction at the time of the presentation of the suit [Section 29(2)]. On the basis of last residence of
the parties the court will have jurisdiction (even where the defendant has not left India) if the court after
recording its reason in writing grants leave to do so [Clause (3) of section 29].
B. The place where husband and wife are residing (not necessarily together). This give jurisdiction to the
court under Indian Divorce Act, 1869.
C. The place where respondent is residing. This give jurisdiction to the court under the Hindu Marriage Act,
1955 and Indian Divorce Act, 1869.
D. The place where marriage was solemnized. This confers jurisdiction on the court under Hindu Marriage
Act, 1955,Special Marriage Act, 1954 and Parsi Marriage and Divorce Act, 1936.
E. The place where the petitioner is residing. This gives jurisdiction to the court under the Hindu Marriage Act,
1955 and thespecial Marriage Act, 1954 if at that time of the presentation of the petition the respondent is
residing outside India and has not been heard of as being alive for a period of seven years or more by
those persons who would have heard of him if he was alive. Under the Parsi Marriage and Divorce Act,
1936 plaintiff’s residence also confers jurisdiction on the court (irrespective of the fact whether defendant
resides or does not reside in the territories to which the Act extends) if the court after recording its reason
in writing grants leave to do so.

When there is a dispute as to where parties last resided together, dismissal of petition by Family Court on the
ground that it has no jurisdiction is improper. It has to frame issue on that point and give opportunity to party to
adduce evidence.1

Other requirements under the statutes have already been discussed. Now the meaning of the following is being
discussed:—
(a) The place where marriage was solemnized: lex loci celebrationis, and
(b) Residence.

Jurisdiction.—Residence and lex loci celebrationis.—These are mixed question of law and facts and cannot
therefore be decided as a preliminary issue2.

Place where marriage was solemnized.—Under the statutes the district court within whose jurisdiction essential
ceremonies have been solemnized will have jurisdiction. Among the Hindus such ceremonies are usually performed
at the place where parents or guardians of the bride reside, and that seems to be the rationale of conferring
jurisdiction on this basis. However, in our contemporary times marriage are sometimes performed in a temple,
dharmasala, hotel, panchayat bhavan or some other place which is not necessarily the place of residence of the
bride. In such cases the jurisdiction is vested in the court within whose jurisdiction the essential ceremonies of
marriage took place.

Residence.—”Residence” of both parties, residence of the respondent or residence of the petitioner gives the court
jurisdiction to entertain a matrimonial suit or petition in certain circumstance. The key word under all three clauses is
‘residence’. The term “residence” have been variously defined. In all cases, “residence” is a question of fact, and
whether or not a person is residing at a particular place will depend on the facts of each case. The question has
come up before the Indian courts in several cases under the Divorce Act, 1860 which also confers jurisdiction to the
court on the basis of residence. Ordinarily, “residence” means the permanent abode or permanent home or
permanent place where a person live, and does not include a temporary residence3. If a person has a permanent
place where he lives, but goes to another place for a temporary stay, such as for health reason, for business or for
study, that place cannot be called his ‘residence’. In Janak Dulari v. Narain Dass,1 after marriage the husband and
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the wife lived in Amritsar. After some time the wife left the husband and went to live with her sister at Gurdaspur.
The husband, with a view to persuading his wife to return to matrimonial home went to Gurdaspur and stayed there
for a few days. The Court held that the last time parties resided together was at Amritsar and not at Gurdaspur.
However short a stay may be at matrimonial home, that is enough2. But suppose, parties have not established a
matrimonial home, nor do they have a permanent abode; they are moving from place to place, then which will be
the place which could be said to be the place where they last resided together? For instance, soon after marriage
parties went for honeymoon and stayed first at Simla, then at Nainital and then at Delhi, where some differences
arose and the wife left the husband. Since at none of these places the spouse stayed with an intention of
establishing a matrimonial home, none of these places could be said to be the place where they resided together.
The Indian courts have expressed a view that if the parties have not established a matrimonial home or a
permanent home at any place, then the place where they last stayed together would be placed where they last
resided together3. In Jewanti v. Kishan,4 parties belonged to Almora, but were married in Delhi and resided together
in Delhi for some time. The Supreme Court held that District Judge, Almora, has no jurisdiction to entertain the
nullity petition. Question as to where last resided together is a question of both fact and law and can be resolved by
adducing recording evidence under Order 14, rule 2 of Code of Civil Procedure.5

A petition for nullity under the Indian Divorce Act, 1869 is not maintainable if it is shown that the parties neither
residing nor last resided together within the jurisdiction of the court6.

An interesting question arises: When both the spouses are employed at different places and they have made
working arrangement under which they visit each other on holidays and on leaves and thus live together. They set
up establishment at both the places. Then which will be place where they reside or last resided together? The
question came before the Punjab and Haryana High Court in Pritma Sharma v. Mohinder S. Bhardwaj.7 The court
observed, “Such visits of the wife or the husband cannot be termed as casual or flying. On the other hand, such
visits though be termed as temporary visits by both the spouses come within the meaning of the words “resides”
and “resided”.” In this case before the disruption of marriage, the husband had resided at the wife’s place. The court
held that wife’s place would be deemed to be the place where parties last resided together, and the court at the
wife’s place would have jurisdiction to try the divorce petition. In the complex social conditions of the modern life,
this is a welcome decision1.

In Renu Vij v. Surinder Kumar,2 a new dimension was sought to be given to these terms and it was argued that “last
resided together” should mean that parties should have had marital intercourse during the period they resided
together. The court rightly rejected this extended meaning and added that duration of the residence is also
immaterial. In this case though wife came to reside in the matrimonial home for a short duration, no marital
intercourse took place as wife was suffering from some mental disorder. The court held that place where
matrimonial home to as situated had the jurisdiction.

In Kishori Bari v. Arun Kumar Varma,3 it was held that jurisdiction of the court would be the place where parties last
resided together and not where matrimonial home is situate. Further that section 18, Code of Civil Procedure
cannot be invoked since section 21, Hindu Marriage Act provides the place where petitions is to be presented.

In M.P. Shreevastava v. Veena,4the Punjab and Haryana High Court held that on the petition of a spouse against
whom a decree of restitution of conjugal rights had been passed, the court can record that the petitioner had done
all that was necessary to do so comply with the decree but the other party had thwarted all such attempts. The
purpose of obtaining such an order is to prevent the other party from filing a petition for divorce under section
13(1A) of the Hindu Marriage Act, 1955 for divorce on the ground of non-resumption of cohabitation after the
passing of the decree for a period of one year. The same question came before the court in Mujhail Singh v. Jagir
Kaur,5 where the wife sought such an order. The husband had controverted the contention of the wife. However, the
trial court passed the order without examining the parties and recording any evidence. The High Court accepted
husband’s revision petition and remanded the case with the direction that the court should decide the petition after
recording the evidence of the parties6.

Residence is a mixed question of fact and law7.

Shashi Leekha v. Sheila Shashi Leekha,1 is a peculiar case. The marriage was solemnized in the State of Jammu &
Kashmir, husband domiciled in this State. Wife on separation lived in Bombay. Both parties Hindu by religion. It was
held mere fact that marriage was solemnized in State of Jammu & Kashmir is not a decisive factor to decide
jurisdiction of court. No express bar in the State Act, 1980 & Hindu Marriage Act, 1955 for performing marriage in
the State of Jammu & Kashmir before court of competent jurisdiction outside State of Jammu & Kashmir. Parties
can file petition for dissolution of marriage either before the court in State of Jammu & Kashmir subject to fulfillment
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of section 21 of the State Act (1980) or before court to which Central Act, 1955 extends upon fulfillment of section
19 of Hindu Marriage Act. Both these options co-exist.

Evidence
In matrimonial proceedings, the provisions of the Indian Evidence Act, 1872 apply. It has already been stated in
Chapter VII of this work that burden of proof to establish a ground lies on the petitioner.

The matrimonial statutes contain some supplementary provisions. Section 21C of the Hindu Marriage Act, 1955 and
section 40C of thespecial Marriage Act, 1954 deal with an aspect of documentary evidence. Section 21C of the
Hindu Marriage Act, 1955 runs:

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in any proceeding at the trial
of a petition under this Act on the ground that it is not duly stamped or registered.

Section 40C of the Special Marriage Act, 1954 is in identical language.

The Indian Divorce Act, 1869 contains two provision of evidence in its sections 51 and 52. Section 51 of the Act
runs:

The witness in all proceedings before the court, where their attendance can be had, shall be examined orally, and any party
may offer himself or herself as a witness, and shall be examined, and may be cross-examined, and re-examined, like any
other, witness:

Provided that the parties shall be at liberty to verify their respective cause in whole or in part by affidavit, but so that the
deponent in every such affidavit shall, on the application of the opposite party, or by direction of the court, be subject to be
cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally as
aforesaid by or on behalf of the party by whom such affidavit was filed.

Section 52 of the Act runs:

On any petition presented 2[by a husband or a wife, praying that his or her marriage may be dissolved by reason of his wife
or her husband, as the case may be, having been guilty of adultery, cruelty or desertion], the husband and wife respectively
shall be competent and compellable to give evidence of or relating to such cruelty or desertion.

Since under the Parsi Marriage and Divorce Act, 1936 trial of every matrimonial suit is held with the assistance of
delegates, the decision on all questions of facts is by the majority of delegates before whom the case is tried. But in
those cases where delegates are equally divided in their opinion, the decision of the presiding judge on question of
facts shall be final1.

Retrospective decree.—Chander Prakash v. Sudesh Kumar,2 is a very interesting case of social engineering. In
this case the wife left the husband a day after the marriage without the marriage being consummated. She has
been living in different places with different people. She may or may not have been living in adultery but she has not
been living with her parents. An intolerable burden must necessarily have been placed on the appellant in these
circumstances. He has been unable to remarry and his wife has refused to live with him. He has been fighting this
litigation for a number of years. On top of this, the wife has shown by her conduct that she has no desire
whatsoever to continue the marriage. On 8th March, 1966, i.e., very shortly after the marriage, she moved an
application for annulment of marriage on the ground that the marriage had not been consummated and that there
had been no cohabitation between the parties. She also stated that the marriage had been brought about with fraud
and without her consent and she further alleged that she was never interested in the marriage as the husband
belonged to another caste and this fact was concealed from her.

In this case husband also sought a divorce on the ground of wife’s adultery. The husband said that marriage had
not been consummated. The medical evidence was that wife was habitual to sexual intercourse. The trial court
passed a decree in favour of the husband dissolving the marriage. On appeal, the single Judge of the Delhi High
Court converted the decree into that of judicial separation, as he felt that living in adultery was not proved but wife
was clearly in desertion (at that time adultery and desertion were grounds of judicial separation, and living in
adultery was ground for divorce). On letters patent appeal, the Division Bench agreed with the single Judge but was
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Chapter XIII PROCEDURE AND JURISDICTION

unable to hold that the wife was living in adultery. The Court applying the maxim: an act of no court shall prejudice
(actus curiae nemi-nem gravabit) said the husband could have obtained a decree of judicial separation from the
date on or after January 17, 1968. He was prevented from getting the decree on account of error of the Court. Since
desertion was proved a decree of judicial separation was granted with effect from October 7, 1969, the date of the
judgment of the single Judge. This meant that after two years he could get a decree of divorce, i.e., only October 7,
1971 and after getting the decree of divorce he could be able to remarry by October 7, 1972 (after one year of the
decree is required under the then section 15 of the Hindu Marriage Act, 1955), the court observed:

The entire conduct of the respondent beginning from 17th January, 1966 when she left him one day after the marriage and
went to live in some unknown place, her subsequent stay with her cousin... during which period she was seen with various
persons in public places such as Karol Bagh and Connaught Place and also her subsequent conduct in withdrawing the
annulment petition and making complaints against her husband and applications to the Police—all lead to the inference that
great mental, moral and psychological cruelty must necessarily have resulted to the appellant. The very fact that his wife
was living in some unknown places and being seen in the company of others and was refusing to live with him for no fault
of his were enough to amount to cruelty to the appellant.

The Division Bench found the wife guilty of cruelty. Applying Order VII, rule 7 of the Code of Civil Procedure, 1908
the Court said:

...it appears that another relief may be given by the Court to the same extent as if it had been asked for. The relief of judicial
separation in the present case is a lesser relief than the relief of divorce and therefore, can be granted when divorce was
claimed in the original application. There is, of course, no alternative prayer for judicial separation but as the facts in the
present case entitle the appellant to judicial separation, such as relief can be granted by applying the provisions of Order
VII, rule 7 of the Code of Civil Procedure.

In the result husband was granted a decree of divorce1.

After the amendment of 1976, the court has power to grant alternative relief under section 13A, Hindu Marriage Act,
1955.

Enforcement of decrees and orders.—A judgment pronounced by a court of competent jurisdiction in a

matrimonial cause determines the status of parties and is a judgment in rem. Section 28A of the Hindu Marriage
Act, 1955 and section 39A of thespecial Marriage Act, 1954 lay down that all decrees and orders made by the court
in any proceedings under the statutes are enforceable in like manner as the decrees and orders made in the
exercise of the original civil jurisdiction are enforceable. Similar provisions exist under the Indian Divorce Act, 1869
and the Parsi Marriage and Divorce Act, 19362. While under the former the provision is almost the same as under
the Hindu Marriage Act, 1955 and thespecial Marriage Act, 1954 the provision under the Parsi Marriage and
Divorce Act, 1936 is worded in reference to the Code of Civil Procedure, 1908. It lays down that “the provisions of
the Code of Civil Procedure, 1908, in so far the same may be applicable, will apply to proceedings in execution and
orders subsequent to decree”.

Appeals
Before the amendment of section 28 of the Hindu Marriage Act, 1955 and section 39 of thespecial Marriage Act,
1954 by the Marriage Laws (Amendment) Act, 1976, there was a controversy among the High Courts as to whether
an appeal lies against an interim order. Both the amended sections now lay down that an appeal may be made
against all decrees and orders except—
(i) against interim orders1, and
(ii) against orders and decrees for cost only2.

All appeals must be made within a period of 90 days from the date of the decree or order.3

Appeals from the orders and decrees of the matrimonial court lie to the court to which appeals ordinarily lie from the
decrees and orders of such courts4. Where a subordinate court is invested with the jurisdiction under a notification
of the State Government, it thereby does not become a district court, and therefore appeals from the orders and
decrees of such court lie to that higher court to which appeals lie from the orders and decrees of such court5. A Full
Bench of Allahabad High Court has expressed the view that an appeal from an order passed under section 24 by a
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Chapter XIII PROCEDURE AND JURISDICTION

civil judge who is the district court within the meaning of the Hindu Marriage Act, will lie to the High Court and not to
the district court6. The Punjab High Court has taken the view that having regard to the Punjab Court Act, an appeal
from the decree of a Subordinate Judge, Class I, in a matrimonial cause lies to the High Court and not to the district
court7.

Under the Indian Divorce Act, 1869 no appeal lies from a decree of District Judge for dissolution of marriage or for
nullity of marriage; nor from the order of the High Court confirming or refusing to confirm such decree. On the
subject of cost also no appeal lies8. All other decrees and orders made by the court in any suit or proceeding under
the Act may be appealed from under the law, rules and orders for the time being in force9. Thus an appeal lies from
an order of the court fixing the amount of maintenance or alimony10. Similarly a decree awarding damages to the
petitioner may also be appealed from11.

Under the Parsi Marriage and Divorce Act, 1936, section 47 provides for appeal to High Court. Section 47 runs:

(1) An appeal shall lie to the High Court from—

(2) the decision of any court established under this Act, whether a Chief Matrimonial Court or District Matrimonial
Court, on the ground of the decision being contrary to some law, or usage having the force of law or of a
substantial error or defect in the procedure or investigation of the case which may have produced error or defect
in the decision of the case upon merits, and on no other grounds, and
(3) the granting of leave by any such court under sub-section (3) of section 29:

Provided that such appeal instituted within three calendar months after the decision appealed from have been pronounced.

(2) Every appeal under sub-section (1), shall be heard by a Bench of two Judges of the High Court.

The provision of appeal continues to draw litigation. The controversy relates to the forum of appeal. As has been
seen earlier, most of the High Courts have expressed the view that even when a subordinate court is invested with
the jurisdiction under a notification issued by the State Government, it does not thereby become a district court and
appeal from the decrees and orders of such court will lie to higher court to which appeal lie from such order and
decrees1. This so even when a petition is transferred by the district court to subordinate court under a state statute2.
In Madhavi Madhukar Kulkarni v. Madhukar Ramchandra Kulkarni,3 the Bombay High Court has held that when a
petition is assigned the District Judge to the Assistant Judge the latter being part and parcel of the former, an
appeal from his order and decrees would lie to the High Court. On the other hand, in Ramjibhai Lalbhai Patel v.
Shantaben,4the Gujarat High Court has held that when under the Gujarat High Court Act, 1869, a petition in a
matrimonial cause is decided by the extra Assistant Judge, an appeal from his decree or order will lie to the district
court and not to the High Court. The forum of appeal under the Act is determined on the basis of the valuation and
since the matrimonial petition are not valued, the Gujarat High Court took the view that the appeal will lie to the
District Judge. In the light of similar provision in the Bengal, Agra and Assam Civil Courts Act, 1887, the Orissa High
Court in Baby Sagarika Jena (Rosy) v. Bishnu Charan Jena,5 has held that an appeal against the order passed by
the Sub-Judge under section 26 would lie to the district court and not to the High Court. The judgments of the
Gujarat High Court and the Orissa High Court are based on the provisions of the respective Civil Courts Acts.

After the amendment of section 28 in 1976, it is clear that no appeal lies against interlocutory orders.1Harulal
Dasgupta v. Saudamini Misra,2 lays down that if an appeal has been filed against an interlocutory order, it may be
treated as a revision.

In Kunnarath Yesoda v. Manathanath Narayanan,3the question before the Full Bench was whether an appeal must
strictly be filed within a period of 30 days or whether in computing the period of 30 days the time lost in obtaining
the copy of decree will be excluded. The problem arose because under section 15 of the Hindu Marriage Act, 1955
any person whose marriage has been dissolved can remarry after the time for appealing has expired. In the instant
case the husband obtained a decree of dissolution of marriage on January 25, 1980. The wife received the copy on
March 23, 1980 and filed an appeal on April 4, 1980. The appeal was obviously filed beyond 30 days from the date
of decree if time taken to obtain a certified copy was not deducted. In case it was deducted, the appeal was within
time. The husband remarried on April 5, 1980 and a child was born. In case the wife’s appeal succeeded, the latter
marriage would become null and void. Disregarding this aspect of the matter and following Kuttimalu v.
Subramanian,4Chander Dev v. Rani Bali,5 and A. v. B.,6a case under the Indian Divorce Act, 1869, the court took
the view that the time taken in obtaining a copy of the decree should be excluded while computing the period of
limitation for filing an appeal from a decree in a matrimonial cause with a view to avoiding situations like these, sub-
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section (4) of section 23 of thehindu Marriage Act, 1955 and sub-section (4) of section 34 of thespecial Marriage
Act, 1954 lay down that in every case where a marriage is dissolved by a decree of divorce, the court passing the
decree shall give a copy thereof free to cost of each of the parties.

The Gauhati High Court full Bench has observed that period of limitation to file appeal starts from the date of
judgment and not from the date of decree.7

In Krishna Khetarpal v. Satish Lal,8the Punjab and Haryana High Court rightly summed up the present petition thus:
A right of appeal is creature of the statute. It is a substantive right and not part of procedure. Section 28(1) of the
Hindu Marriage Act, 1955 provides a right of appeal. All original decrees made by the court under the Act are
appealable. These decrees may be consent decrees or otherwise. Another significant feature in the Act is the
provision of section 13B, whereunder divorce by mutual consent can be obtained. Decree of divorce by mutual
consent is also appealable under section 28 of the Act. So the scheme of the Act is averse to passing of consent
decrees (considerations under section 23 apart) and the appeal against such decree is maintainable by either party
as of right.

Explaining the distinction between section 28 of the Hindu Marriage Act, 1955 and section 96 of the Code of Civil
Procedure, 1908, the Court said that the appeal under section 96 of the Code of Civil Procedure is on a different
footing, for sub-section (3) thereof debars an appeal from a decree passed by the court with the consent of the
parties. The bar to an appeal against consent decree is based on the broad principle of estoppel. It presupposes
that the parties to an action can, expressly or by implication, waive or forgo their right of appeal, by any lawful
agreement or compromise or even by conduct.

Remarriage during Pendency of Appeals

In Veena Rani v. Romesh Kumar,1 the Punjab and Haryana High Court held that if one of the parties to marriage
marry during the pendency of appeal, the appeal does not become infructuous rather it is “willful disobedience of
other process of law” and “a civil contempt”.2

Appeals and Limitation Act

The question whether the Limitation Act, 1963 applies to appeals under the matrimonial statutes has come in
several cases. All these cases have been reviewed recently in Sipra Dey v. Ajit Kumar Dey.3The Court said that the
provisions of the Limitation Act, 1963 would apply to matrimonial appeal under section 28 of thehindu Marriage Act,
1955 not with standing section 29(3) of the Limitation Act, 1963. The words “other proceeding” in the expression
“suit” or “other proceeding” in section 29(3) of the Limitation Act, 1963 would mean original proceeding in the nature
of suits and would not include appeals and therefore the provisions of the Limitation Act unless expressly excluded,
would apply to matrimonial appeals. The Court added that even though lexically, logically and in common as well as
legal parlance, the expression “proceeding” includes an appeal, an application and even a suit, there are good and
weighty reasons to apply the rule of noscitur a sociis to the word “proceeding” in section 29(3) of the Limitation Act,
1963 and to construe the same to mean proceeding in the nature of suit, that is, original proceeding and not to
include appeal. As the State and the society are also vitally interested in the finality of all litigations including
criminal or matrimonial litigation—interest re-publicae ut sit finis litium—the Limitation Act of 1908 clearly provided
for periods of limitation for criminal appeals in various articles, and section 29(3) of that Act of 1908 excluded from
its operation only the suits under the Indian Divorce Act, 1869(that being then the only statute providing for
matrimonial reliefs), but not the appeals. A survey of the provisions of the Limitation Act, 1963 would also
demonstrate that whenever provisions have been made for appeals, the Legislature has expressly used the
expression appeal, and that being the general frame of the Act, if the Legislature intended to make the provisions of
section 29(3) applicable to appeals also, it would have clearly said so in express words. The preceding sub-section
(2) of section 29 has also used the expression suit, appeal and application instead of the expression proceeding as
that sub-section was clearly intended to apply to appeal also. To construe the word “proceeding” in section 29(3) to
include appeal would be to overthrow all the reasonable provisions in respect of appeals, while to construe the
same as to exclude appeal and to mean only original proceeding in the nature of a suit would be to make all these
reasonable provisions available to appeals. The latter construction can easily be arrived at by applying the principle
noscitur a sociis and since where two constructions are possible, that which would be more conducive to reason
and justice is to be preferred, one would adopt that construction. In such a case, good and weighty reasons to
construe the expression “other proceedings” in section 29(3) of the Limitation Act to mean only original proceeding
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in the nature of suits and not to include appeals, cannot be overridden by anything in the long title of the Limitation
Act where the general purposes and objects of the Act have only been sought to be put in some abbreviated form.

Moreover, the court further said, if the expression ‘other proceeding’ in section 29(3) of the Limitation Act of 1963 is
construed to include appeals also, thus making the Limitation Act of 1963 inapplicable to all matrimonial appeals,
that would deprive the appellants in all such appeals from the benefit of all the beneficial and reasonable provisions
of the Act providing for extension and exclusion of periods. There is no provision providing for any special period of
limitation for a matrimonial appeal under the Indian Divorce Act, 1869 and the period is computed according to the
general law as provided in the Limitation Act. That was also the position in respect of matrimonial appeals under
thehindu Marriage Act, 1955 until a special period of limitation was provided in section 28(4) of the Hindu Marriage
Act as amended in 1976. Therefore, to hold that the expression other proceeding in section 29(3) of the Limitation
Act, 1963 includes appeals and the whole of the Act is thus inapplicable to matrimonial appeals, is to hold that there
was also no period of limitation for appeals under the Hindu Marriage Act from 1955 to 1976.

Further, far from there being any express enunciation in section 29(3) indicating its applicability to appeals also,
there is clear indication in the Statements of Objects and Reasons accompanying the Bill to the effect that the
present sub-section (3) of section 29 of the Act of 1963 only “amplifies section 29(3) of the existing (i.e. the earlier)
Act so as to exclude the application of this law to suits under any law dealing with marriage or divorce”, and not to
exclude its application to appeals under any such law.

Temporary Injunction Pending Appeal

Even though Order XXXIX of the Code of Civil Procedure, 1908 does not apply to matrimonial cases, but in a given
case, the court under its inherent jurisdiction can do so if a proper case is made out. Thus, the mental agony, the
social ignominy and the legal wrangle and complication which the second marriage of the husband during the
pendency of the appeal by the wife would cause to her, in case her appeal succeeds, would be sufficient to make
out a case for an interlocutory injunction restraining such marriage during the pendency of the appeal.

Death of a party during the pendency of Appeal.—When an appeal is pending in the appellate court and one of
the parties to the marriage (husband or wife) dies pending appeal, the proceedings abate. The legal representative
cannot pursue the matter1. Under the Indian Divorce Act, 1869 a decree for divorce need confirmation. But if one of
the parties to the marriage dies, the proceedings abate2.

Amendment of appeal petition. Original petition for appeal can be amended, entertained and decree of divorce can
be passed.3 In this case divorce was granted on ground of cruelty. Appeal against it was pending. During this the
parties prayed that their marriage may be dissolved by mutual consent.

Confirmation of Decree of Divorce by the High Court under Indian Divorce

Act, 1869*
A decree of divorce passed by the district court under the Indian Divorce Act, 1869 needs confirmation by the High
Court, under section 174. In Uttar Pradesh this provision has been done away with by the State amendment. (U.P.
Act 30 of 1957). A Full Bench of the Madhya Pradesh High Court in Neena v. John Pormer5 and a Special Bench of
the Calcutta High Court have recommended its deletion as they felt that provision was discriminatory requiring the
Christian couple to unnecessarily wait for confirmation, while, Hindu and Parsi couples need not. But, surprising,
they had not declared the provision null and void being violative of equality guaranteed by the Constitution. A
Special Bench of the Punjab and Haryana High Court confirming an ex parte decree for dissolution of marriage held
that service of summons need not be effected on a husband who remained ex parte and whose address is not
known6.

When damages are awarded against a co-respondent he cannot object to the same in confirmation proceedings.
He should file an appeal against it.

Parsi Law: Conversion does not affect the jurisdiction of the Court.—Even if one of parties ceases to be Parsi
by conversion to another religion, the marriage will continue to be governed by the provisions of the Parsi Marriage
and Divorce Act, 1936. Section 52(2) of the Act runs:
 Page 22 of 27
Chapter XIII PROCEDURE AND JURISDICTION

A Parsi who has contracted a marriage under the Parsi Marriage and Divorce Act, 1865 (15 of 1865), or under this Act,
even though such Parsi may change his or her religion or domicile, so long as his or her wife or husband is alive and so
long as such Parsi has not been lawfully divorced from such wife or husband or such marriage has not lawfully been
declared null and void or dissolved under the decree of a competent court under either of the said acts, shall remain bound
by the provisions of this Act.

Divorce by arbitration.—No matrimonial petition can be decided by arbitration1. Marriage contract cannot be
equated with a commercial contract and therefore a marriage cannot be dissolved by a reference to arbitration1.

Decision by reference to arbitrators. —The matrimonial cause are decided on strict proof. In a matrimonial cause
the decree is in rem. It decides status. Thus a matrimonial cause cannot be decided by reference to arbitration2.

Death of a party pending proceeding: abatement. —There is some controversy among the courts whether
proceeding abate if a party dies during the pendency of proceeding3. In Suresh Bala v. Rajbir Singh4 in an appeal
filed by wife against the divorce decree obtained by the husband, the husband died during the operation of stay. It
was held that since wife was not a divorced woman she was entitled to inherit his property.

Setting aside an ex partedecree after the death of a party.—Divorce proceedings being inter parte, one view
has been that they abate on the death of one of the party. In Yallawwa v. Shantavva,5 the Supreme Court had taken
the view that if during the pendency of proceedings for setting aside an ex parte decree, if the husband dies, the
proceedings survive and husband’s legal representative could be brought on record. This would mean that if the ex
parte decree is set aside, there is no divorce and wife would succeed to her husband. Probably, this impelled the
Supreme Court to take this view. In Surendra Kumar v. Kiran Devi,6 the Rajasthan High Court has held that where
there was an ex parte decree in favour of the husband and he thereafter married. It was held that the wife’s
application for setting aside ex parte decree subsequently was not maintainable.

1 Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083 [LNIND 2007 SC 157]: 2007 AIR SCW 3201: (2007) 2 SCC 564
[LNIND 2007 SC 157]: (2007) 3 SCALE 150 [LNIND 2007 SC 157]: 2007 (2) Supreme 201.
1 AIR 1978 P&H 150 : 79 Punj LR 574: (1978) 1 Punj 9.
2 Section 20(1) of the Hindu Marriage Act, 1955; section 32(1) of thespecial Marriage Act, 1954; last para of section 10
and para 2 of section 47 of the Indian Divorce Act, 1869 and the forms stated in the Schedule. See Ann Sarkar v. Anil
Sarkar, AIR 1989 Gau 44 [LNIND 1988 GAU 23]: (1988) 1 DMC 462: (1988) 2 Hindu LR 147 : 1990 (1) Civ LJ 43 (case
is under the Indian Divorce Act, 1869).
3 Section 45.
1 Section 20(2) of the Hindu Marriage Act, 1955 and section 32(2) of thespecial Marriage Act, 1954. Under other statutes
it is provided under the High Court Rules.
2 Section 20(2) of the Hindu Marriage Act, 1955, section 32(2) of thespecial Marriage Act, 1954 and section 47 of the
Indian Divorce Act, 1869.
3 Take for instance, rule 6 of the Andhra Pradesh High Court Rules under the Hindu Marriage Act, 1955.
4 Saptmi v. Jagdish Chandra, 73 CWN 502; see also, Satish Kumari v. Ranjit Singh, AIR 1997 HP 16 .
5 Umashankar Prasad Singh v. Radha Devi, AIR 1967 Pat 220 .
6 Kaizer Basu v. Mahua Basu, AIR 2014 Cal 180 [LNIND 2014 CAL 2208].
7 Lalit Lazarus, Chhindwara v. Lavina Lazarus, Indore, AIR 1979 MP 70 [LNIND 1978 MP 62]: 1979 MPLJ 184: 1979
Jab LJ 299 : 1979 Mat LR 239, under the Indian Divorce Act, 1869.
8 Order IV, rule 17.
1 AIR 1975 All 94 .
2 AIR 1967 J&K 89 : 1967 Kash LJ 67.
3 See also Edma Satyamma v. Edma Gopala Reddy, AIR 1961 AP 122 [LNIND 1960 AP 45]: (1960) 2 Andh WR 55:
ILR(1960) 2 AP 199, where a divorce petition was allowed to be amended in a similar situation.
4 AIR 1977 Cal 193 [LNIND 1977 CAL 39]: (1977) 4 CHN 312: 1977 HLR 350.
 Page 23 of 27
Chapter XIII PROCEDURE AND JURISDICTION

5 See also Prakashwanti v. P.C. Verma, (1978) HLR 517, where a similar amendment was allowed. Such an amendment
was allowed at the appellate stage in Rameshwar v. Bhagwanti, (1978) HLR 693.
6 (1977) HLR 476.
7 Krishnawanti v. Thakur Das,(1979) MLR 91.
1 Puneet Chander Bhasin v. Sunita, AIR 1990 Del 320 [LNIND 1990 DEL 124]: 1991 (2) Cur LJ (CCR) 280 [LNIND 1990
DEL 124]: 1992 (2) DMC 485 : 1991 (1) Hindu LR 134.
2 AIR 1994 AP 13 [LNIND 1993 AP 383]: 1993 (2) APLJ 274: 1994 Marri LJ 204: 1993 (2) Andh WR 398.
3 See also Yallawwa v. Shantavva, AIR 1997 SC 35 [LNIND 1996 SC 1634]: (1977) 11 SCC 159: 1997 Marri LJ 193.
4 Willan Percy Bowman v. Harriet Dorothy Bowman, AIR 1942 All 223 : 1942 All LJ 355(case is under the Indian Divorce
Act, 1869).See also Bowman v. Bowman, (1949) 2 All ER 127 : 1949 P 353: 65 TLR 461.
5 Kharaiti Lal Sharma v. Pushpa Rani, AIR 1973 P&H 271.
6 Soya v. A.K. Mohanan, AIR 2006 Ker 56 [LNIND 2005 KER 615]: ILR (2005) 4 Ker 691 : 2005 (3) Ker LJ 549: 2006 (1)
Marrilj 413.
7 Lt. Col. Rajiv Shankar v. Soumya Nair, AIR 2014 Kant 167 .
8 Section 11. See Vijayan alias Mathew Vijayakumar v. Bhanusundari, AIR 1995 Mad 166 [LNIND 1994 MAD 615]: 1995
(1) Mad LJ 112; Selvakumar v. Pramila, AIR 1996 Mad 172 [LNIND 1995 MAD 665]: 1996 (2) Civ LJ 133: 1996 (1)
Mad LJ 57: 1996 (1) Mad LW 229 [LNIND 1995 MAD 665].
1 B.D. Charles v. Nora Benjamin, AIR 1979 Raj 156 : 1979 WLN 217: 1979 Raj LW 248 : 1979 Mat LR 394.
2 Section 35, para 2.
3 Ram Chandra v. Man Singh, AIR 1968 SC 954 [LNIND 1967 SC 366]: 1968 ALJ 545: (1968) 2 SCR 572 [LNIND 1967
SC 366].
4 Mathew v. Devassykutty, AIR 1988 Ker 315 [LNIND 1987 KER 483]: (1988) 1 Ker LT 184 [LNIND 1987 KER 483]: ILR
(1988) 2 Ker 156 [LNIND 1987 KER 483].
5 AIR 1988 AP 68 [LNIND 1986 AP 250]: (1987) 2 DMC 385: (1988) 1 Hindu LR 542.
6 Wenmanard Marak v. Poiby Momin, AIR 1988 Gau 50 : (1988) 1 Gua LR 261: (1988) 1 DMC 405 : (1988) 2 Civ LJ 39;
Lal Changmunga v. Lianpari, AIR 1988 Gau 53 : (1988) 1 DMC 433: (1988) 24 Reports 358: (1988) 2 Hindu LR 77; M.
Esthar Rani v. M. Devadanam, AIR 1988 AP 1 [LNIND 1987 AP 273]: (1987) 2 APLJ (HC) 343: (1987) 2 Andh LT 628 :
(1988) 1 Cur CC 658.
1 Romish Praucis v. Violet Francis, AIR 1989 Cal 128 [LNIND 1988 CAL 263]: (1988) 2 HLR 760 (SB); Philip James
Coates v. Agnes Fernandes, AIR 1994 Mad 1 [LNIND 1993 MAD 387]: 1994 (3) Cur CC 371: 1994 (1) Hindu LR 717 :
1995 (20) Marrilj 283 (FB).
2 See Parimilla Rajalingam v. Akuthota Lingayya, AIR 1964 AP 308 [LNIND 1963 AP 221]: (1964) 1 Andh WR 389:
(1964) 1 Andh LT 391.
3 Jaswantrai Jethalal Vaidya v. Vimal, AIR 1963 Guj 152 [LNIND 1962 GUJ 11]: (1963) 4 Guj LR 514: ILR 1963 Guj 650.
1 (1977) HLR 149.
1 Mabel Treeza Pinto v. Francis Pinto, (2005) 7 SCC 761.
1 AIR 1980 Bom 337 [LNIND 1979 BOM 183]: 1980 Mah LJ 269 [LNIND 1979 BOM 183]: 1980 Hindu LR 400.
2 AIR 1977 P&H 273 : ILR (1977) 2 P&H 173: 1978 Hindu LR 583: 1978 Marri LJ 84.
3 See also Gurmail Kaur v. Pritam Singh,(1980) MLR 56: 1979 Hindu LR 86: 1979 Marri LJ 442.
4 AIR 1985 Ker 91 [LNIND 1984 KER 169]: 1984 Ker LT 916 [LNIND 1984 KER 169]: 1984 Ker LJ 750 : (1985) 1 Civ LJ
189.
5 1988 PLH 75.
6 Veena Lodha v. Narendra Mal Lodha, (1977) HLR 262 (Raj).
1 AIR 1967 Ori 19 [LNIND 1964 ORI 90]: 31 Cut LT 294: ILR 1964 Cut 958 [LNIND 1964 ORI 90].
1 Section 37, Parsi Marriage and Divorce Act, 1936.
2 Order VIII, Code of Civil Procedure.
3 Neelam Singh v. Vijaya Narain Singh, AIR 1995 All 214 [LNIND 1995 ALL 66]: 1995 All LJ 1064: 1996 (1) Civ LJ 503.
4 See Chapter XVI.
 Page 24 of 27
Chapter XIII PROCEDURE AND JURISDICTION

5 Vempa Sunanda v. Venipa Venkata Subbarao, AIR 1957 AP 424 [LNIND 1955 AP 120]: ILR 1956 AP 695 : 1956 Andh
LT 734 [LNIND 1955 AP 120]; Saraswathi v. Lakshmi, AIR 1989 Mad 216 [LNIND 1988 MAD 513]: (1989) 1 HLR 575:
(1990) 2 DMC 146; Butterfield v. Butterfield, AIR 1923 Cal 426, held that proceedings abate. Iravva v. Shivappa
Shiddalingappaangadi, AIR 1987 Kant 241 [LNIND 1987 KANT 43]: (1987) 2 DMC 208: (1987) 2 Hindu LR 312;
Thulasi Ammal (minor) by mother & guardian Kannu Ammal v. Gowri Ammal, AIR 1964 Mad 118 [LNIND 1963 MAD
106]: 76 Mad LW 505: ILR(1964) 1 Mad 65: (1964) 1 Mad LJ 228, held that they do not.
6 AIR 1994 AP 13 [LNIND 1993 AP 383]: 1993 (2) APLJ 274: 1994 (1) Hindu LR 115 : 1993 (2) Andh WR 398.
7 R. Sukanya v. R. Sridhar, AIR 2008 Mad 244 [LNIND 2008 MAD 2684]: 2008 (6) Mad LJ 1171.
1 AIR 1985 Gau 44 [LNIND 1984 GAU 15]: (1984) 2 Gau LR 72.
1 AIR 1986 Del 442 : (1986) 1 DMC 115: (1985) 1 HLR 137: 1986 Mad LR 137.
2 Augustine v. Ruth lrine Victoria, AIR 1996 Mad 169 [LNIND 1995 MAD 664]: 1996 Marri LJ 415; see also
Adhhyaatmam Bhaamini v. Jagdish Ambalal Shah, AIR 1997 SC 1180 [LNIND 1997 SC 193]: (1997) 9 SCC 471
[LNIND 1997 SC 193]: 1997 Marri LJ 294, whereit was shown that wife was present all throughout the proceedings. Ex
parte decree could not be set aside.
3 Rachokonda Parvathi v. Rachokonda Venkata Subrahmanyam, AIR 2013 AP 191 [LNIND 2013 AP 1342]: 2013 (2)
DMC 228:2013 Mat LR 567.
4 Section 19.
5 Section 31.
6 Section 3(b) of the Hindu Marriage Act, 1955 and section 2(b) of thespecial Marriage Act, 1954.
1 Krishneshwari Varshney v. Rameshchandra Varshney, AIR 1965 All 228 : 1964 All LJ 1057.
2 See the controversy among the High Court as to whether under the Civil Courts Acts the courtof Additional Judge can
discharge the functions of the District Judge; Janak Dulari v. NarainDass, AIR 1959 Punj 50 : 60 Punj LR 42: ILR 1959
Punj 152 (it cannot); Ajit Kumar Bhunia v. Kanan Bala Deyi, AIR 1960 Cal 565 [LNIND 1960 CAL 1]: 64 CWN 246: ILR
(1961) 1 Cal 177 [LNIND 1960 CAL 1]; Ram Pal v. Ajeet Kaur, AIR 1962J&K 42; Laxmansingh Chandrasingh v.
Kesharbai Laxmansingh, 1965 Jab LJ 710 : AIR 1966 MP 166 [LNIND 1963 MP 17]: 1965 MPLJ 702 [LNIND 1963 MP
17] (it can).
3 Section 3(4).
4 Adelaide Christian Lish v. David Lish, AIR 1927 Pat 301 .
5 Section 17, Para 1 and section 20.
1 B. Iswarayya v. Swarnam Iswarayya, AIR 1931 PC 234 : 58 Ind App 350: 36 Cal WN 1185.
2 Swamindas Josch v. Ednord, AIR 1955 Mad 341 [LNIND 1954 MAD 185]: (1955) Mad 388: 68 MLW 188; Errol v.
Ruby, ILR (1951) 1 Cal 663 ; Ramesh v. Kusum, AIR 1949 Bom 1 : 50 Bom LR 426: ILR 1949 Bom 190; T.M. Bashiam
v. M. Victor, AIR 1970 Mad 12 [LNIND 1969 MAD 31]: 82 Mad LW 422: ILR (1970) 1 Mad 591 (SB).
3 A. George Cornelius v. Elizabeth Dopti Samadanam, AIR 1970 Mad 240 [LNIND 1969 MAD 112]: 83 Mad LW 63:
(1970) 2 Mad LJ 351; Barnard v. Barnard, AIR 1928 Cal 657 : ILR 56 Cal 89; J. Chandrasekharan v. G. Rosaline
Pushpamoni, AIR 1970 Mad 211 [LNIND 1969 MAD 22]: (1969) 2 Mad LJ 607: 83 Mad LW 20.
4 J. Chandrasekharan v. G. Rosaline Pushpamoni, AIR 1970 Mad 211 [LNIND 1969 MAD 22]: (1969) 2 Mad LJ 607: 83
Mad LW 20; Barnard v. Barnard, AIR 1928 Cal 657 : ILR 56 Cal 89.
5 Olga Thelma Gomes v. Mark Gomes, AIR 1959 Cal 451 [LNIND 1959 CAL 21]: 63 CWN 395: ILR (1960) 1 Cal 520
[LNIND 1959 CAL 21].
6 Goodal v. Goodal, AIR 1933 All 135 .
7 Part III of the Act.
1 Manoj Kumar Tripathy v. Mayarani Praharaj, AIR 2010 Ori 131 [LNIND 2010 ORI 20]: 2010 (91) All Ind Cas 814:
2010(109) Cut LT 529.
2 Section 21.
3 Section 22.
4 Section 24(1).
5 Section 24(2).
1 Section 25.
2 Section 27.
 Page 25 of 27
Chapter XIII PROCEDURE AND JURISDICTION

3 Dinbai v. Framorz, AIR 1918 Nag 77 .

4 Manish Goel v. Rohini Goel, AIR 2010 SC 1099 [LNINDORD 2010 SC 251]: 2010 AIR SCW 1277: (2010) 4 SCC 393
[LNINDORD 2010 SC 251].
5 AIR 1963 Bom 176 [LNIND 1962 BOM 35]: 64 Bom LR 712: ILR 1962 Bom 554 [LNIND 1962 BOM 35].
1 Rajesh Makhija v. Mamta alias Shalu, AIR 2006 MP 23 [LNIND 2005 MP 214]: 2006 AIHC 863: 2005 (3) MPLJ 564.
1 Subs. by Act 51 of 2001, sec. 3.
2 Sasivaranaim v. Gunnoboundari, AIR 1954 Mad 1018 [LNIND 1954 MAD 95]: (1954) 2 MLJ 243: 67 MLW 1137.
3 Ishrani v. Victor, AIR 1926 Cal 871 : 53 Cal 282.
4 See Dalal v. Merwanji Pherozshaw, AIR 1930 Bom 385 : (1930) ILR 54 Bom 877: 32 Bom LR 1046 (DB).
1 Naresh Chandra Sati v. Tina Sati, AIR 2012 Uttra 41 : 2012 (3) DMC 212: 2012 (1) Hindu LR 293.
2 Rajshree v. Principal Judge, Family Court, Lucknow, AIR 1994 Raj 156 : 1994 (2) DMC 162: 1994 (2) Hindu LR 167 :
1994 Marri LJ 532.
3 Dennis v. Dennis, (1955) 2 All ER 51 : (1955) 2 WLR 817 (CA); Robey v. Robey, AIR 1931 Cal 121 :130 Ind Cas 240;
Saraswati v. Keshwan, 1961 Ker LJ 1247.
1 AIR 1959 Punj 50 : 60 Punj LR 42: ILR 1959 Punj 152.
2 Sushma Dewan v. Manor Ajit Kumar Dewan, AIR 1973 P&H 256 : 1973 Cur LJ 112 (stay was for four days); Santosh
Kumari v. Om Prakash Chopra, 1977 Mad LR 185: 1976 All WC 822: AIR 1977 All 97 (stay was for six days); T.
Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356 [LNIND 1983 AP 176]: (1983) 2 Andh LT 47 [LNIND 1983 AP
176]: (1983) 2 APLJ (HC) 37: 1983 Hindu LR 658.
3 Tara v. Jaipal, ILR (1946) 1 Cal 604 ; M. Clarance s/o Murugesh v. M. Raicheal d/o Mari Prakasham, AIR 1964 Mys 67
: ILR (1963) Mys 788; Saroj v. Emmanuel, AIR 1965 Mys 12 ; Bright v. Bright, (1906) 36 Cal 964 (these cases are
under the Indian Divorce Act, 1869 where there exists similar jurisdiction rule);Lalithamma v. R. Kannan, AIR 1966 Mys
178 ; Jagan v. Swaroop, (1972) 2 MLJ 71; Madhvi Sirothia v. N.N. Sirothia, AIR 1974 All 36 : 1973 All WR (HC)
361(these cases are the Hindu Marriage Act, 1955).
4 (1981) 7 ALR 603 [LNIND 1981 SC 414]: (1981) 4 SCC 3 : AIR 1982 SC 3 [LNIND 1981 SC 414].
5 Saradakanta Panda v. Poonam Padhi, AIR 2009 Ori 145 [LNIND 2009 ORI 51]: 2009 AIHC 961 (NOC): 2009 (43)
OCR 128 : 2009 (1) Ori LR 949 (DB).
6 Joseph John Carvalho v. Leila Joseph Carvalho, AIR 1991 Bom 156 [LNIND 1990 BOM 620]: 1991 Mah LJ 168
[LNIND 1990 BOM 620]: (1991) 2 Bomcr 466 [LNIND 1990 BOM 620].
7 AIR 1984 P&H 305 : 1984 HLR 371: 1984 Marri LJ 239.
1 Saroj v. Emmanuael, AIR 1965 Mys 12, followed.
2 AIR 1986 Del 33 [LNIND 1985 DEL 229]: (1985) 2 DMC 187: (1985) 2 Hindu LR 363.
3 AIR 1998 MP 154 [LNIND 1997 MP 254]: 1998 (3) Civ LJ 286: 1998 (1) MPLJ 619 : 1999 (1) Marri LJ 224.
4 AIR 1966 Punj 506 .
5 AIR 1986 P&H 161.
6 See also Radha v. Radha, AIR 1992 J&K 1 . But see Pushpa Datt Mishra v. Archana Mishra, (1992) 2 HLR 245: AIR
1992 MP 260 [LNIND 1991 MP 73]: 1992 MPLJ 466.
7 S.S. Khanna v. F.J. Dhillon, AIR 1964 SC 497 [LNIND 1963 SC 188]: (1964) 4 SCR 409 [LNIND 1963 SC 188]: 66
Punj LR 115; Rajshree v. Principal Judge, Family Court, Lucknow, AIR 1994 Raj 156 : 1994 (2) DMC 162: 1994 (2)
Hindu LR 167 : 1994 Marri LJ 532.
1 AIR 2013 Bom 86 [LNIND 2012 BOM 379]: 2012 (3) DMC 26: 2012 (2) Hindu LR 520.
2 Subs. by Act 51 of 2001, sec. 28.
1 Section 46.
2 AIR 1971 Del 208 [LNIND 1970 DEL 252]: 73 Punj LR 169.
1 See also H.T. Vira Reddi v. Kistamma, AIR 1969 Mad 235 [LNIND 1968 MAD 7]: 81 Mad LW 490: (1969) 1 Mad LJ
366; Kamal Kant v. Darsiram, (1975) HLR 31; Bipin Chandra v. Madhuri Ben, AIR 1963 Guj 250 [LNIND 1963 GUJ 74]:
(1963)4 Guj LR 890(the court did not pass retrospective decree on similar facts).
2 Section 55 of the Indian Divorce Act, 1869 and section 45 of the Parsi Marriage and Divorce Act, 1936.
1 Section 28(2) of the Hindu Marriage Act, 1955 and section 39(2) of thespecial Marriage Act, 1954.
 Page 26 of 27
Chapter XIII PROCEDURE AND JURISDICTION

2 Section 28(3) of the Hindu Marriage Act, 1955 and section 39(3) of thespecial Marriage Act, 1954.
3 The Supreme Court had directed in Savitri Pandey v. Prem Chand Pandey, AIR 2002 SC 591 [LNIND 2002 SC 7]:
2002 AIR SCW 182: JT 2002 (1) SC 25 [LNIND 2002 SC 7]: (2002) 2 SCC 73 [LNIND 2002 SC 7]: 2002 (1) Supreme
90 to extend the period of appeal to 90 days from 30 days. This section has been amended by Act 50 of 2003 w.e.f. 23-
12-2003.
4 Section 28(1) of the Hindu Marriage Act, 1955 and section 39(1) of thespecial Marriage Act, 1954.
5 Valliammal Ammal v. Periaswami Udayar, AIR 1959 Mad 510 [LNIND 1959 MAD 22]: (1959) 2 Mad LJ 152: ILR 1959
Mad 969; Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom 42 [LNIND 1958 BOM 152]: 61 Bom LR 442:
ILR 1959 Bom 1085 [LNIND 1958 BOM 152]; Mallappa v. Mallava, AIR 1960 Mys 292 : ILR (1960) Mys 867; B. Balaji
Singh v. B. Raj Kumari, AIR 1972 Mad 278 [LNIND 1971 MAD 271]: 85 Mad LW 16: (1972) 2 Mad LJ 53; Paras Ram
v. Janki Bai, AIR 1961 All 395 [LNIND 1961 ALL 16]: 1961 All LJ 232: 1961 All WR (HC) 297: ILR (1961) 1 All 932 .
6 Paras Ram v. Janki Bai, AIR 1961 All 395 [LNIND 1961 ALL 16]: 1961 All LJ 232: 1961 All WR (HC) 297: ILR (1961) 1
All932.
7 S. Kalyan Singh s/o Ganesh Singh v. Tej Kaur d/o Charan Singh, AIR 1961 Punj 480 : 63 Punj LR 399: ILR (1961) 1
Punj 303 .
8 Proviso to and para. 2 of section 55.
9 Section 55, para. 1.
10 Millicans v. Millicans, AIR 1937 Lah 862 : 173 IC 518.
11 Alfred Stanley Barrett v. Kathleen Barrett, AIR 1950 All 193 [LNIND 1949 ALL 123]: 1959 All LJ 494: ILR (1951) 1 All
148 .
1 Valliammal Ammal v. Periaswami Udayar, AIR 1959 Mad 510 [LNIND 1959 MAD 22]: (1959) 2 Mad LJ 152: ILR 1959
Mad 969; B. Balaji Singh v. B. Raj Kumari, AIR 1972 Mad 278 [LNIND 1971 MAD 271]: 85 Mad LW 16: (1972) 2 Mad
LJ 53; Gangadhar Rakhamaji v. Manjulal Gangadhar, AIR 1960 Bom 42 [LNIND 1958 BOM 152]: 61 Bom LR 442: ILR
1959 Bom 1085 [LNIND 1958 BOM 152]; Mallappa v. Mallava, AIR 1960 Mys 292 : ILR (1960) Mys 867.
2 Dassi w/o Dhani Ram v. Dhani Ram Teku, AIR 1969 P&H 25 : ILR (1969) 2 P&H 365.
3 AIR 1984 Bom 239 [LNIND 1983 BOM 143]: 1984 Mah LJ 34 [LNIND 1983 BOM 143]: (1984) 2 Bom CR 26 [LNIND
1983 BOM 143]: 1984 Mah LR 656.
4 AIR 1984 Guj 167 [LNIND 1984 GUJ 68]: 1984 Guj LH 986.
5 AIR 1984 Ori 151 : (1984) 2 DMC 243.
1 Subhasini v. B.R. Umakanth, AIR 1981 Kant 115 : ILR (1980) 1 Kant 734; Uttam Nandi v. Momi Nandi, AIR 2008 Gau
177 : 2008 (70) All Ind Cas 936.
2 AIR 1985 Ori 239 [LNIND 1985 ORI 201]: (1985) 59 Cut LT 498: (1985) 1 DMC 457 : (1985) 2 Hindu LR 100; see also
Mahesh Bhardwaj v. Smita Bhardwaj, AIR 1995 Raj 47 .
3 AIR 1985 Ker 220 [LNIND 1985 KER 137]: 1985 Ker LT 540 [LNIND 1985 KER 137]: 1985 Ker LJ 550 : ILR (1985) 2
Ker 269 [LNIND 1985 KER 137].
4 1981 KLJ 602.
5 AIR 1979 Del 22 [LNIND 1978 DEL 51]: 1980 HLR 99: (1978) 2 Del 331.
6 (1898) ILR 22 Bom 612.
7 Pradip Kumar Kalita v. Hiran Prova Kalita, AIR 2002 Gau 60 (FB).
8 AIR 1987 P&H 191 : 1986 Marri LJ 560: (1986) 90 Punj LR 608 : ILR (1987) 2 P&H 264.
1 AIR 1995 P&H 213 : 1995 (21) Marri LJ 98: 1994 (3) Punj LR 67.
2 Jasbir Kaur v. Kuljit Singh, AIR 2008 P&H 168.
3 AIR 1988 Cal 28 [LNIND 1987 CAL 238]: (1987) 2 Cal LJ 446 [LNIND 1987 CAL 238]: (1988) 1 Cur CC 1034: (1988)
92 CWN 600 . See also Chitra Sen Gupta v. Dhruba Jyoti, AIR 1988 Cal 98 [LNIND 1987 CAL 78]: 92 CWN 54: (1988)
1 HLR 677 (Cal).
1 Saraswathi Ammal v. Lakshmi, (1989) 1 HLR 575: (1990) 2 DMC 146 : AIR 1989 Mad 216 [LNIND 1988 MAD 513].
2 Butterfield v. Butterfield, AIR 1923 Cal 426 ; T.V. Mathew v. Leelamma Mathew, AIR 1991 Ker 121 [LNIND 1990 KER
427]: (1991) 1 Ker LJ 91: (1991) 1 Ker LT 189 : ILR (1991) 2 Ker 779 (FB).
3 Kummo Devi v. Jai Pal, AIR 2010 HP 39 [LNIND 2010 HP 865]: 2010 (2) Marri LJ 420: 2010 (3) CCC 552.
* Deleted by Amending Act of 2001.
 Page 27 of 27
Chapter XIII PROCEDURE AND JURISDICTION

4 See Robert Sebastian v. Linet Suba, (1992) 2 DMC 345 : 1993 Marri LJ 121 (FB): AIR 1992 Ker 412 [LNIND 1992
KER 172]; Charter v. Eden, AIR 1992 Bom 142 [LNIND 1991 BOM 524]; Peter Masih v. Angllina Masih, AIR 1992 Del
20 [LNIND 1990 DEL 190]: 1992 (2) Cur LJ (CCR) 687 [LNIND 1990 DEL 190]: 1991 Mat LR 96: 1992 (2) Punj LR 34;
Mariasoosai v. Clara Mary, AIR 1995 Mad 35 [LNIND 1994 MAD 538]: (1995) 2 DMC 562: 1996 Marri LJ 74(DB).
5 AIR 1985 MP 85 [LNIND 1984 MP 76]: (1985) 1 DMC 229.
6 Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Cal 1 [LNIND 1988 CAL 235]: (1988) 2 Cal LJ 156 [LNIND 1988 CAL
235]: (1988) 2 Cal HN 153: (1988) 93 CWN 231 (SB).
1 Raj Kumar Bansal v. Anjana Kumari, AIR 1995 P&H 18 : 1994 (1) Hindu LR 417: 1995 (21) Marrilj 302 (DB).
2 Robert Sebastian v. Linet Suba, (1992) 2 DMC 345 : 1993 Marri LJ 121 (FB): AIR 1992 Ker 412 [LNIND 1992 KER
172];V.V. Pushpakaran v. P.K. Sarojini, AIR 1992 Ker 9 [LNIND 1990 KER 254]: 1991 (1) Arbi LR 19: 1990 (3) Cur CC
700: 1990 (2) Ker LT 534.
3 Saraswathi Ammal v. Lakshmi, (1989) 1 HLR 515: AIR 1989 Mad 216 [LNIND 1988 MAD 513]: 1990 (2) DMC 146;
Maharani Kusumkumari v. Kusumkumari Jadeja, 1991 AIR SCW 483: (1991) 1 SCC 582 [LNIND 1991 SC 62]; Maria
Desilva v. Austin Desilva, AIR 1992 Cal 309 [LNIND 1991 CAL 118]: 1991 CLJ 287: 1991 (2) Cur CC 424: 1993 (1)
Hindu LR 24 (proceedings abate); Thulasi Ammal (minor) by mother & guardian Kannu Ammal v. Gowri Ammal, AIR
1964 Mad 118 [LNIND 1963 MAD 106]: 76 Mad LW 505: ILR (1964) 1 Mad 65 : (1964) 1 Mad LJ 228; Iravva v.
ShivappaShiddalingappa Angadi, AIR 1987 Kant 241 [LNIND 1987 KANT 43]: (1987) 2 DMC 208: (1987) 2 Hindu LR
312.
4 AIR 1997 P&H 74 : ILR (1997) 1 P&H 20: 1997 Marri LJ 461: 1996 (114) Punj LR 286.
5 AIR 1997 SC 35 [LNIND 1996 SC 1634]: (1977) 11 SCC 159: 1997 Marri LJ 193.
6 AIR 1997 Raj 63 [LNIND 1997 RAJ 1]: 1997 Marri LJ 459.

End of Document
 Chapter XIV The Family Courts
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed

Chapter XIV The Family Courts

The Family Courts Act, 1984 has not yet been brought into force in all the States. The Family Courts have been
established in some towns and cities1.

Concept of Family Court

It is now realized practically all over the world that litigation in regard to any matter concerning family, whether
divorce, maintenance and alimony, or custody, education and financial support for children or trial of juvenile
offenders should not be viewed in terms of failure or success of legal actions but as a social therapeutic problem
needing solution. It should be viewed as a litigation in which parties and their counsel are engaged in resolving
family conflicts where humane considerations overweigh everything else. The resolution of family conflicts requires
special procedures—procedures designed to help people in trouble, to reconcile and resolve their differences, and
where necessary, to provide assistance. This means that the traditional adversarial procedure has to be modified
and replaced by an informal procedure. In our system today family matters are entrusted to the District Judge
(unless delegated to a subordinate court) who is well-versed in ordinary civil and criminal trials. He tries family
matters in usual manner with the normal adversarial procedure. In other words, the judge who tries claims for
breach of contract or tort, claims for motor vehicle accidents, and crimes like rape and murder, also tries all
matrimonial matters including custody of children and spousal maintenance. It is now realized that adjudication of
family matters is entirely a different matter. It has a different culture; it has a different jurisprudence. The court
adjudicating family disputes should function in a manner that it may tend to conserve and not disrupt the family life;
it should be helpful and not harmful to individual partners and their children; and it should be preservative rather
than punitive to family and marriage. It is, therefore, accepted that adversary system promotes ritualistic and
unrealistic response to family problems. The present system offers no legal protection to children. They are not
represented by counsel, and the court does not have enough information to determine their best interest. More
often than not, children are caught in the inter-spousal conflicts and become pawns, weapons and ultimately
victims. The fact of the matter is that adversarial process precludes reconciliation and conciliation of inter-spousal
and inter-parental conflicts. Thus, no court which is engaged in finding out what is for the welfare of the family,
whether a marriage has broken down or not, which spouse should have the custody of and access to children or
which spouse needs support, should rest content with the assertions and contentions of the parties and evidence
led by them to prove or disprove their assertions and contentions. The court engaged in this task requires a less
formal and more active investigational and inquisitional procedure. In other words, it is not a litigation in which
parties and their counsel are engaged in winning or defeating a legal action, but an inquisition in which parties,
social workers, lawyers, welfare officers, psychiatrists are engaged in finding out a solution to familial problems.

The concept of Family Court, thus, implies an integrated broad based service to families in trouble. It stipulates that
the Family Court structure should be such as to stabilize the marriage, to preserve the family, and where a marriage
has broken down irretrievably, to dissolve it with maximum fairness and minimum bitterness, distress and
humiliation. The Family Court system visualizes assistance of specialized agencies and persons.

Status of Family Court

The Family Courts Act, 1984, at the first instance, stipulates for the establishment of Family Courts for those towns
and cities whose population exceeds one million. It also lays down that the State Government may also set up
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Chapter XIV The Family Courts

Family Courts for other areas1. Appointment of Judges of Family Courts is to be made by the State Governments
with the concurrence of their High Courts. A Family Court may consist of one or more Judges2. Where there are
more than one Judge of a Family Court, each Judge is competent to exercise all or any of the powers of the Family
Court3. Where a Family Court has more than one Judge, the State Government with the concurrence of the High
Court will designate one of the Judges as the Principal Judge and any other Judge as Additional Principal Judge4.

The retirement age of the Judge of the Family Court, like that of the Judge of the High Court, is 62 years5. The
terms and conditions of service and emoluments of Judges are to be determined by the State Governments in
consultation with the High Courts6.

It appears that the Family Courts Act, 1984 stipulates to confer on the Family Court a status like that of the income-
tax tribunal. It is certainly higher than that of the District Judge and lower than that of the High Court, since appeals
from its decisions lie to the High Court.

Section 4(3) of the Act, lays down the qualification of Judges of the Family Court. A person who has at least seven
years’ experience as a judicial officer or as a member of a tribunal or who has held a post for that duration under
the Central or a State Government requiring special knowledge of law, or who has been an advocate of a High
Court (or two or more High Courts in succession) for at least seven years may be appointed as Judge of the Family
Court. Other qualifications may also be laid down by the Central Government in consultation with the Chief Justice
of India1. Women will be given preference for the appointment as judges of the Family Court2. Section 4(4)(a) also
lays down that “every endeavour shall be made to ensure that persons committed to the need to protect and
preserve the institution of marriage and to promote the welfare of children and qualified by reason of their
experience and expertise to promote the settlement of disputes by conciliation and counselling are selected.” This
provision certainly conveys that we have accepted the concept of Family Court, though it will be a very difficult task
to find out such a person. It is submitted that the judges of Family Court should also have adequate knowledge of
psychology, sociology and social work.

It is evident from the provisions of the Act, that those persons who are engaged in research and teaching of family
law in universities and research institutions, and are consequently experts in family law, are not eligible to be
appointed as judges of the Family Court. This seems to be an omission made inadvertently, particularly when the
employees of the Central and State Governments who are engaged in an employment needing special knowledge
of law are eligible. This obviously means that for the appointment of Judges of the Family Court a person need not
have any experience either as a Judge or as an advocate. But then why omit those who are engaged in research
and teaching of family law? One of the two things may be done: either the university employees may be deemed as
Central or State Government employees or section 4(3)(a) may be amended by adding a clause “or those who are
engaged in teaching of or research in family law for at least seven years”.

Jurisdiction of Family Court

There is some controversy as to what matters should come within the jurisdiction of the Family Court. It is agreed
upon that all matters directly pertaining to the family, such as matrimonial causes, maintenance and alimony of
spouses, custody, education and financial support to children, settlement of spousal property, and guardianship and
custody of children should come within the jurisdiction of the Family Court. Some hold the view that the para-family
matters, such as dowry, inter-spousal assaults and torts, familial assaults and other criminal matters between the
spouses and children, and inter-spousal and inter-familial contracts and torts should also fall within the purview of
the Family Court. Parliament has opted for the former view. Explanation to section 7(1) lists the following matters:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity, restitution of conjugal rights,
judicial separation and divorce;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or either
of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance; and
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Chapter XIV The Family Courts

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

The Statement of Objects and Reasons, clearly go to show that the jurisdiction of the Family Court extends, inter
alia, in relation to properties of spouses of either of them which would clearly mean that the properties claimed by
the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the
subsistence of a marriage or otherwise. It is now a well-settled principle of law that the jurisdiction of a Court
created specially for resolution of disputes of certain kinds should be construed liberally. The words “a suit or
proceeding between the parties to a marriage” cannot, therefore, be read as parties to a subsisting marriage. The
restricted meaning, if ascribed to Explanation (c) appended to section 7 of the Act, would frustrate the object
wherefore the Family Courts were set up. The dispute over properties between parties to a marriage cannot be
confined to the parties to a subsisting marriage.1

The Family Court has also been conferred jurisdiction for passing orders for maintenance of wives, children and
parents. Hitherto, this jurisdiction was conferred on a Magistrate of the first class under Chapter IX of the Code of
Criminal Procedure, 1973. Under section 125 of the Code if any person having sufficient means neglects or refuses
to maintain he may be ordered by the Magistrate to provide maintenance for (a) his wife (including) a divorced
wife2, who has not remarried) unable to maintain herself, or (b) legitimate and illegitimate minor children unable to
maintain themselves, major children are also to be included if they are unable to maintain themselves on account of
physical or mental abnormality or injury), and father or mother unable to maintain himself or herself.

In a matrimonial dispute the wife had been granted an interim maintenance at a certain rate. Subsequently, the
parties reached a compromise whereunder the wife came to live with the husband but could not continue to do so.
In such circumstances, the husband’s contention that the order of maintenance could not be revived as there had
arisen a fresh cause of action, was upheld by the High Court leaving the wife to approach the criminal court again
for appropriate relief. The Supreme Court held that the matter can be viewed from either angle. It can be viewed
that there was a genuine effort by the wife to rehabilitate herself in her matrimonial home but in vain. The previous
orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out
altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new
litigation on a fresh cause of action. Out of the two courses, the first one is preferable as the second one would lead
to injustice. In a given case, the wife may then be reluctant to settle with her husband lest she lose the order of
maintenance secured on his neglect or refusal. Her husband, on the other side, would jump to impromptu devices
to demolish the maintenance order in duping the wife to a temporary reconciliation. Thus, in order to do complete
justice between the parties, in the facts and circumstances of the case, the wife’s claim to maintenance has to be
activated and she has to be put in the same position as before. However, it would be open to the parties to claim
such other relief as may be due to him/her by raising a matrimonial dispute before the matrimonial court.1

Jurisdiction on the Family Court can also be conferred in any other matter under a statute.

One wishes that para-family matters were also included under the jurisdiction of the Family Court. At present it has
no jurisdiction on any matter pertaining to dowry or juvenile offenders.

Under section 7(1) of the Family Courts Act, read with clause (e) of the Explanation, a suit or proceeding for a
declaration “as to the legitimacy of any person” is within the jurisdiction of the Family Court. According to the
Petitioners, the child was born on account of extra-marital relationship of a married woman with their deceased son.
Accepting the case of the petitioners, the child cannot obviously be treated as a legitimate child of their son and that
woman. The question of status of the child in relation to the parties to the petition can be incidentally gone into by
the Family Court, if necessary, while deciding the guardianship petition. That liberty has been granted to the Family
Court. However, the declaratory relief as regards the illegitimacy of the child cannot be granted.2

Procedure
The concept of Family Court essentially implies the discarding of adversarial procedure: less formal, rules have to
be framed. It is submitted that:
(i) The rules should be framed in simple language clearly indicating the whole range of procedures, from the
commencement of an action to its conclusion, including the means of enforcing judgments, decrees and
orders.
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Chapter XIV The Family Courts

(ii) Flexibility of rules should be the hallmark of the new procedure so that diverse, at times complex, problems
of familial conflicts are covered.
(iii) As far as possible, standard forms should be provided for various types of proceedings and these forms
should be framed in such a manner as to be adaptable to the circumstances of each case.
(iv) Pleadings should be simple and should not have the traditional fault-oriented approach.
(v) Pre-trial processes should be designed in such a manner as to provide dignified means for the parties to
reconcile their differences or to arrive at amicable settlements without the need of trial.
(vi) Facilities for legal advice should be made available to each litigant so that he or she may become aware of
the rights and responsibilities and, where, children are involved, an early opportunity should be provided to
ensure that their rights are adequately protected.
(vii) Issues between the parties should be determined without any prejudicial delay. This is particularly
significant when the court is concerned with the placement of children.
(viii) The language, conduct, documentation and legal representation should be simple, shorn of all
technicalities.
(ix) Pre-trial documentation of the pleadings should be such that issues between the parties are clearly
defined. This will help avoid frivolous litigation and encourage pre-trial debate and settlement.
(x) One of the objectives of the Family Court system is to encourage and enable parties to go into a process of
reconciliation, failing which, the family court judge should have power to pass consent orders, if parties
have been able to come to some settlement without any formality of formal hearing or trial of issues.

The Family Courts Act, 1984 seems to opt for a less formal procedure. Although section 10 of the Act, makes the
procedure laid down under the Code of Civil Procedure, 1908 applicable to Family Court proceedings, it is also laid
down that the Family Court is free to evolve its own rules of procedure, and once the Family Court lays down its
own rules of procedure they will override the rules of procedure laid down in the Code of Civil Procedure, 1908
orcode of Criminal Procedure, 1973(such as under Chapter IX of the Code). The Act itself contains some provision
which indicates the informality of the procedure. Thus, the Family Court may receive as evidence any report,
statement, document, information or other matter that may assist it effectually in resolving a dispute, irrespective of
the fact that the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. It is not
obligatory on the part of the Family Court to record the evidence of witnesses at length. It would be enough if the
judge records or causes it to be recorded a memorandum of the substance of what witnesses have deposed such a
memorandum is required to be signed by the Judge and the witness, and once that is done it will form part of the
record of the case1. Where the evidence of a person is of formal character it may be given by affidavit and it will
constitute part of the evidence in the case1. The same informality is maintained about the judgment of the Family
Court. A judgment of the Family Court should contain a concise statement of the case, the points for determination,
the decision thereon and the reasons for such decision2. A decree or order of the Family Court may be executed by
the Court itself or any other Family Court or by an ordinary civil court in accordance with the convenience of the
party concerned3.

No appeal lies against the interlocutory orders. Similarly, no appeal lies against the decrees or orders passed with
the consent of the parties1. Otherwise an appeal lies to the High Court both on facts and law2. All appeals must be
presented within a period of thirty days from the date of judgment, order or decree of the Family Court3. All appeals
are to be heard by a Bench consisting of two Judges4. No second appeal is provided5. Of course, an appeal with
the special leave under article 136 will lie to the Supreme Court.

Proceedings in Cameraand Exclusion of Lawyers

It is now a part of the concept of Family Court that confidentiality of the Court record should be maintained and if the
parties so desire or the Court so thinks proper, the proceedings should be in camera. Section 11 of the Family
Courts Act, 1984 makes it obligatory on the part of the Court to hold the proceedings in camera if any party so
desires. These may also be held in camera if the Court so deems fit. However, one should not confuse the
confidentiality of the proceedings with secrecy of proceedings. In any democratic system, people are entitled to
know the way the justice is administered and, therefore, no Court should operate in secrecy. Constructive criticism,
research and proposals for reform can only come from knowledge of the ways and procedures by which the Family
Court operates.
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Chapter XIV The Family Courts

In some quarters there is a strong opinion for the exclusion of lawyer’s service from the Family Court. The
protagonists of the view advocate “do-it-yourself” divorce concept. It is submitted that in undefended cases and in
cases where parties are in a mood to settle issues amicably, the service of a qualified lawyer will hardly be needed.
But in complicated or hotly contested cases dispensation of lawyer’s service will undermine the rights of the parties
and may harm them. Most people are so upset in crisis, particularly in marriage crisis, as not even able to file
simple documents methodically, or even to think clearly and would greatefully employ a lawyer to relieve
themselves of another burden. It is, therefore, submitted that services of specifically trained lawyers should be
made available to parties and their children. It should be realised that when we are thinking of different courts for
family matter we are thinking of different types of lawyers also.

In Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi,6 the Bombay High Court has expressed the view that the
section does not bar presence of lawyer, and whenever necessary the court should freely make available the
services of lawyers.

The Family Courts Act, 1984 dispenses with the service of the lawyer. Section 13, of the Act makes it abundantly
clear when it lays down : “Notwithstanding anything contained in any law, no party to a suit or proceeding before a
Family Court shall be entitled, as of right, to be represented by a legal practitioner.” However, the Family Court may
seek the assistance of legal expert as amicus curiae whenever it considers that to do so is necessary in the interest
of justice1.

Support or Auxiliary Service

Auxiliary service is an essential adjunct of the Family Court. It is a part of the concept of Family Court. No Family
Court system can succeed without a well organized support service. It is a logical concomitant of the Family Court
system. The prime objective of the support service is to help parties at reconciliation, conciliation and to lesson
adversarial atmosphere. No Family Court system can succeed unless it is supported by a well organized and well
defined auxiliary service. It is submitted that the auxiliary service should have the following four component
services: (i) family counselling and reconciliation and conciliation service; (ii) investigative service; (iii) legal aid
service; and (iv) enforcement service.

The family counselling, reconciliation and conciliation service should be a three-tier service: (i) pre-marital
counselling, (ii) reconciliation and conciliation counselling, and (iii) post-adjudicatory counselling. The pre-marital
counselling service should not be part of Family Court system, but a community service easily accessible to person
in need of it. The reconciliation and conciliation counselling service should be available to the parties before they
have gone to the court as well as when they are in the court. Its main role is to promote reconciliation wherever
possible, and, where reconciliation is not possible or undesirable, to secure amicable settlement of all those issues
which need solution when a marriage has broken down. Its another role is to get the issues clarified and problems
defined and to attempt conciliation of as many issues as possible, regardless of the fact whether the marriage
survives or disintegrates. In its third role it provides post-adjudicatory counselling service which helps parties to sort
out post-divorce disputes and problems.

Since the Family Court system discards the adversary procedure, an investigational service is an essential adjunct
of the Family Court system. This service is meant to investigate the facts and submit its report which helps the court
in arriving at the decision in the main petition as well as collateral matters, such as, custody, education and support
of children, alimony and maintenance of spouses and settlement of property.

The main role of the legal aid service is to secure the assistance of competent lawyers to parties when they go to
trial of their conflicting or competing claims, requiring judicial disposition. Similarly, when parents contest about
children, the children should be independently represented by lawyers. This service will also help in the speedy
disposal of undisputed cases.

No less an adjunct of the Family Court system is the enforcement service. A party who has received a court order in
its favour often finds it difficult to enforce it in the present adversarial enforcement procedures. Thus, if a Court has
passed a maintenance order in favour of a spouse or child, or the custody of the child is committed to a person,
how the party is going to get that order enforced. More often than not the enforcement or execution proceedings
drag on for months, sometimes for years, and the party is not able to get the relief. The enforcement service will
look after the enforcement of all orders.
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Chapter XIV The Family Courts

The Family Courts Act, 1984 does visualise some support services. Most of these services are to be brought into
being under the rules. The Act stipulates for the association with the court proceedings of institutions or
organizations engaged in the social welfare, of persons professionally engaged in promoting the welfare of the
family, of persons working in the field of social welfare or any other expert in family law matters1. It also stipulates
for the appointment of counsellors, officers and other employees necessary for the functioning of the Family Courts
system2. The Family Court may also secure the services of a medical expert or such other persons who specialise
in promoting the welfare of the family to assist it in the discharge of its functions3.

In M.P. Gangadharan v. State of Kerala,4 the Supreme Court has held that Family Courts should be established not
only because it is provided in the Act but the State must be alive to situation that it has a duty to provide all
infrastructure to the forum of dispute resolution.

Training of Personnel of the Family Court System

India has taken the first necessary step in the direction of establishing the Family Courts. But much more needs to
be done. A vast manpower of trained persons to man the Family Courts and the auxiliary services would be
needed. It should be an essential part of the unified Family Court system that there should be in existence a training
and continuing education programme in which the Family Court Judges, the staff of support services and lawyers
should be fully involved. The personnel of the Family Courts system should have some training in family law,
sociology, psychology and social welfare before being called upon to discharge their functions. The entire personnel
of the Family Court system should, at regular intervals, participate in continuing education programme so that they
have better understanding of family conflicts and their appropriate disposition.

Need for continuous training and research in family law matters and allied subjects is imperative for the success of
the system. This will require the establishment of some permanent bodies or institutions. We may have family law
training centres in each State and an institute of Family Court system at the national level.

Execution of orders and decrees of the Family Court.—Where there is no Family Court, the decree and orders
of the Family Court has been executed by the District Court5.

Family Court Act overrides other statutes pertaining to family matters.—The Family Court Act, 1984 being a
special statute overrides, Hindu Minority and Guardianship Act, 1956 and other family law statute relating to the
jurisdiction of the court1.

A declaratory suit challenging the decree and orders of Family Court cannot be filed, alternative remedy like that of
appeal must first be exhausted2.

Family Court and High Courts Jurisdiction.—Family Court does not have concurrent jurisdiction with the High
Courts3.

Jurisdiction of Family Court

It was held in this instant case that it was true that Hindu Marriage Act or any other law governing the field did not
contain any express provision empowering the court to issue direction upon a party in a matrimonial proceeding to
compel him to submit herself to a medical examination. But it does not preclude the court from the passing such an
order. The court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or
not either for the purpose of taking evidence on the ground for which the matrimonial proceeding was started. It is
well-settled that the primary duty of the court to see that the truth comes out. Therefore, although the medical
examination for a party is not provided in the Act, even then the court has complete inherent power in an
appropriate case under section 151 of Civil Procedure Code to pass all orders for doing complete justice to the
parties in the suit.4
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Chapter XIV The Family Courts

Jurisdiction of Family Court vis-a-visRight of Deserted Wife to Stay in

Tenancy Premises
A deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the
suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions: first, that the
tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband
shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest
or defence by the wife would not be on a footing higher or larger than that of the tenant himself. Such a wife would
be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no
more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and rent control
legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay
exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations
including the payment of rent to which the tenant is subject. A deserted wife in occupation of the tenanted premises
on the other hand cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on
the ground of sub-letting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her
head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of
himself. A deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was
their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of
such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him
under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of
the premises. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done,
the Supreme Court responding to the demands of social and gender justice, needs to mould the relief and do
complete justice by exercising its jurisdiction under Article 142 of the Constitution of India. However, the purpose of
the holding as above is to give the wife’s right to residence a meaningful efficacy as dictated by the needs of the
times. It is neither intended nor proposed that the landlord’s right to eviction against his tenant be subordinated to
the wife’s right to residence enforceable against her husband. Let both the rights coexist so long as they can.1

1 See Order XXXII-A of the Code of Civil Procedure, 1908 which is akin to Family Courts.
1 Section 3.
2 Section 4(1).
3 Section 4(2)(a).
4 Section 4(2)(b).
5 Section 4(5).
6 Section 4(6).
1 Section 4(3)(c).
2 Section 4(4)(b).
1 K.A. Abdul Jaleel v. T.A. Shahida, AIR 2003 SC 2525 [LNIND 2003 SC 423]: (2003) 2 KLT 403 [LNIND 1997 KER
104]: (2003) 4 SCC 166 [LNIND 2003 SC 423].
2 After the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim divorced
woman cannot claim maintenance under the Code.
1 Mahua Biswas v. Swagata Biswas, (1998) 2 SCC 359 [LNIND 1997 SC 1437].
2 Renubala Maharana v. Mina Mohanty, AIR 2004 SC 3500 [LNIND 2004 SC 382]: (2004) 4 SCC 215 [LNIND 2004 SC
382]: (2004) 110 DLT 521.
1 Section 14.
2 Section 15.
3 Section 16.
1 Section 17.
2 Section 18(3).
 Page 8 of 8
Chapter XIV The Family Courts

3 Section 19(2).
4 Section 19(1).
5 Section 19(3).
6 AIR 1991 Bom 105 [LNIND 1990 BOM 420]: 1990 Mah LJ 1267 [LNIND 1990 BOM 420]: 1991 (1) Hindu LR 313.
1 Proviso to section 13.
1 Section 5.
2 Section 6.
3 Section 12.
4 AIR 2006 SC 2360 [LNIND 2006 SC 398]: 2006 AIR SCW 3120: (2006) 6 SCC 162 [LNIND 2006 SC 398]: 2006 (5)
SCJ 71: 2006 (4) Supreme 489.
5 Marya Teresa Martin v. E. Martin, s/o. Estay Ignatious, Madras, AIR 1994 Ker 264 [LNIND 1994 KER 55]: 1994 (1) Ker
LJ 598: 1994 (1) Ker LT 531 : ILR (1994) 3 Ker 28 ; Shahnaz Shaharyari alias Shirin Sha-haryari, Nagpur v. Dr. Vijay
Yeshwant Gawande, Bombay, AIR 1995 Bom 30 [LNIND 1994 BOM 247]: 1996 (1) Bom CR 473 [LNIND 1994 BOM
247].
1 Marya Teresa Martin v. E. Martin, s/o Estay Ignatious, Madras, AIR 1994 Ker 264 [LNIND 1994 KER 55]: 1994 (1) Ker
LJ 598: 1994 (1) Ker LT 531 : ILR (1994) 3 Ker 28 ; Shahnaz Shaharyari alias Shirin Sha-haryari, Nagpur v. Dr. Vijay
Yeshwant Gawande, Bombay, AIR 1995 Bom 30 [LNIND 1994 BOM 247]: 1996 (1) Bom CR 473 [LNIND 1994 BOM
247].
2 Shahnaz Shaharyari alias Shirin Sha-haryari, Nagpur v. Dr. Vijay Yeshwant Gawande, Bombay, AIR 1995 Bom 30
[LNIND 1994 BOM 247]: 1996 (1) Bom CR 473 [LNIND 1994 BOM 247].
3 Vincent Joseph Konath v. Jacintha Angela Vincent Konath, AIR 1994 Bom 121 : 1994 (3) Civ LJ 445: 1994 Mah LJ 477
[LNIND 1993 BOM 712]: 1994 Marri LJ 490(Foreign Marriage Act, 1969).
4 Lalit Kishore v. Meeru Sharma, AIR 2010 SC 1240 [LNINDU 2009 SC 13]: 2010 AIR SCW 547: (2009) 9 SCC 433
[LNINDU 2009 SC 13].
1 B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313 : AIR 2005 SC 986 : (2005) 1 KLT 904.

End of Document
 APPENDIX I
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX I RULES OF HIGH COURTS

Note.—Some of the Rules are outdated in view of later Amendments in the Acts. Hence read the provisions
accordingly.

1. ALLAHABAD HIGH COURT

(1) THE HINDU MARRIAGE AND DIVORCE RULES, 19561

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955), the High
Court of Judicature at Allahabad is pleased to make the following rules:—

1. Short title and commencement.—These rules may be called the Hindu Marriage and Divorce Rules, 1956.

They shall come into force with effect from the date of their publication in the Uttar Pradesh Gazette - Published in
U.P. Gazette, dated 20th October, 1956.

2. Definitions.—
(i) “Act” means the Hindu Marriage Act, 1955 (25 of 1955);
(ii) “Code” means the Code of Civil Procedure, 1908;
(iii) “Court” means the court mentioned in section 3(b) of the Act.

3. Petition.—
(a) Every petition under the Act shall be accompanied by a certified

extract from the Hindu Marriage Register maintained under section 8 of the Act, where the marriage has been
registered under this Act.
(b) Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 13 of the Act2 shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights as the case may be.

4. Forms of petitions.—The petitions made under the Act and the answers filed thereto shall, so far as may be,
with necessary modifications and adaptations be the same as those prescribed in the Schedule to the Indian
Divorce Act, 1869 (IV of 1869).

5. Contents of petitions.—In addition to the particulars required to be given under Order VII, rule 1 of the Code
and section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the
following particulars:—
(a) the place and date of marriage;
(b) the name, status, and domicile of the wife and husband, before or after the marriage;
(c) the principal permanent address where the parties cohabited and the address where they last resided
together;
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APPENDIX I

(d) whether there is living any issue of the marriage and, if so, the names, dates of birth and ages of such
issues;
(e) in every petition presented by a husband for divorce on the ground that his wife is living in adultery with any
person or persons or for judicial separation on the ground that his wife has committed adultery with any
person or persons, the name, occupation and place of residence of such person or persons so far as they
can be ascertained;
(f) in every petition presented by a wife for divorce on the ground that her husband is living in adultery with
any woman or women or for judicial separation on the ground that her husband has committed adultery
with any woman or women, the name, occupation and place of residence of such woman or women so far
as they can be ascertained;
(g) whether there have been in any Court in India, and if so, what previous proceeding with reference to the
marriage by or on behalf of either of the parties and the result of such proceedings;
(h) the matrimonial offence or offences charged, set out in separate paragraphs, with the time and place of its
or their alleged commission;
(i) property mentioned in section 27 of the Act, if any; and
(j) the relief or reliefs prayed for.

6. Necessary parties.—
(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or
has committed adultery with any person the petitioner shall make the alleged adulterer or adulteress a co-
respondent to the petition unless he or she is excused by the court from doing so on any of the following
grounds:
(i) that the name of such person is unknown to the petitioner although he has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent if a woman is leading the life of a prostitute and that the petitioner knows of no
person with whom adultery has been committed; or
(iv) any other reason that the court considers sufficient.
(b) In every petition under section 13(2)(i) of the Act, the petitioner shall make ‘the other wife’ mentioned in
that section a co-respondent.
(c) In every petition under section 11 of the Act on the ground that the condition in section 5(1) is contravened
the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.
(d) If a petitioner does not make the alleged adulterer or adulteress a co-respondent he shall at the time of
presenting the petition file a separate application supported by an affidavit giving the reasons.

7. Verification of petition.—Statements contained in every petition shall be verified by the petitioner or some other
competent person in the manner required by the Code for verification of plaints.

8. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within one year of such marriage he
or she shall obtain leave of the court under section 14 of the Act on ex parte application made to the court
in which the petition for divorce is intended to be filed.
(2) The application shall be accompanied by the petition intended to be filed bearing proper court-fee. The
application shall be supported by an affidavit made by the petitioner setting out the particulars of
exceptional hardships to the petitioner or exceptional depravity on the part of the respondent on which
leave is sought.
(3) The evidence in such application may, unless the court otherwise directs, be given by affidavit.
(4) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. The petitioner shall within a week of such order or within such further time as is allowed by the Court
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APPENDIX I

file, sufficient number of copies of application for leave, the affidavit in support thereof, the order of the
court thereon and the petition of divorce for service upon the respondents in the petition.

9. Service of order granting leave and procedure after service.—

(1) When the Court grants leave under the preceding rule a copy of the application for leave, the affidavit in
support thereof and the order granting leave along with the notice of the petition of divorce shall be served
on the party to be affected thereby personally:

Provided that the court may for a sufficient reason direct substituted service.
(2)
(a) If the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her
written statement, the grounds with particulars on which the grant of leave is sought to be contested.
(b) The Court may, if it deems fit, decide as a preliminary issue, the question as to the propriety of the
leave granted to the petitioner and may for that purpose summon and examine witnesses.

10. Notices.—The court shall issue notice accompanied by a copy of the petition to the respondent and co-
respondent, if any. The notice shall require, unless the Court otherwise directs, the respondent, or co-respondent,
to file his or her statement in Court, within one month of the service of the notice and to serve a copy thereof upon
each of the other parties to the petition within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
the manner provided for service of summons under Order V of the Code:

Provided that the Court may dispense with such service altogether in case it seems necessary or expedient to do
so.

12. Written statements or answers to petitions by respondents.—The respondent may and, if so required by
the Court shall, present a written statement in answer to the petition. The provisions of Order VIII of the Code shall
apply mutatis mutandis to such written statements. If in any proceedings for divorce the respondent opposes the
relief sought in the petition on the ground of the petitioner’s adultery, cruelty, or desertion, the written statement
shall state the particulars of such adultery, cruelty or desertion.

13. Intervener’s petitions.—Unless the Court for good cause shown otherwise directs, where the written statement
of the respondent alleges adultery by the petitioner with a named man or woman, a certified copy of such statement
or such material portion thereof containing such allegations shall be served on such man or woman accompanied
by a notice that such person is entitled within the time therein specified to apply for leave to intervene in the case.

Costs regarding intervention

(1) Whenever the Court finds that an intervener had no sufficient grounds to intervene, it may order the
intervenor to pay the whole or any part of the costs occasioned by the petition to intervene.
(2) When the Court finds that the charge or allegation of adultery against the intervener made in the petition or
written statement is baseless or not proved and that the intervention is justified it may, order the person
making such charge or allegation to pay to the intervenor the whole or any part of the cost of intervention.

14. Answer.—A person to whom leave to intervene has been granted may file in the court an answer to a written
statement containing the charges or allegations against the intervenor.

15. Mode of taking evidence.—The witnesses in all proceedings before the Court, where their attendance can be
had, shall be examined orally and any party may offer himself or herself as a witness and shall be examined and
may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit but so that
the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be
subject to be cross- examined, by or on behalf of the opposite party, orally and after such cross-examination may
be re-examined, by or on behalf of the party by whom such affidavit was filed.
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APPENDIX I

16. Costs.—Whenever in any petition any alleged adulterer or adulteress has been made a co-respondent and the
adultery has been established, the court may order the co-respondent to pay the whole or any part of the costs of
such proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of the adultery, living apart from her husband and leading the life of a
prostitute;
(ii) if the co-respondent had not, at the time of adultery reason to believe the respondent to be a married
person.

17. Application for alimony and maintenance.—

(a) Every application for any of the reliefs mentioned in sections 24, 25(1) and 26 of the Act, shall be
supported by an affidavit stating the average monthly incomes of the petitioner and the respondent, the
sources of the incomes, particulars of other movable and immovable property owned by them and the
names and ages of the persons dependent on the petitioner and the respondent.
(b) Every application for either of the reliefs mentioned in sub-sections (2) and (3) of section 25 of the Act shall
be accompanied by a certified copy of the order passed under sub-section (1) and supported by an
affidavit. It may be disposed of by the court in its direction on affidavits after giving an opportunity to the
party affected to be heard.

18. Taxation of costs.—Unless otherwise directed by the court the costs in petition under the Act shall be taxed as
if the proceedings were a suit.

19. Order as to costs.—The award of costs shall be within the discretion of the court.

20. Transmission of certified copy of the decree.—The Court shall send a certified copy of every decree for
divorce or nullity of marriage or dissolution of marriage to the Registrar of Marriage in-charge of the Hindu Marriage
Act Register, if any.

NOTIFICATION

English translation of Nyaya Vibhag (Adhinasth Nyayalaya) Notification No. 1778/VII-A. N-533-76, dated, 18th
August, 1978, published in U.P. Gazette, Part I, dated, 22nd September, 1979, p. 2410.

In exercise of the powers under clause (b) of section 3 of the Hindu Marriage Act, 1955 (25 of 1955) read with
section 21 of the General Clauses Act, 1897(10 of 1897), and in supersession of Government Notification No.
2207/VII-664-55, dated 11th October, 1956, the Governor is pleased to specify that (i) all the courts of Civil Judge in
Uttar Pradesh in their respective jurisdiction and (ii) all the courts of Additional District Judge and Additional Civil
Judge in Uttar Pradesh, in respect of such cases which are transferred to them by the District Judge shall have
jurisdiction of a “District Court” in respect of matters dealt with in the Hindu Marriage Act, 1955.
(2) RULES UNDER SECTION 16 OF THE INDIAN DIVORCE ACT, 1869 RULES OF ALLAHABAD HIGH COURT

Vol. I

CHAPTER XXXII

1. Decree nisinot to be made absolute for certain period.—A decree nisi shall not be made absolute till after
expiration of a period of six months or such longer period as may be specially fixed by the court at the time of the
passing of the decree, from the pronouncing thereof.

2. Objections to decree nisimade absolute.—

(1) Any person other than the officer* appointed under section 17A of the Indian Divorce Act, 1869, wishing to
show cause against a decree nisi being made absolute may after obtaining the leave of the Court enter an
appearance in the proceeding in which the said decree was pronounced, and at the same time file an
objection, supported by affidavit, setting forth the facts upon which he relies.
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APPENDIX I

(2) Copies of the objection and the affidavit shall thereafter be served upon the party in whose favour the said
decree was pronounced or his Advocate and such party within a time to be fixed by the Court file a reply
supported by affidavit. The person showing cause against the said decree being made absolute may,
within a further time to be so fixed, file a reply thereto.
(3) No such affidavit shall be required when cause is shown by the officer appointedunder section 17A of the
Indian Divorce Act, 1869.

2. ANDHRA PRADESH HIGH COURT

HINDU MARRIAGE RULES1

Rules to regulate proceedings under the Hindu Marriage Act, 1955 (Central Act 25 of 1955)

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955),
the High Court hereby makes the following rules to regulate proceedings under the said Act:—

1. Definitions.—
(i) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) ‘Court’ means the court mentioned in section 3(b) of the Act.

2. Form of proceedings.—The following proceedings under the Act shall be initiated by original petitions:—
(i) under section 9 for restitution of conjugal rights;
(ii) under sub-section (1) of section 10 for judicial separation;
(iii) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) under section 11 for declaring a marriage null and void;
(v) under section 12 for annulment of a marriage by a decree of nullity;
(vi) under section 13 for divorce;
(vii) under section 26 to make orders and provisions with respect to the custody, maintenance and education of
children.

3. Every other proceeding subsequent to the petition shall be by an interlocutory application.

4. Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Form 1 and
shall set forth the provision of the Act under which it is made.

5. Petition.—
(a) Every petition under the Act shall be accompanied by a certified copy of the entry relating to the marriage
in question in the Hindu Marriage Register maintained under section 8 of the Act, where such marriage has
been registered under the Act.
(b) Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 13 of the Act22 shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights, as the case may be.

6. Contents of petition.—
(1) Every petition shall state—
(a) the place and the date of the marriage;
(b) the names of the parties and their occupation;
(c) the place and address where the parties reside or last resided together within the jurisdiction of the
Court;
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APPENDIX I

(d) the names of the children, if any, of the marriage together with their dates of birth or age;
(e) if prior to the date of the petition there has been any proceedings under the Act between the parties to
the petition, the full particulars thereof;
(f) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which the respondent withdrew from the society of the petitioner;
(g) if the petition is for judicial separation, matrimonial offence alleged or other grounds upon which the
relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner, e.g.:
(i) in the case of alleged desertion, the date on and the circumstances under which it began;
(ii) in the case of cruelty or sexual intercourse with any person other than his or her spouse, the
specific act of cruelty or sexual intercourse and the occasion when and the places where such acts
were committed together with the name and address of the person or persons with whom the
respondent had sexual intercourse;
(iii) in the case of virulent form of leprosy or venereal disease in a communicable form, when such
ailment began to manifest itself, the nature and the period of the curative steps taken together with
the name and address of the person who treated for such ailment and in the case of venereal
disease that it was not contracted from the petitioner;
(iv) in the case of unsoundness of mind, the time when such unsoundness began to manifest itself, the
nature and period of any curative steps taken together with the name and address of the person
who treated for such unsoundness of mind;
(h) if the petition is for divorce, the matrimonial offence alleged or other grounds upon which the relief is
sought together with the full particulars thereof so far as such particulars are known to the petitioner,
e.g.:
(i) in the case of adultery, the specific acts of adultery and the occasion when and place where such
acts were committed together with the name and address of the person with whom such adultery
was committed;
(ii) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest
itself, the nature and period of any curative steps taken together with the name and address of the
person who treated for such unsoundness of mind;
(iii) if the case of virulent and incurable form of leprosy or venereal disease in a communicable form,
when such ailment began to manifest itself, the nature and the period of any curative steps taken
together with the name and address of the person who treated for such ailment;
(iv) in the case of presumption of death, the last place where the parties lived together, date when and
the place where the respondent was last seen or heard of as alive and the steps, if any, taken to
ascertain his or her whereabouts;
(i) if the petition is for a decree of nullity of marriage on the ground specified in clause (c) or clause (d) of
sub-section (1) of section 12 of the Act, the time when the facts relied on were discovered and whether
or not marital intercourse with the consent of the petitioner took place after the discovery of the said
facts.
(2) The petition shall set out, at the end, the relief or reliefs sought including any claim for—
(i) custody, care and maintenance of children;
(ii) permanent alimony and maintenance;
(iii) costs.

Where a claim is made under clause (ii) above the petition shall specify the annual or capital value of the
respondent’s property, the amount of his or her annual earnings

and other particulars relating to his or her financial resources and particulars relating to

the petitioner’s income and other property.

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APPENDIX I

7. Contents of written statement.—Every written statement in answer to a petition for restitution of conjugal rights
shall set out the particulars as far as may be set out in clauses (g), (h) and (i) of sub-rule (1) of rule 6.

8. Co-respondent.—
(1) Where a husband’s petition alleges adultery on the part of respondent, the alleged adulterer shall, if he is
living, be made a co-respondent in the petition:

Provided, however, that in case the adulterer’s name, identity or whereabouts are unknown to the petitioner in
spite of reasonable enquiries made and the Court is satisfied that it is just and expedient so to do, it shall, on
the application of the petitioner, dispense with the naming of the co-respondent.
(2) In every petition under section 13(2)(i) of the Act, the petitioner shall make ‘the other wife’ mentioned in
that section a co-respondent.
(3) In every petition under section 11 of the Act, on the ground that the condition in section 5(i) is contravened,
the petitioner shall make the spouse, alleged to be living at the time of the marriage, a co-respondent.

9. Damages and costs against co-respondent.—

(1) Where damages are claimed, the Court shall assess the damages and direct in what manner the damages,
if any, awarded shall be paid or applied.
(2) The Court may also direct the whole or any part of the costs of the petition shall be paid by the co-
respondent:

Provided that the co-respondent shall not be ordered to pay petitioner’s costs—
(a) if the respondent was, at the time of the adultery, living apart from her husband

and leading the life of a prostitute; or

(b) if the co-respondent had not, at the time of the adultery, reason to believe the respondent to be a
married woman.
(3) The Court may assess damages and make an order for payment thereof or of costs notwithstanding that
the respondent or the co-respondent or both of them have remained ex parte.

10. Application for maintenance Pendente liteand for permanent alimony and maintenance.—
(a) Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody,
maintenance and education expenses of minor children, shall state the average monthly incomes of the
petitioner and the respondent, the sources of these incomes, particulars of other movable and immovable
property owned by them, the number of dependents on the petitioner and the respondent, and the names
and ages of such dependents.
(b) Such application shall be supported by an affidavit of the applicant.

11. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce with one year of such marriage, he
or she shall obtain leave of the Court under section 14 of the Act, an ex parte application made to the Court
in which the petition for divorce is intended to be filed.
(2) The application shall be accompanied by the petition intended to be filed bearing the prescribed Court-fees
and in accordance with the rules. The application shall be supported by an affidavit made by the petitioner
setting out the particulars of exceptional hardship to the petitioner or exceptional depravity on the part of
the respondent on the basis of which leave is sought.
(3) The evidence in such an application may, unless the court otherwise directs, be given by affidavit.
(4) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. The petitioner within a week of the date of the said order shall file sufficient number of copies of
application for leave and order of the Court thereon and of the petition for divorce for service upon the
respondents in the petition.
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APPENDIX I

12. Service of copy of application for an order granting leave on the respondents and procedure after
service.—
(1) When the court grants leave under the preceding rule, a copy of the application for leave and order
granting leave shall be served on each of the respondents along with the notice of the petition for divorce.
(2)
(a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her
written statement, the grounds with particulars on which the grant of leave is to be contested;
(b) The Court may, if it so deems fit, frame, try and decide the issue as to the propriety

of the leave granted as a preliminary issue;

(c) The Court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.

13. When a petition is admitted, the Chief Ministerial Officer of the Court assign a

distinctive number to the petition and all subsequent proceedings on the petition shall bear that number.

14. Along with the petition, the petitioner shall furnish a copy thereof for service on the respondent and if a co-
respondent has been impleaded, an additional copy for

service on him, together with the fee prescribed under the Andhra Court Fees and Suits

Valuation Act, 1956, for service of notices.

15.
(1) Notice of the petition shall be in Form No. II for settlement of issues and shall require the respondent and
the co-respondent, if one is named in the petition, to enter appearance in person or by pleader and file a
written statement not less than seven days before the day fixed in the notice.
(2) The notice together with a copy of the petition shall be served on the respondent and the co-respondent, if
named, in the manner prescribed for service of summons in suits not less than 21 days before the day
appointed therein.

16. Transmission of certified copy of the decree.—The Court shall send a certified

copy of every decree for divorce or nullity or dissolution of marriage to the Registrar of Marriages incharge of the
Hindu Marriage Register, if any.

17.
(1) Appeals to the High Court from the decree and orders of the District Court shall be posted before a Bench
of two Judges.
(2) Such appeals shall be governed by the Rules of the High Court, Appellate side, as far as they may be
applicable.
(3) In every such appeal notice shall be issued to the co-respondent, if any.

Form No. I

(Rule 4)

IN THE COURT OF THE DISTRICT JUDGE

In the City Civil Court, Hyderabad

Original Petition No ........................ of 20 ........................

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APPENDIX I

In the matter of the Hindu Marriage Act, 1955.

A.B. ...................................................................... Petitioner

C.D. ..................................................................... Respondent.

Petition under section ........................ of the Hindu Marriage Act, 1955 and Rule........................of the Rules under
the Hindu Marriage Act.

Form No. II

(Rule 15)

IN THE COURT OF THE DISTRICT JUDGE

In the City Civil Court, Hyderabad

Original Petition No........................of 20.......................

In the matter of the Hindu Marriage Act, 1955

A.B. ...................................................................... Petitioner

C.D. ..................................................................... Respondent.

Petition presented on .....................

Petition filed on ...............................

Notice issued on ..............................

Whereas on the ...............day of ...............20 ......, the above-named petitioner filed a petition against the
respondent for (specified the relief) you are hereby required to appear in this Court on the ...............day
of........................ 20.......... at 10.45 a.m. in the forenoon in person or by pleader duly instructed and able to answer
all material questions relating to the above proceeding.

Also take notice that in default of your appearance on the aforesaid day the issues will be settled and the petition
heard and determined in your absence. You shall also bring with you or send by your pleader any document which
the petitioner desires to inspect and any document on which you intend to rely in support of your defence. You are
required to file a written statement in Court on or before the .......... day of ......... 20 .........

Given under my hand and the seal of this Court on the day of....................20.....

District Judge/Chief Judge.

Notes.—
(1) A copy of the petition accompanies this notice.
(2) This notice should be served not less than 21 days before the day fixed above for settlement of issues.
(3) Should you apprehend that your witnesses will not attend of their own accord, you can have summons
issued from this Court to compel the attendance of any witness, and the production of any document that
you have a right to call on the witness, to produce on applying to the Court and on depositing the
necessary expenses.

This notice has been taken out by Shri........................................ Advocate/Pleader for the petitioner.

Dated Sd/-
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APPENDIX I

..................

3. ASSAM HIGH COURT RULES FRAMED BY THE ASSAM HIGH COURT

THE SPECIAL MARRIAGE RULES, 19561

In exercise of the powers conferred by section 41 of the Special Marriage Act, 1954 (Act XLIII of 1954), the High
Court of Assam has been pleased to make the following rules under that Act. these rules will form part of the Civil
Rules and Orders, Volume I and will take effect from the date of publication in the Gazette.

1. short title.—These rules may be called the Special Marriage Rules, 1956.

2. Definition.—
(i) “Act” means the Special Marriage Act, 1954 (Act XLIII of 1954).
(ii) “Court” means the District Court.

3. Petitions.—
(1) Every petition made under the Act shall be accompanied by a certified copy of the Certificate from the
Marriage Certificate Book about the solemnization of the Marriage under the Act.2
(2) Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in
Schedule I of these rules and shall set forth the provision of the Act or of these rules under which it is
made.

4. Contents of petitions.—In addition to the particulars required to be given under the Act and under Order VII,
rule, 1 of the Civil Procedure Code, every petition for judicial separation, nullity of marriage and divorce shall
contain the following particulars—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband before the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last resided
together;
(d) whether there is any living issue of the marriage and if so, the names and dates of birth, or ages of such
issues;
(e) if prior to the date of the petition there has been any proceeding under the Act between the parties to the
petition, the full particulars thereof;
(f) if the petition is for restitution of conjugal rights, the date on or before which the circumstances under which
the respondent withdrew from or terminated conjugal relationship with the petitioner;
(g) if the petition is for judicial separation or divorce the matrimonial offence alleged or other grounds upon
which the relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner, e.g.—
(1) in the case of alleged desertion the date and circumstances under which it began;
(2) in the case of presumption of death, the last place where the parties lived together and the date when
and the place where the respondent was last seen or heard of as alive and the steps, if any, taken to
ascertain his whereabouts;
(3) in the case of cruelty or adultery the specific acts of cruelty or adultery and the occasions when and the
places where such acts were committed;
(4) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest
itself, the nature and period of any curative steps taken, together with the name and address of the
person who treated for such unsoundness of mind;
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APPENDIX I

(5) in the case of leprosy, or venereal disease in a communicable form, when such ailment began to
manifest itself, the nature and the period of curative steps taken, together with the name and address
of the person who treated for such ailment that such ailment was not contracted from the petitioner;
(h) if the petition is for a decree of nullity of marriage on the ground specified in clause (ii) or clause (iii) of
section 25 of the Act, the time when the facts relied on were discovered and whether or not marital
intercourse with the consent of the petitioner took place after the discovery of the said facts;
(i) the claim for damages, if any, with particulars;
(j) the relief or reliefs prayed for.

5. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce or judicial
separation on the ground that his wife has, since the solemnization of the marriage, been guilty of adultery, the
petitioner shall make the alleged adulterer co-respondent to the said petition, unless he is excused from so doing by
an order of the Court which may be made on any or more of the following grounds, which shall be supported by an
affidavit in respect of relevant facts.—
(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom
the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for
discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the Court may deem fit to consider.

6. Verification of petition.—Statements contained in every petition shall be verified by the petitioner or some other
competent person in a manner required by the Code of Civil Procedure for the time being in force for the verification
of plaints.

7. Forms of petitions.—The petitions made under the Act, shall, so far as possible, be made in the forms
prescribed in the Schedule to the Indian Divorce Act, 1869 (IV of 1869).

8. Petitions on behalf of lunatics.—When a husband or a wife is a lunatic or an idiot, any petition under the Act,
other than the petition for restitution of conjugal rights, may be brought, on his or her behalf by the person entitled to
his or her custody.

9. Petitions by minors.—
(1) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court;
and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in
writing to be answerable for costs.

Such undertaking shall be filed in court, and the next friend shall thereupon be liable in the same manner and to
the same extent as if he were plaintiff in an ordinary suit.
(2) The next friend shall file an affidavit along with the petition which shall state the age of the minor, that the
next friend has no adverse interest to that of the minor and that the next friend is otherwise a fit and proper
person to act as such.
(3) The Court may on considering the affidavit and such other material as it may require, record its approval to
the representation of the minor by the next friend or pass such other orders as it may deem fit.

10. Notice.—The Court shall issue notice to the respondent and co-respondent, if any. The notice shall be
accompanied, unless otherwise directed by the Court, by a copy of the petition. The notice shall also require, unless
the Court otherwise directs the respondent or co-respondent to file his or her statement in court within a period of
four weeks from the service or the notice and to serve a copy thereof upon each of the other parties to the petition,
within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
a manner provided for service of summons under Order V of the Civil Procedure Code:
 Page 12 of 245
APPENDIX I

Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to
do.

12. Written statements by respondents.—The respondent may and, if so required by the Court, shall present a
written statement in answer to the petition. The provisions of Order VIII of the Code of Civil Procedure shall apply
mutatis mutandis. In particular, if in any proceedings for divorce the respondent opposes the relief sought in the
petition on the ground of the petitioner’s adultery, cruelty or desertion, the written statement shall state the
particulars of such adultery, or desertion as required in the case of petition under clauses (d) and (g) of rules 4 and
the particulars of any relief which he claims on the said grounds.

13. Intervenors in wife’s petition.—

(1) Unless the Court for good cause shown otherwise directs,—
(a) where the husband is charged with adultery with a named female person a copy of pleading containing
such charge shall be served upon the person with whom adultery is alleged to have been committed,
accompanied by a notice that such person is entitled within the time therein specified to apply for leave
to intervene in the cause;
(b) Where the written statement of the respondent alleges adultery by the petitioner with a named man or
woman as the case may be, a copy of such statement shall be served on such man or woman,
accompanied by a notice that such person is entitled, within the time therein specified to apply for
leave to intervene in the cause.

14. Cost regarding intervention.—

(a) Whenever the Court finds that an intervenor has no sufficient cause for intervening, it may order the
intervenor to pay the whole or any part of the costs occasioned by the application to intervene.
(b) Whenever the Court finds that the charge or allegation against the intervenor made in the petition or written
statement is baseless or not proved and that the intervention in justified, it may order the person making
such charge or allegation against the intervenor to pay to the intervenor the whole or any part of the costs
of the intervention.

15. Answer.—A person to whom leave to intervene has been granted may file in the Court an answer to the petition
or written statement containing the charges or allegations against such intervenor.

16. Intervention by third party.—During the progress of the petition under Chapter V or VI of the Act, any person
suspecting that any parties to the petition are or have been acting in collusion, or the petitioner has committed fraud
or he has concealed some material facts from the Court for the purpose of obtaining the decree prayed for, shall
have the liberty to apply to Court stating the circumstances and facts of such collusion, fraud and concealment, as
the case may be. The application shall be supported by an affidavit. When such application is filed, the Court shall
give notice thereof to the parties concerned and after hearing them and taking necessary evidence pass the
necessary orders:
(i) If the Court comes to the conclusion that such collusion, fraud or concealment of material facts is proved,
then the original petition shall be dismissed, and the intervening third party shall be awarded his costs,
from the parties, guilty of such collusion, fraud or concealment of facts.
(ii) Whenever such application is made and the court comes to the conclusion that the intervening third party
had no grounds or no sufficient grounds for intervening, it may order him to pay the whole or any part of the
costs occasioned by his intervention.

17. Competence of husband and wife to give evidence as to cruelty or desertion or judicial separation.—On
any petition presented by a wife, praying for divorce or judicial separation by reason of her husband having been
guilty of adultery coupled with cruelty, or of adultery coupled with desertion without reasonable excuse, the husband
and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or
desertion.

18. Mode of taking evidence.—The witnesses in all proceedings before the Court where their attendance can be
had, shall be examined orally and any party may offer himself or herself as a witness, and shall be examined, and
may be cross-examined and re-examined, like any other witness:
 Page 13 of 245
APPENDIX I

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that
the deponent in every such affidavit shall, on the petition of the opposite party, or by direction of the Court, be
subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be
re-examined orally, as aforesaid by or on behalf of the party by whom such affidavit was filed.

19. Damages.—Any husband may, either in a petition for divorce or judicial separation, claim damages from any
person on the ground of his having committed adultery with the wife of such petitioner:—
(i) Such petition shall be served on the alleged adulterer and the wife unless the Court dispenses with such
service in accordance with the provisions of rule 11.
(ii) The damages to be recovered on any such petition shall be ascertained by the said Court, although the
respondent or either of them may not appear. After the decision has been given, the Court may direct in
what manner the damages shall be paid or applied.

20. Costs.—Whenever in any petition presented by a husband, the alleged adulterer has been made a co-
respondent and the adultery has been established, the Court may order the co-respondent to pay the whole or any
part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs.—
(i) if the respondent was, at the time of the adultery living apart from her husband and leading the life of a
prostitute; or
(ii) if the co-respondent had not, at the time of adultery, reason to believe the respondent to be a married
woman.

21. Taxation of costs.—Unless otherwise directed by the Court, the costs of the petition under the Act shall be
costs as taxed in suits under the Indian Divorce Act, IV of 1869.

22. Order as to costs.—The award of costs shall be within the discretion of the Court and the Court shall make an
order about the same while passing the decree.

23. Power to adjourn.—The Court may from time-to-time adjourn the hearing of any petition under the Act, and
may require further evidence thereon if it seems fit so to do.

24. Transmission of certified copy of the decree.—The Court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Marriage Officer appointed under section 3 of the Act.

25. Appeals.—
(1) An appeal to the District Court from the decision of the Marriage Officer under section 8 or section 17 of the
Act shall be in the form of a memorandum which shall be accompanied by a certified copy of the following
documents.—
(a) the notice of the intended marriage;
(b) the objection recorded by the Marriage Officer; and
(c) the decision of the Marriage Officer on the objection.
(2) The District Court may call for other records of the enquiry from the Marriage Officer.
(3) The Memorandum of Appeal shall be accompanied also by the process fee prescribed under the Court-
Fees Act for service of notice of the appeal on the objector.
(4) It shall be open to District Court to take such additional evidence as it considers necessary in the interest of
justice.
(5)
(1) Appeals to the High Court from the Decrees and Order of the District Court shall be governed by the
rules of the High Court as far as they may be applicable.
(2) In every such appeal notice shall be issued to the co-respondent and the intervenor, if any.
 Page 14 of 245
APPENDIX I

SCHEDULE I

[Rule 3(2)]

In the Court of the District Judge ..............................

Original Petition No ...................................of 20 ......

In the matter of the Special Marriage Act, 1954

Petition

Respondent

Co-respondent

Petition under section..............................................of the Special Marriage Act, 1954, and Rule.........
......................of the Special Marriage Rules.

4. BOMBAY HIGH COURT

(1) HINDU MARRIAGE AND DIVORCE RULES, 19551

Rules framed by the Bombay High Court under sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955) for
carrying out the purposes of the Act.

1. Short title and commencement.—

(i) These rules may be called the Hindu Marriage and Divorce Rules, 1955.
(ii) These rules shall come into force on 1st December, 1955.

2. Definitions.—
(i) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) ‘Code’ means the Code of Civil Procedure, 1908.
(iii) ‘Court’ means the Court mentioned in section 3(b) of the Act.

3. Petition.—
(a) Every petition under the Act shall be accompanied by certified extract from the Hindu Marriage Register
maintained under section 8 of the Act or from the Register maintained under the Bombay Registration and
Marriage Act (Bombay Act 5 of 1954) where the marriage has been registered under the Bombay Act or
this Act.
(b) Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 13 of the Act shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights as the case may be.

4. Contents of petitions.—In addition to the particulars required to be given under Order VII, rule 1, of the Civil
Procedure Code and section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce
shall contain the following particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband, before and after the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last resided
together;
 Page 15 of 245
APPENDIX I

(d) whether there is living any issue of the marriage and, if so, the names and dates of birth, or ages of such
issues:
(i) In every petition presented by a husband for divorce on the ground that his wife is living in adultery with
any person or persons or for judicial separation on the ground that his wife has committed adultery with
any person or persons, the petition shall state the name, occupation and place of residence of such
person or persons so far as they can be ascertained;
(ii) In every petition presented by a wife for divorce on the ground that her husband is living in adultery
with any woman or women or for judicial separation, on the ground that her husband has committed
adultery with any woman or women, the petitioner shall state the name, occupation and place of
residence of such woman or women, so far as they can be ascertained;
(e) whether there have been any proceeding in any court in India, and if so, what previous proceedings with
reference to the marriage by or on behalf of either of the parties and the result of such proceedings;
(f) the matrimonial offence or offences charged, set out in separate paragraphs with the time and place of its
or their alleged commission;
(g) property mentioned in section 27 of the Act, if any;
(h) the relief or reliefs prayed for.

5. Necessary parties.—
(i) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or
has committed adultery with any person, the petitioner shall make such person a co-respondent. The
petitioner may, however, apply to the Court by an application supported by an affidavit for leave to
dispense with the joinder of such person as a co-respondent on any of the following grounds:—
(i) that the name of such person is unknown to the petitioner although he has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom adultery has been committed;
(iv) for any other sufficient reason the court may deem fit to consider.
(j) In every petition under section 13(2)(i) of the Act the petitioner shall make ‘the other wife’ mentioned in that
section a co-respondent.
(k) In every petition under section 11 of the Act on the ground that condition in section 5(1) is contravened, the
petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

6. Verification of petition.—Statements contained in every petition shall be verified by the petitioner or some other
competent person in a manner required by the Code of Civil Procedure for the time being in force for the verification
of plaints.

7. Forms of petitions.—The petitions made under the Act shall, so far as possible, be made in the forms
prescribed in the Schedule to the Indian Divorce Act, 1869 (4 of 1869).

8. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within three years of such marriage, he or
she shall obtain leave of the Court under section 14 of the Act on ex parte application made to the Court in which
the petition for divorce is intended to be filed.

(2) The application shall be accompanied by the petition intended to be filed bearing the proper court-fees under the
law and in accordance with the rules. The application shall be supported by an affidavit made by the petitioner
setting out the particulars of exceptional hardships to the petitioner or exceptional depravity on the part of the
respondent on which leave is sought.

(3) The evidence in such application may, unless the Court otherwise directs, be given by affidavit.
 Page 16 of 245
APPENDIX I

(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said order.
The petitioner within a week of the date of the said order shall file sufficient number of copies of application for
leave and order of the court thereon and of the petition for divorce for service upon the respondents in the petition.

9. Service of copy of application for and order granting leave on the respondents and procedure after
service.—
(1) When the court grants leave under the preceding rule a copy of the application for leave and order granting
leave shall be served on each of the respondents along with the notice of the petition for divorce.
(2)
(a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained; he or she shall set forth in his or her
written statement the grounds with particulars on which the grant of leave is sought to be contested.
(b) The court may, if it so deems fit, frame, try and decide the issue as to the propriety of the leave granted
as a preliminary issue.
(c) The court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.

10. Notice.—The Court shall issue notice to the respondent and co-respondent, if any. The notice shall be
accompanied by a copy of the petition. The notice shall require, unless the Court otherwise directs, the respondent
or co-respondent to file his or her statement in Court within a period of four weeks from the service of the notice and
to serve a copy thereof upon each of the other parties to the petition within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
the manner provided for service of summons under Order V of the Code of Civil Procedure:

Provided that the Court may dispense with such service altogether in case it seems necessary or expedient to do
so.

12. Written statement in answers to petitions by respondent.—The respondent may and, if so required by the
Court, shall present a written statement in answer to the petition. The provisions of Order VIII of the Code shall
apply mutatis mutandis. In particular, if in any proceedings for divorce the respondent opposes the relief sought in
the petition on the ground of the petitioner’s adultery, cruelty or desertion, the written statement shall state the
particulars of such adultery, cruelty or desertion.

13. Intervener’s petition.—

(1) Unless the Court for good cause shown otherwise directs, where the written statement of the respondent
alleges adultery by the petitioner with a named man or woman, a certified copy of such statement or such
material portion thereof containing such allegation shall be served on such man or woman accompanied by
a notice that such person is entitled within the time therein specified to apply for leave to intervene in the
cause.
(2) Costs regarding intervention—
(a) Whenever the Court finds that an intervener had no sufficient grounds for intervening, it may order the
intervener to pay the whole or any part of the costs occasioned by the application to intervene.
(b) When the Court finds that the charge or allegation of adultery against the intervenor made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
the person making such charge or allegation against the intervener to pay to the intervener they whole
or any part of the costs of intervention.

14. Answer.—A person to whom leave to intervene has been granted may file in the court an answer to written
statement containing the charges or allegations against such intervener.

15. Mode of taking evidence.—The witnesses in all proceedings before the court, where their attendance can be
 Page 17 of 245
APPENDIX I

had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and
may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that
the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the court, be
subject to be cross- examined, by or on behalf of the opposite party orally, and after such cross-examination may
be re-examined orally as aforesaid by or on behalf of this party by whom such affidavit was filed.

16. Costs.—Whenever in any petition presented by a husband the alleged adulterer has been made a co-
respondent and the adultery has been established, the Court may order the co-respondent to pay the whole or any
part of the costs of the proceeding:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a
prostitute, or
(ii) if the co-respondent had not, at the time of adultery, reason to believe the respondent to be a married
person.

17. Applications for alimony and maintenance.—

(a) Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody,
maintenance and education expenses of minor children, shall state the average monthly incomes of the
petitioner and the respondent, the sources of these incomes, particulars of other moveable and immovable
property owned by them, the number of dependents on the petitioner and the respondent, and the names
and ages of such dependents.
(b) Such application shall be supported by the affidavit of the applicant.

18. Taxation of Costs.—Unless otherwise directed by the Court, the costs of the petition under the Act shall be
costs as taxed in a suit.

19. Order as to costs.—The award of costs shall be within the discretion of the Court.

20. Transmission of certified copy of the decree.—The Court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Registrar of Marriages in charge of the Hindu Marriage Register, if
any, or in charge of the Register maintained under the Bombay Act 5 of 1954.

21. Applicability of the rules of the City Civil Court, Bombay.—Where any applications or petitions under the
Act are filed in the City Civil Court, Bombay, the rules of the court, except in so far as they are inconsistent with the
Act, and these rules, shall apply to such applications or petitions.
(2) SPECIAL MARRIAGE RULES, 1954

Rules framed by the Bombay High Court under section 50 of the Special Marriage Act, 1954 (43 of 1954)

1. Short title and commencement.—

(i) These rules may be called the Special Marriage Rules, 1954.
(ii) The rules shall come into force on the 1st January, 1955.

2. Definitions.—
(i) “Act” means Special Marriage Act, 1954;
(ii) “Code” means the Code of Civil Procedure, 1908;
(iii) “Court” means District or the City Civil Court as the case may be.

3. Petition.—Every petition made under the Act shall be accompanied by a certified

copy of the certificate from the Marriage Certificate Book about the solemnization of the marriage under the Act.
 Page 18 of 245
APPENDIX I

4. Contents of petition.—In addition to the particulars required to be given under Order VII, rule 1 of the Code of
Civil Procedure every petition for judicial separation, nullity of marriage and divorce shall contain the following
particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband before the marriage;
(c) the principal permanent address where the parties cohabited including the address

where they last resided together;

(d) whether there is living any issue of the marriage and if so the names and dates on births or ages of such
issues:
(i) in every petition presented by a husband for divorce or judicial separation on the ground that his wife
has committed adultery, with any person or persons the petitioner shall state the name, occupation and
place of residence of such person or persons so far as they can be ascertained,
(ii) in every petition presented by a wife for divorce or judicial separation on the ground that her husband
has committed adultery with any woman or women the petitioner shall state the name, occupation and
place of residence of such woman or women so far as they can be ascertained;
(e) whether there has been in any court in India and if so what previous proceedings with reference to the
marriage by or on behalf of either of the parties and the result of such proceedings;
(f) the matrimonial offence charged set out in separate paras with the time and places of their alleged
commission;
(g) the claim for damage, if any, with particulars;
(h) if the petition is one for a decree of dissolution of marriage, or of nullity or annulment of marriage or for
judicial separation, it shall further state that there is no collusion or connivance between the petitioner and
the other parties to the marriage or alleged marriage;
(i) the relief or reliefs prayed for.

5. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce or judicial
separation on the ground that his wife has since the solemnization of the marriage been guilty of adultery, the
petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing
by an order of the Court which may be made on any one or more of the following grounds, which shall be supported
by an affidavit in respect of the relevant facts:—
(i) that the respondent is leading the life of a prostitute and that the petitioner knows of no person with whom
the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts for
discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the court may deem fit to consider.

6. Verification of petition.—Statements contained in every petition shall be verified

by the petitioner or some other competent person in a manner required by the Code of

Criminal Procedure for the time being in force for the verification of plaints.

7. Forms of petition.—The petition made under the Act shall, so far as possible, be made in the forms prescribed
in the Schedule to the Indian Divorce Act, 1869.

8. Petitions on behalf of lunatics.—When a husband or a wife is a lunatic or an idiot any petition under the Act
other than the petition for restitution of conjugal rights may be brought on his or her behalf by the person entitled to
his or her custody.
 Page 19 of 245
APPENDIX I

9. Petitions by minors.—
(1) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the court,
and no petition presented by a

minor under the Act shall be filed until the next friend has undertaken in writing to be answerable for costs.
Such undertaking shall be filed in Court and the next friend shall

thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
(2) The next friend shall file an affidavit along with the petition which shall state the

age of the minor, that the next friend has no adverse interest to that of the minor and

the next friend is otherwise a fit and proper person to act as such.
(3) The Court may on considering the affidavit and such other material as it may

require record its approval to the representation of the minor by the next friend or pass
such other orders as it may deem fit.

10. Notice.—The Court shall issue notice to the respondent and co-respondent if any. The notice shall be
accompanied unless otherwise directed by the Court by a certified copy of the petition. The notice shall require,
unless the court otherwise directs, the respondent or co-respondent to file his or her statement in court within a
period of four weeks from the service of the notice and to serve a copy thereof upon each of the other parties to the
petition, within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
a manner provided for service of summons under Order X of the Code of Civil Procedure:

Provided that the Court may dispense with such service altogether in case it deems necessary or expedient so to
do.

12. Written statements in answer to petitions by respondent.—The respondent may and if so required by the
court shall present a written statement in answer to the petition. The provisions of Order VIII of the Code shall apply
mutatis mutandis to such written statements. In particular if in any proceeding for divorce the respondent opposes
the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion the written statement
shall state the particulars of such cruelty, adultery or desertion as required in the case of petition under clauses (d)
and (f) of rule 4 and the particulars of any relief which he claims on the same grounds.

13. Interveners in wife’s petition.—

(1) Unless the court for good cause shown otherwise directs—
(a) Where the husband is charged with adultery with a named female person a certified copy of pleading
or material portion thereof containing such charge shall be served upon the person with whom adultery
is alleged to have been committed accompanied by a notice that such person is entitled within the time
therein specified to apply for leave to intervene in the cause.
(b) Where the written statement of the respondent alleges adultery by the petitioner with a named man or
woman as the case may be, a certified copy of such statement or such material portion thereof
containing such allegation shall be served on such man or woman accompanied by a notice that such
a person is entitled within the time therein specified to apply for leave to intervene in the cause.
(2) Costs regarding intervention—
(a) whenever the court finds that the intervener has no sufficient grounds for intervening it may order the
person making such charge or allegation against the intervener to pay to the intervener the whole or
any part of the costs of the intervention;
(b) whenever the Court finds that the charge or allegation of adultery against the intervenor made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
 Page 20 of 245
APPENDIX I

the person making such charges or allegation against the intervener to pay to the intervener the whole
or any part of the costs of intervention.

14. Answer.—A person to whom leave to intervene has been granted may file in the Court an answer to the petition
or written statement containing the charges or allegations against such intervener.

15. Intervention by third party.—During the progress of the petition under clause (v) or (vi) of the Act any person
suspecting that any parties to the petition are or have been acting in collusion or the petitioner has committed fraud
or he has concealed some material facts from the court for the purpose of obtaining the decree prayed for, shall be
at liberty to apply to the court stating the circumstances and facts of such collusion, fraud and concealment as the
case may be. The application shall be supported by an affidavit when such application is filed, the court shall give
notice thereof to the parties concerned and after hearing them and taking necessary evidence pass the necessary
order—
(i) if the court comes to the conclusion that such collusion, fraud or concealment of material fact is proved,
then the original petition shall be dismissed, and the intervening third party shall be awarded his costs from
the parties, guilty of such collusion, fraud or concealment of facts;
(ii) whenever such application is made and the court comes to the conclusion that the intervening third party
had no grounds or no sufficient grounds for intervening, it may order him to pay the whole or any part of the
costs occasioned by his intervention.

16. Competence of husband and wife to give evidence as to cruelty or desertion or judicial separation.—On
any petition presented by a wife, praying for divorce or judicial separation by reason of her husband having been
guilty of adultery coupled with cruelty or adultery coupled with desertion without reasonable excuse, the husband
and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or
desertion.

17. Mode of taking evidence.—The witnesses in all proceedings before the court, where their attendance can be
had, shall be examined orally and any party may offer himself or herself as a witness and shall be examined, and
may be cross-examined and re-examined, like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit but so that
the deponent in every such affidavit shall, on the petition of the opposite party, or by direction of the court, be
subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be
examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

18. Damages.—Any husband may either in a petition for divorce or judicial separation, claim damages from any
person on the ground of his having committed adultery with the wife of such petitioner—
(i) such petition shall be served on the alleged adulterer and the wife unless the court dispenses with such
service in accordance with the provisions of Rule No. 11;
(ii) the damages to be recovered on any such petition shall be ascertained by the said court, although the
respondent or either of them may not appear. After the decision has been given, the court may direct in
what manner the damages shall be paid or applied.

19. Costs.—Whenever in any petition presented by a husband, the alleged adulterer has been made a co-
respondent and the adultery has been established the Court may order the co-respondent to pay the whole or any
part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a
prostitute; or
(ii) if the co-respondent had not at the time of adultery, reason to believe the respondent to be a married
woman.

20. Taxation costs.—Unless otherwise directed by the court the costs of the petition under the Act shall be costs
as taxed in suits under the Indian Divorce Act, 1869 (4 of 1869).
 Page 21 of 245
APPENDIX I

21. Order as to costs.—The award of costs shall be within discretion of the court and the court shall make an order
about the same while passing the decree.

22. Power to adjourn.—The court may from time to time adjourn the hearing of any petition under the Act and may
require further evidence thereon if it seems fit so to do.

23. Transmission of certified copy of the decree.—The court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Marriage

Officer appointed under section 3 of the Act.

(3) RULES UNDER THE INDIAN DIVORCE ACT, 1869

BOMBAY HIGH COURT (ORIGINAL SIDE)

Rules, 1980

CHAPTER XLIV

804. Contents of petition and prayer.—

(1) Every petition under sections 10, 18, 23, 27, 32 or 34 of the Indian Divorce Act, 1869 (hereinafter in this
chapter referred to as “the Act”) shall state: (a) whether the petitioner professes the Christian religion; (b)
the place and date of the marriage and the name, status and domicile of the wife before marriage; (c) the
status of the husband and his domicile at the time of the marriage and at the time when the petition is
presented, and his occupation and the place or places or residence of the parties at the time of the
institution of the suit; (d) the principal permanent addresses where the parties have cohabited, including
the address where they last resided together in India; (e) whether there are living any issue of the
marriage, and if so the names and dates of birth or ages of such issue; (f) whether there have been in any
Court in India or outside India any, and if so what previous proceedings with reference to the marriage by
or on behalf of either of the parties of the marriage, and the result of such proceedings; (g) the matrimonial
offences charged set out in separate paragraphs with the times and places of their alleged commission; (h)
the claim for damages, if any; (i) the grounds on which the petitioner claims that the High Court has
jurisdiction to determine the petition, and if the petition is one for a decree of dissolution of marriage or of
nullity of marriage or of judicial separation, it shall further state that there is no collusion or connivance
between the petitioner and the other party to the marriage.
(2) The petition shall conclude with a prayer setting out particulars of the relief claimed, including the amount
of any claim for damages and any order for custody of children which is sought, and shall be signed by the
petitioner:
Provided that where the petitioner is, by reason of absence or for other good cause, unable to sign the petition,
it may be signed by any person duly authorised by him or her to sign the same or to sue on his or her behalf.

805. Marriage certificate to be annexed to petition.—Every such petition shall be accompanied by a certified
copy of the certificate of marriage, if such a certificate is available to the petitioner.

806. Verification of petition.—The statements contained in every petition shall be verified by the petitioner or
some other competent person in the manner required by the Code of Civil Procedure for the verification of plaints.

807. Co-respondent in husband’s petition.—In every petition presented by a husband for the dissolution of his
marriage the petitioner shall make the alleged adulterer a co-respondent in the suit, unless the court shall otherwise
direct under section 11 of the Act.

808. Intervener in wife’s petition.—Where a husband is charged with adultery with a named person, a certified
copy of the pleading containing such charge shall, unless the court for good cause otherwise directs, be served
upon the person with whom adultery is alleged to have been committed, accompanied by a notice that such person
is entitled, within the time therein specified, to apply for leave to intervene in the cause. The notice shall be in Form
No. 86.

809. Notice to appear and answer.—The notice to appear and answer shall require the respondent or the co-
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respondent, as the case may be, to enter an appearance in person or a vakalatnama within fourteen days from the
service of the notice and to make answer to the charges in the petition within fourteen days thereafter and unless
otherwise ordered, the notice shall be made returnable eight weeks after the date of the filing of the petition. If the
respondent and the co-respondent reside within the local limits of the court and ten weeks after the date of the filing
of the petition if either the respondent or the co-respondent resides outside the said limits. The notice shall be in
Form No. 85.

810. Service of petition and notice.—Every petition or notice under the Act shall be served on the party to be
affected thereby, either within or without India, by serving him, in the manner prescribed by the Code of Civil
Procedure for the service of the summons with a certified copy of the petition or of the notice, as the case may be:

Provided that, unless the court for good cause otherwise directs, service of all such petitions and notices shall be
effected by delivery of the same to the party to be affected thereby, and the court shall record that it is satisfied that
the service has been so effected:

Provided also that the court may dispense with such service altogether in case it seems necessary or expedient to
do so:

Provided further that no service shall be necessary of any petition or notice to make a decree absolute.

811. Answer to the petition.—A respondent or co-respondent, or a woman to whom leave to intervene has been
granted under rule 808 may file in the court an answer to the petition.

812. Answer to be verified and to be served on parties concerned.—

(1) An answer to the petition shall be verified by the respondent or co-respondent or the intervener, as the
case may be, in the manner required by these rules for the verification of petitions and when the
respondent is husband or wife of the petitioner, the answer shall contain a declaration that there is not any
collusion or connivance between the parties.
(2) Where the answer of a husband alleges adultery and prays for relief, a certified copy thereof shall be
served upon the alleged adulterer, together with a notice to appear in like manner as in a petition. When in
such case no relief is claimed, the alleged adulterer shall not be made a co-respondent, but a certified copy
of the answer shall be served upon him together with a notice as provided under rule 808 that he is entitled
within the time therein specified to apply for leave to intervene in the suit, and upon such application he
may be allowed to intervene, subject to such direction as shall then be given by the court.

813. Suit may be stayed or proceeded with.—

(1) If it appears to the court that proceedings for the dissolution of the marriage have been instituted in any
other court in India or outside India before the date on which the petition was filed in the court, the court
may stay further proceedings thereon until such time as the court may direct or proceed with the trial of the
suit or pass such other orders as it may deem fit.
(2) If it appears that such proceedings were instituted after the filing of the petition in the court, the court may
proceed with the trial of the suit.

814. Service of decree nisifor dissolution of marriage.—A decree nisi for dissolution of marriage shall be served
on the respondent in the manner provided by the Code of Civil Procedure for the service of summons. An affidavit
proving service of the decree nisi shall be filed before an application is made for decree absolute. Where the court
has under rule 810 above dispensed with the service of the notice altogether, it shall not be necessary to serve the
decree nisi and to file an affidavit as provided above.

815. Service of decree containing collateral matters.—Where a decree contains an order in respect of collateral
matters, such as an order for the custody of children or an order for paying damages into court, etc., it shall be
served on the respondent and the co-respondent in the manner provided by the Code of Civil Procedure for the
service of summons. Proceedings subsequent to such decree shall not be rendered invalid by reason only of the
fact that the decree is not proved to have been served.

An application to enforce an order in respect of collateral matters in a decree shall be made by Chamber Summons
supported by affidavit.
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816. Service of decree for judicial separation or restitution of conjugal rights.—A decree for judicial
separation or restitution of conjugal rights shall be served on the respondent in the manner provided by the Code of
Civil Procedure for the service of summons.

817. How cause shown after decree nisi.—Any person, other than the “Officer” appointed by the State
Government, wishing to show cause against making absolute a decree nisi shall, if the court so permits, enter an
appearance in person or a vakalatnama in the suit in which such decree nisi has been pronounced, and at the
same time file affidavits setting forth the facts upon which he relies. Certified copies of the affidavits shall be served
upon the party or the Advocate on Record for the party in whose favour the decree nisi has been pronounced.

818. Affidavits in reply and rejoinder.—The party in the suit in whose favour the

decree nisi has been pronounced may within a time to be fixed by the court file affidavits

in reply and the person showing cause against the decree nisi being made absolute may

within a further time to be so fixed file affidavits in rejoinder.

819. Decree absolute when to be made.—No decree nisi for the dissolution of a marriage shall be made absolute
till after the expiry of six months from the pronouncing

thereof, if no appeal has been filed within that period, or if any appeal, including an appeal to the Supreme Court,
has been filed, until after the decision thereof.

820. Application for decree absolute how made.—

(1) An application to make absolute a decree nisi shall be made to the court by filing a praecipe stating that the
application is made for such decree absolute and requesting that a time may be appointed for the purpose
of pronouncing it in open court. The Prothonotary and Senior Master shall then fix the time when the matter
will be placed on board for decree absolute. Before the day fixed for passing the decree absolute, the
applicant shall file an affidavit stating that no proceedings for the dissolution of the marriage have been
instituted and are pending in any court and shall also file a certificate of the Prothonotary and Senior
Master certifying that an affidavit proving service of the decree nisi on the respondent has been filed and
that no person has intervened or obtained leave to intervene in the suit and that no appearance or
vakalatnama has been entered nor any affidavits filed on behalf of any person wishing to show cause
against the decree nisi being made absolute. In case leave to intervene has been obtained or appearance
or vakalatnama entered or affidavits filed on behalf of such person, the certificate shall state what
proceedings, if any, have been taken thereon and what is the result thereof.
(2) If more than twelve calendar months have elapsed since the date of the decree nisi, an affidavit by the
petitioner giving reasons for the delay shall be filed.
(3) Where under rule 814 above, it is not necessary to file an affidavit proving service of the decree nisi the
applicant may not file the certificate of the Prothonotary and Senior Master regarding filing of the affidavit
proving service.

821. Decree absolute, appearance not necessary.—On the date appointed for the purpose the suit shall be
placed on board for decree absolute, and on the suit being called on, the decree nisi shall be made absolute
without any application being made to the court either by the party or by his Advocate.

Alimony, Maintenance and Custody of Children

822. Application for alimony, custody and maintenance of children.—Where there is a controversy as to
alimony or the custody and maintenance of children, such matter shall be disposed of by a separate application to
the Judge taking matrimonial causes in Chambers.

Removal of child outside jurisdiction.—Any order relating to the custody of children, shall direct that the child to
remain in the custody of the party to whom such custody is given until further order of the court and be not removed
out of the jurisdiction of the court without its sanction.
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823. Provision for wife’s costs.—A wife, whether she be the petitioner or the respondent, may apply by Chamber
Summons that provision may be made for her costs up to and of and incidental to the hearing of the suit and the
Judge may on such application order the husband to pay into court a sum sufficient to cover such costs or to give
security for the same. If the sum be paid into Court, the wife may apply to the Prothonotary and Senior Master to
pay the amount of costs to her or to her Advocate on record. The court may, however, where the wife is possessed
of sufficient means of her own, refuse to pass any order under this rule.

Nothing in this rule shall disentitle a wife in whose favour decree nisi for dissolution of marriage or a decree for
nullity of marriage is pronounced to the full costs of the suit against the respondent.
(4) DIVORCE (DISTRICT COURT) RULES, 1929

Rules framed by the Bombay High Court under section 62 of the indian divorce Act, 1869, relating to the Procedure
of District Courts, and of the High Court in cases for confirmation of the district Court’s decree

272. Short title and commencement.—

(1) These Rules may be called the Divorce (District Court) Rules, 1929.
(2) They shall come into force on the 30th day of June, 1929.

Petition

(3) All petitions under sections 10, 18, 23, 27, 32 or 34 of the Indian Divorce Act, 1869 (hereinafter called ‘the
Act’), shall be accompanied by a certified copy of the certificate of the marriage, if such a certificate is
available to the petitioner.
(4)
(1) In the body of a petition under sections 10, 18, 23, 27, 32 or 34 of the Act shall be stated—
(i) whether the petitioner professes the Christian religion;
(ii) the place and date of the marriage and the name, status and domicile of the wife before the
marriage;
(iii) the status of the husband and his domicile at the time of the marriage and at the time when the
petition is presented and his occupation and the place or places of residence of the parties at the
time of institution of the suit;
(iv) the principal permanent addresses where the parties have cohabited including the address where
they last resided together in India;
(v) whether there is any living issue of the marriage, and if so the names and dates of birth or ages of
such issues;
(vi) whether there have been in the Divorce Division of the High Court of Justice in England or in the
Court of Session in Scotland or in any Court in India, any, and if so what, previous proceedings
with reference to the marriage by or on behalf of either of the parties to the marriage, and the result
of such proceedings;
(vii) the matrimonial offences charged set out in separate paragraph with the times and places of their
alleged commission;
(viii) the claim for damages, if any;
(ix) the grounds on which the petitioner claims that the District Court, in which the petition is presented,
has jurisdiction to determine the petition;

and, if the petition is one for a decree of dissolution of marriage or of nullity of marriage, or of judicial
separation, it shall further state that there is not any collusion or connivance between the petitioner and
the other party to the marriage.
(2) The petition shall conclude with a proper setting out particulars or the relief claimed, including the
amount of any claim for damages and any order for custody of children which is sought and shall be
signed by the petitioner:
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Provided that where the petitioner is by reason of absence or for other good cause unable to sign the
petition, it may be signed by any persons duly authorized by him or her to sign the same or to sue on
his or her behalf.

Verification of petition

(5) The statement contained in every petition shall be verified by the petitioner or some other competent
person in manner required by the Code of Civil Procedure for the time being in force for the verification of
plaints.

Co-respondents and interveners

(6) In every petition presented by a husband for the dissolution of the marriage the petitioner shall make the
alleged adulterers co-respondents in the suit, unless the court shall otherwise direct under section 11 of the
Act.
(7) Where a husband is charged with adultery with a named person, certified copy of the pleading containing
such charge shall, unless the court for good cause shown otherwise directs, be served upon the person
with whom adultery is alleged to have been committed accompanied by a notice that such person is
entitled, within the time therein specified, to apply for leave to intervene in the cause.

Service of petitions and notices

(8) Every petition or notice under the Act shall be served on the party to be affected thereby either within or
without India, in the manner prescribed by the Code of Civil Procedure for the time being in force for the
service of summonses:

Provided that, unless the court for good cause shown otherwise directs, service of all such petitions and notices
shall be effected by delivery of the same to the party to be affected thereby and the court shall record that it is
satisfied that service has been so effected:

Provided also that the court may dispense with such service altogether in case it seems necessary or expedient
to do so.

Answer and subsequent pleadings

(9) A respondent or co-respondent or a woman to whom leave to intervene has been granted under rule 6,
may file in the court an answer to the petition.
(10)
(1) Any answer which contains matter other than a simple denial of the facts stated in the petition shall be
verified in respect of such matter by the respondent or co-respondent as the case may be in the
manner required by these rules for the verification of the petition, and when the respondent is husband
or wife of the petitioner, the answer shall contain a declaration that there is not any collusion or
connivance between the parties.
(2) Where the answer of a husband alleges adultery and prays relief a certified copy thereof shall be
served upon the alleged adulterer, together with a notice to appear in like manner as a petition. When
in such case no relief is claimed, the alleged adulterer shall not be made a co-respondent, but a
certified copy or the answer shall be served upon him together with a notice as under rule 6 that he is
entitled within the time therein specified to apply for leave to intervene in the suit, and upon such
application he may be allowed to intervene, subject to such directions as shall then be given by court.
(11)
(1) If it appears to the court that proceedings for the dissolution of the marriage have been instituted in
England or Scotland before the date on which the petition was filed in India, the court shall either
dismiss the petition or stay further proceedings thereon until the proceedings in England or Scotland
have terminated, or until the court shall otherwise direct.
(2) If it appears that such proceedings were instituted after the filing of the petition in India, the court may
proceed subject to the provisions of the Act with the trial of the suit:
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Provided that unless the court for good cause shown otherwise directs service of all such petitions and
notices shall be effected by delivery of the same to the party to be affected thereby, and the court shall
record that it is satisfied that service has been so effected:

Provided also that the court may dispense with such service altogether in case it seems necessary or
expedient to do so.

Judgment

(12) Every judgment granting a decree for dissolution of marriage, nullity of marriage, or judicial separation,
shall record clear finding as to the facts which give the court jurisdiction to pass the decree, and the court
for this purpose should take care to see that sufficient and proper evidence is adduced in the course of the
proceedings to enable it to record such findings.

Confirmation of Decree for dissolution of marriage, or nullity of marriage

(13) When the District Judge has made a decree for dissolution of marriage or of nullity of marriage, a copy
thereof shall be served on the respondent and co-respondent within a month from the date of the decree
and the parties shall be informed that the case for confirmation of the decree will come in the High Court on
or after six months from the date of the decree and that no further notice of the date of hearing will be
given. They shall at the same time be warned that a re-marriage before six months from the date on which
the decree is made absolute by the High Court is prohibited by section 57 of the Act and that such re-
marriage is liable under section 19 to be declared a nullity.
(14) The District Judge shall then submit the proceedings to the High Court for orders under section 17 or
section 20, as the case may be.
(15) Cases for confirmation of a decree received from a District Judge under sections 17 and 20 of the Act shall
not be heard by the High Court till after the expiry of six months from the pronouncing of such decree.
(16) After the period of six months mentioned in rule 14 has expired, the decree may be confirmed even though
no application for that purpose has been made to the court; or no party appears at the hearing.
(17) Any person wishing to show cause against the confirmation of the District Judge’s decree on the ground
that the decree has been obtained by collusion or by reason of material facts not being brought before the
court, or because of any change of circumstances since the passing of the decree such as that the parties
have resumed the relation of husband and wife or that the petitioner has died, shall, if the court so permits,
enter an appearance in the proceedings before the High Court and the affidavits setting forth the facts
upon which he relies. Certified copies of the affidavits shall be served upon the party or the Advocate of the
party in whose favour the decree has been pronounced.
(18) Any person applying under the last paragraph of section 17 of the Act to the High Court to remove the suit
from the Court of a District Judge may file an application for the purpose supported by an affidavit setting
forth the grounds on which the applicant relies. Copies of the application and affidavit shall be served on all
parties to the suit who may, within a time to be fixed by the High Court, file affidavit in reply, and the High
Court shall then make such further orders in the matter as it deems fit.
(19) The party in the suit in whose favour the decree has been pronounced may within a time to be fixed by the
court file affidavits in answer and the person showing cause against the decree being confirmed may,
within a further time to be fixed, file affidavit in reply.

Alimony, maintenance and custody of children

(20) The District Court shall not entertain an application for alimony, maintenance of, the custody of children or
for the modification or discharge of the order for alimony, maintenance or the custody of children unless the
person on whose petition the decree for the dissolution of the marriage was pronounced is at the time the
application is made resident in India.

(5) RULES FOR THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY

BOMBAY HIGH COURT (ORIGINAL SIDE)

RULES, 1980
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APPENDIX I

APPENDIX IV

1. Definitions.—In these rules,—

(a) “The Act” means the Parsi Marriage and Divorce Act, 1936 (3 of 1936);
(b) “The Court” means the Parsi Chief Matrimonial Court at Bombay;
(c) “The Judge” means the Judge appointed under section 19 of the Parsi Marriage and Divorce Act, 1936;
(d) “The Code” means the Code of Civil Procedure, 1908.

2. Procedure.—All proceedings of the court under the Act shall be held before the Judge appointed under section
19 of the Act and shall be regulated by the provisions of the Code, save in so far as such provisions may be varied
or modified by these rules.

3. Appointment of Registrar.—The Chief Justice of the High Court at Bombay shall appoint a person as
‘Registrar’ of the court to perform the ministerial functions of the court.

4. Verification of plaints, etc.—All plaints, written statements, counter-claims, replies, applications, petitions
answers, affidavits and other documents under the Act or under these rules shall be verified, within the local limits
of the court’s jurisdiction, before the Registrar or before the Master or one of the Assistant Masters, or Associates
on the original side of the High Court or before the Deputy Registrar or Assistant Registrar on the appellate side of
the High Court, and elsewhere in India before a court or an officer specified in section 139 of the Code.
5. Vakalatnama or appearance to be filed.—
(a) Where a party is represented by an Advocate, the Advocate shall file a vakalatnama.
(b) Where a party appears in person, he shall file an appearance stating that he appears in person.

INSTITUTION OF THE SUIT

plaints

6. Plaint.—
(1) The plaint and the documents annexed thereto shall be typed, cyclo-styled or printed with double spacing
between the lines in the English language on durable foolscap paper with an inner margin of about four
centimetres wide.
(2) The following documents shall be annexed to the plaint, viz., (i) list of documents on which the plaintiff
relies and (ii) exhibits or copies of exhibits. If an exhibit is in a language other than English, neither the
original nor a copy thereof shall be annexed, but an official translation of such exhibit shall be annexed to
the plaint. The pages of the plaint with all its annexures shall be numbered serially. Appendix shall be
prepared of the plaint and its annexures.
(3) Exhibits annexed to the plaint shall be marked separately and not collectively. Every exhibit shall
commence on a new page and shall bear a separate mark in serial order, such as, Ex. “A”, Ex. “B” and so
on. Reference to the exhibit mark shall be given in the margin of the plaint where the particular annexure is
referred to.
(4) The plaint with its annexures shall be stitched together book-wise in the following order, viz., (i) index, (ii)
plaint, (iii) vakalatnama, (iv) list of documents on which the plaintiff relies and (v) exhibits or copies of
exhibits.
(5) The dates and amounts mentioned in the plaint be expressed in figures and sums of money in rupees and
paise. When Indian dates are given, the corresponding English date shall also be added.
(6) The plaint shall be divided into paragraphs numbered consecutively and shall contain the particulars
required by Order VII, rules 1 to 8 of the Code.
(7) Every alteration, interlineation and erasure in the plain shall be authenticated by the initials of the officer
before whom it is declared.
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7. Averments in the plaint.—The plaint shall state clearly the acts or omissions complained of, giving particulars
as regards time and place wherever possible, and shall also aver all facts as are necessary to make the suit
maintainable and to bring it within the time allowed by law. The plaint shall also state the facts showing how the
court has jurisdiction to try the suit.

8. Certified copy of decree or order in certain cases to be filed with plaint.—Where a plaintiff sues for divorce
on the ground mentioned in clause (h) or (i) of section 32 of the Act, he or she shall file with the plaint a certified
copy of the decree or order for judicial separation, or the decree for restitution of conjugal rights, or the order for
separate maintenance, as the case may be, on which he or she relies.

9. Leave of the court to sue.—

(1) Leave of the court to sue, under sub-section (3) of section 29 of the Act, shall be obtained on an ex parte
application made to the Judge (in Chambers) at the time of presentation of the plaint.
(2) The application shall be accompanied by the plaint intended to be filed and shall be supported by an
affidavit made by the plaintiff setting out the grounds on which the leave is asked for.
(3) The Judge may grant the leave, or may reject the application and return the plaint for being presented to
the proper court.
(4) A copy of the order granting the leave shall be served on each of the defendants along with the writ of
summons.
(5) If the defendant desires to have the leave revoked, he shall apply by Chamber Summons supported by
affidavit to the Judge in Chambers. Such application shall be made before filing the written statement or
before the time to file the written statement expires, whichever is earlier. Where the defendant has made
such application, the order granting leave shall for the purpose of the proviso to section 47 of the Act be
taken to have been made on the date on which the Chamber Summons is decided.

10. Application dispensing with the joinder of co-defendant.—

(1) In every suit for divorce or judicial separation on the ground of adultery, where the plaintiff does not desire
or is unable to make the person with whom the adultery is alleged to have been committed a co-defendant
to the suit, the plaintiff shall apply ex parte to the Judge (in Chambers) for leave to dispense with the
joinder of the co-defendant. Such application shall be accompanied by the plaint intended to be filed.
(2) The Judge may require the plaintiff to serve a copy of such application upon the defendant, and after
hearing the parties may pass such orders as he may deem proper.

11. Appointment of next friend or guardian.—Where any party to a proceeding in the court is under the age of
twenty-one years, he or she shall be represented by a ‘next friend’ or a ‘guardian ad litem’ as the case may be, in
the manner prescribed in Order XXXII of the Code.

12. Affidavits to be received and acted on.—In respect of any application under the Act or under these rules the
Judge may receive in evidence and act upon affidavits which are duly sworn and filed.

Writ of Summons

13. Writ of summons to defendant.—

(1) The writ of summons to the defendant shall require the defendant to file his or her written statement with
the registrar within a period of four weeks from the service of the summons or within such extended period
as the Judge may on the defendant’s application allow, and to serve a copy of the written statement upon
each of the other parties to the suit, within the aforesaid period.
(2) The writ of summons shall be accompanied by a copy of the plaint.

14. Returnable date of summons.—Unless otherwise ordered, the writ of summons shall be made returnable as
follows:—
(1) if the defendant resides within the local limits of the jurisdiction of the court, within six weeks from the date
of the admission of the plaint;
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APPENDIX I

(2) in all other cases, within such time as the Judge may consider sufficient for the transmission, service and
return of the summons.

15. Service of summons.—

(1) The writ of summons shall be served in the manner provided for service of summons in Order V of the
Code or, where necessary, by registered post.
(2) Undertaking by Advocate.—The writ of summons need not be served on a defendant personally if his, or
her Advocate undertakes in writing to accept service and to file a vakalatnama.
(3) number of writs for such service.—If such Advocate represents a defendant and a co-defendant, it shall be
sufficient to take out and serve only one writ of summons upon him.

Written Statement

16. Filing and service of written statement.—

(1) The defendant shall file with the Registrar a written statement, and shall serve a copy thereof upon each of
the other parties to the suit, within the period mentioned in rule 13(1).
(2) Leave of the Judge when necessary.—No written statement shall be received by the Registrar after such
period without the leave of the Judge.
(3) Default of filing written statement.—In default of filing the written statement and serving a copy thereof
within the period aforesaid the court may proceed ex parte on the day appointed for hearing the suit
against the defendant:
Provided that such defendant may be allowed to appear and defend at the trial with the leave of the Judge, and
upon such terms as to the filing of his or her written statement, furnishing a copy thereof, giving discovery,
payment of cost, or any other terms as the Judge may think proper.

Counter-claim and Reply

17. Counter-claim by defendant.—

(1) Where a defendant in his written statement desires to make a counter-claim under section 37 of the Act, such
counter-claim shall be distinctly and specially pleaded.

(2) title of counter-claim.—In every such case the defendant shall add to the title of his written statement a further
title, similar to the title in a plaint, setting forth his own name as plaintiff to the counter-claim and the name of the
plaintiff to the suit as the defendant to the counter-claim.

(3) Effect of counter-claim.—Such counter-claim shall have the same effect as a cross-suit so as to enable the court
to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, and the
provisions hereinabove made with respect to plaints shall, as far as may be, apply to counter-claims.

18. Judge may disallow counter-claim.—On the application of any defendant to a counter-claim, made to the
Judge (in Chambers) before the hearing—the Judge may, if in his opinion such counter-claim ought not to be
allowed to be tried along with the claim in the suit, exclude the counter-claim, and require the defendant to file a
fresh suit in respect thereof.

19. Joinder of co-defendant to counter-claim.—Where defendant by his counter-claim alleges adultery on the
part of the plaintiff, he or she shall make the person with whom the adultery is alleged to have been committed a co-
defendant to the counter-claim; but the provisions of rule 10 shall, with any necessary modifications, apply to such a
case.

20. Service of summons on co-defendant to counter-claim.—The co-defendant to a counter-claim shall be

summoned in the same manner as a defendant to a suit, and the provisions of rules 13 and 15 shall, with any
necessary modifications, apply, except that the writ of summons shall be accompanied by a copy of the written
statement containing the counter-claim.

21. Reply of the defendant to counter-claim.—Each defendant to the counter-claim shall file and deliver a reply
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APPENDIX I

in the same manner and within the same period as in the case of a written statement; and all the provisions with
respect to a written statement shall, as far as may be, apply to a reply to a counter-claim.

Alimony pendente Lite

22. Application for alimony pendente lite.—

(1) In all matrimonial suits under the Act, except suits under section 31, the wife may file with the registrar an
application for alimony pendente lite under section 37 of the Act.
(2) Such application shall be made—
(i) where the wife is the plaintiff, after service of the writ of summons upon the husband, and
(ii) where the wife is the defendant, after filing her written statement admitting the fact of the marriage.

23. Service of such application on husband.—

(1) After an application for alimony has been filed, a copy thereof shall be served forthwith upon the husband,
and within fourteen days after such service he shall file his answer thereto, which shall be subscribed and
verified in the manner provided in rule 4 and in default the court may proceed ex parte.
(2) Wife’s application to Court for order.—After the answer of the husband has been filed, the wife may apply
to the court to pass an order for alimony pendente lite, provided that the wife shall, four days before she so
moves the court, give notice to the husband or to his Advocate of her intention to do so.

24. Varying, modifying or rescinding of order for alimony pendente lite.—The Judge may, upon application by
either party, from time to time vary, modify or rescind any order made on the application for alimony pendente lite in
such manner as he may deem proper, if he is satisfied that there is a change in the circumstances of the parties
which warrants a variation, modification or rescission. A copy of such application shall be served upon the other
party, and the application shall be heard in Chambers after service thereof on such day as the Judge may fix.

Empanelling delegates

25. Empanelling delegates.—The Registrar shall write the name of each delegate who shall be summoned on a
separate piece of paper or card of equal size, and shall put the same in a box and shall, on the day of the hearing
and in the presence of the parties and/or their Advocates, draw from the said box the said pieces of paper or cards
indiscriminately one after the other, and the names of the first seven that shall be drawn out and appear and are not
challenged or excused shall be deemed duly elected to aid in the trial of a suit.

Application for permanent alimony, custody of children, etc., on decree

26. Application for permanent alimony, custody of children, etc.—

(1) Application for—
(i) permanent alimony;
(ii) disposal of joint property;
(iii) maintenance, education and custody of children or access to them; and
(iv) settlement of the wife’s property for the benefit of the children, shall be made to the Judge as soon as
may be convenient after the judgement in the suit has been pronounced.
(2) A copy of the application shall be served upon the husband or such parties likely to be affected by it as the
Judge may direct.
(3) The application shall after service thereof be heard in Chambers on such day as the Judge may fix.

27. Stay of application and making of interim orders.—Where an appeal from the decree in the suit is pending,
every application under rule 26 shall be stayed until after the disposal of the appeal. But the Judge may, in that
event, make such interim orders for alimony or for the maintenance, education and custody of children or access to
them as he could have made, if the application had been made pending the hearing of the suit.

28. Power of the Judge to pass consent order.—Nothing in rule 26 shall preclude the Judge from passing, at the
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APPENDIX I

time of pronouncing judgment in the suit, any consent order with regard to permanent alimony, disposal of joint
property, maintenance, education and custody of children or access to them, or settlement of the wife’s property for
the benefit of the children.

29. Procedure to vary, modify, rescind or suspend order for permanent alimony, etc.—
(1) Where an order for permanent alimony or for maintenance, education and custody of children or access to
them has been made, any subsequent application to vary, modify, rescind or suspend such order shall be
made by petition.
(2) The petition shall state specifically the change in the circumstances of the parties or in the position of the
children, which renders such petition necessary.
(3) A certified copy of the order sought to be varied, modified, rescinded or suspended shall be annexed to the
petition.
(4) Unless otherwise order by the Judge, the petition along with the notice of the day fixed for the hearing
thereof shall be served on the other side, eight clear days before the date of hearing. The affidavit in reply
shall be filed and a copy thereof furnished to the petitioner within four days from the service of the notice
and the affidavit in rejoinder, if any, shall be filed and copy thereof furnished to the other side within three
days thereafter. The petition shall be heard in Chambers.

Decrees and Orders

30. Drawing up decrees and orders.—

(1) A decree or order passed by the court shall be drawn up by the party initiating the proceedings, unless the
Judge passing the decree or order otherwise directs. Such party shall lodge a draft of the decree or order
with the Registrar within a period of 10 days from the date of the said decree or order and shall apply to fix
a meeting to settle the draft. Such party shall forthwith forward copies of the draft to all parties, who
appeared at the hearing of the suit or matter. The Registrar shall check the draft and make such alterations
in the draft as he may consider necessary and warranted by the directions of the court. After the draft is
checked, the Registrar shall fix a date for setting the draft, but ordinarily not earlier than 10 days after the
date of the lodging of the draft. A notice shall be put on the notice-board of the court intimating to the
parties the date fixed for settlement of the draft. No other notice shall be given of the date so fixed, except
that when a party has appeared in person, the party lodging the draft shall send notice of the meeting to
him. Any party desiring to inspect the draft as checked by the Registrar shall be entitled to do so on an oral
application to the registrar. The draft shall be finally settled by the registrar.
(2) If the party whose duty it is to be drawn up the decree or order does not lodge the draft with the Registrar
within 10 days from the date of the decree or order, then it shall be open to any other party to the
proceeding to draw up and lodge such decree or order. Thereafter the procedure prescribed in sub-rule (1)
shall be followed.
(3) In case the party initiating the proceedings in a party in person, the decree or order shall at his request be
drawn up by the Registrar. The Registrar shall give notice of the draft being ready to the party in person
and also to all parties who appeared at the hearing of the suit or matter and shall put up a notice on the
notice-board of the court intimating the date fixed for the settlement of the draft. Any party desiring to
inspect the draft shall be entitled to do so on an oral application to the Registrar. The draft shall be finally
settled by the registrar.
(4) In case neither party lodges the draft of the decree or order within a period of 20 days from the date of the
decree or order, the Registrar shall draw up the same. The Registrar shall give notice of the draft being
ready to all parties who appeared at the hearing of the suit or matter, and shall intimate to them the date
fixed for settling the said draft. He shall also put up a notice on the notice-board of the court intimating the
date fixed for the settlement of the draft. Any party desiring to inspect the draft shall be entitled to do so on
an oral application to the registrar. The draft shall be finally settled by the Registrar.
(5) All decrees and orders shall be engrossed by the Registrar and shall be signed by him and sealed with the
seal of the court.

31. Errors how rectified after decrees sealed.—After a decree or order has been sealed, any application to
rectify an inaccuracy or clerical or arithmetical error shall be made to the Registrar and he may, in his discretion
after notice to the parties when he deems it necessary, rectify such inaccuracy or error. The registrar may, if he
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APPENDIX I

thinks fit, place the matter before the Judge who passed the decree or order or in the event of his absence on leave
or retirement, before any other Judge appointed by the Chief Justice in this behalf and the Judge may, in his
discretion, after notice to the parties when he deems it necessary, amend the decree or order so as to bring it into
conformity with the judgment or rectify such inaccuracy or error.

Appeals

32. Appeals.—Appeals to the High Court of Judicature at Bombay under section 47 of the Act shall be commenced
by filing with the Prothonotary and Senior Master of the High Court a memorandum of appeal, together with an
extra copy thereof.

33. Procedure to be followed.—Except as otherwise provided in these rules, the procedure in respect of appeals
from decisions of the High Court in the exercise of its

Original Civil Jurisdiction shall, so far as it may be applicable, be followed in respect of appeals under the Act.

34. No security to be taken from the appellant.—The appellant shall not be required to deposit any amount as
security for the costs of the respondent in the appeal.

35. Prothonotary and Senior Master to send for record of the case and to return the same on disposal of
appeal.—On the filing of the memorandum of appeal, the Prothonotary and Senior Master shall send for the record
of the case from the Registrar of the Court and on the disposal of the appeal shall return the record to the Registrar,
together with a certified copy of the decree or order of the Appellate Court.

Registration of divorce, etc.

36. Registration of divorces, etc.—The registrar shall send a certified copy of every decree for divorce, nullity or
dissolution of marriage to the Registrar of Marriages of the place at which the marriage is registered. The said
certified copy shall be sent as soon as possible after the expiration of three months from the date of the decree. If,
however, an appeal is filed against the decree, the registrar shall send the said certified copy together with a
certified copy of the decree of the Appellate Court soon after such copy is received from the Appellate Court.

Forms

37. Forms.—The forms contained in Schedule I to these rules with such variations as the circumstances of each
case may require shall be used for pleadings and proceedings under the Act.

Fees, Costs and taxation

38. Fees, costs, etc.—The fees set forth in the Table of Fees in Schedule II to these rules shall be levied and
allowed in cases tried under the Act, unless the Judge otherwise directs.

SCHEDULE I TO APPENDIX IV

(PARSI CHIEF MATRIMONIAL COURT)

FORM NO. 1

PLAINT IN A SUIT FOR DIVORCE

IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY SUIT NO. ...........OF.........20.........

....................................................................................................................................................Plaintiff

versus

................................................................................................................................................Defendant

The Plaintiff above-named states as follows:

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APPENDIX I

1. The plaintiff was on the........................day of............................. 20........................... lawfully married

to..........................the defendant at..............................
2. After his said marriage the plaintiff lived and cohabited with his wife at and at..............................and the
plaintiff and his said wife have had issue of their marriage namely......................
3. On the.........................day of.............................. 20.................. and on other days between that day and
the.........................day of........................20.........the defendant committed adultery
with........................at........................ (here mention place or places)
4. There is no collusion whatever between the plaintiff and the defendant and.........................or either of them
in respect of the suit.
5. The plaintiff has not condoned the act or omission of the defendant set out in paragraph .............................
nor has the plaintiff connived at or been accessory to the said act or omission.
6. There has been no unnecessary or improper delay in instituting the suit.
7. The defendant resides (or the defendant has left India and the plaintiff and the defendant last resided
together) at....................... within the jurisdiction of this Hon’ble Court.

The plaintiff therefore prays that............................. (here state the relief sought)

Note. —If the plaintiff does not desire to make the person with whom adultery is alleged to have been committed a
co-defendant, a prayer that the court may order accordingly should be added.

I, ..........................................., the plaintiff above-named, solemnly declare that what is stated in

paragraphs.............................is true to my own knowledge and that what is stated in the remaining
paragraphs..............................is stated on information and belief and I believe that same to be true.

Solemnly declared at Bombay, aforesaid, this...................day of.................................. 20......... before me.

FORM No. 2

PLAINT IN A SUIT FOR NULLITY OF MARRIAGE

IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY

SUIT NO. ..........OF 20......

...................................................................................................................................................Plaintiff

versus

................................................................................................................................................Defendant

The plaintiff above-named states as follows:

1. The plaintiff, then a spinster, was on the..........day of ......................... 20.......... married in fact, through not in law,
to the defendant, then a bachelor, at..............................

2. From the said.....................day of.............. 20 ................... until the ......................... day of ...........................
20...................... the plaintiff lived with the defendant at diverse places and particularly
at..............................aforesaid.

3. The defendant has never consummated the said pretended marriage by carnal copulation.

4. At the time of the celebration of the plaintiff’s said pretended marriage, the defendant was, by reason of his
impotency or malformation, legally incompetent to enter into the contract of marriage.

5. There is no collusion between the plaintiff and the defendant with respect to the subject-matter of this suit.
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APPENDIX I

6. The plaintiff has not condoned the omission of the defendant set out in paragraph.............................. nor has the
plaintiff connived at or been accessory to the said omission.

7. There has been no unnecessary or improper delay in instituting the suit.

The plaintiff prays that....................... (here state the relief sought)

I, .............................the plaintiff above-named, solemnly declare that what is stated in

paragraphs..............................is true to my own knowledge and that what is stated in the remaining paragraphs
.............................. is stated on information and belief and I believe the same to be true.

Solemnly declared at Bombay, aforesaid, this...................day, of........................ 20......... before me.

FORM No. 3

WRITTEN STATEMENT IN A SUIT FOR NULLITY OF MARRIAGE

IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY

SUIT NO. ..................OF 20......

....................................................................................................................................................Plaintiff

versus

................................................................................................................................................Defendant

Written Statement of the defendant above-named

The defendant above named states as follows:

The defendant did consummate the marriage between the plaintiff and the defendant solemnized on
the..............................day of ..............................20........and the defendant was at the time of the said marriage and
from thence upto now has been and still is capable of consummating the said marriage and is willing to submit to
medical examination.

The defendant prays that the suit be dismissed.

I,..............................the defendant above-named, solemnly declare that what is stated in

paragraphs..............................is true to my own knowledge and that what is stated in the remaining paragraphs
.............................. is stated on information and belief and I believe the same to be true.

Solemnly declared at Bombay, aforesaid, this...................day, of........................... 20......... before me.

FORM NO. 4

PETITION FOR ALIMONY

IN THE PARSI CHIEF MATRIMONIAL COURT AT BOMBAY

SUIT NO. OF 20

.................................................................................................................................................... Plaintiff

versus

................................................................................................................................................ Defendant

and
 Page 35 of 245
APPENDIX I

..................................................................................................................................................petitioner

(plaintiff)

versus

...............................................................................................................................................Respondent

(defendant)

The Petition of the Petitioner above-named to this Hon’ble Court Showeth:

1. That the respondent (defendant) above-named is employed in the firm of and is earning a salary of Rs.
............ per month.

OR

That the respondent is carrying on business in the name of.........................or is a partner in the firm
of..............................and his income is about Rs...............................per annum.
2. That the respondent owns shares of the following companies (give particulars) of the total value of
Rs............................... and receives dividends of about Rs............................... per annum.
3. That the respondent has other property, movable and immovable ..................... (give particulars) which
yield to him an annual income of about Rs...............................

The petitioner therefore prays that the respondent may be ordered to pay to the petitioner by way of alimony
pendente lite (or permanent alimony) Rs........... .................... per month or such sum as to this Hon’ble Court may
seem just.

I, ................................................................................................................... the petitioner above-named, swear in the name

of God⁄solemnly affirm that what is stated in paragraphs............is true to my own knowledge and that what is stated in

the remaining paragraphs....................... is stated on information and belief and I believe the same to be true. swear in
the name of God⁄solemnly affirm at Bombay, aforesaid, this................... day of......................... 20......... before me.

SCHEDULE II

TABLE OF FEES

The following fees only shall be levied and allowed in cases tried under Act 3 of 1936:

Rs. P.

1. For every plaint … … … As prescribed from

time to time by the
law in force
relating to Court-
Fees.

2. For every other … … … 0.50

document

3. For issuing every … … … 1.00

summons and
subpoena

4. For drawing and … … … 5.00

engrossing every
decree or order

5. For sealing every … … … 1.00

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APPENDIX I

document

6. For administering … … … 1.00

oath

7. For serving … … … 0.50

process

8. For attendance of … … … 45.00

Advocate on the
day of presenting
plaint or written
statement

For attendance at
settlement of
issues (if not
settled at the
hearing of the suit)
or hearing of any
contested
motion—

9. For Advocate … … … 60.00

For attendance at
the hearing of the
suit on the first
day—

10. For Advocate … … … 75.00

For attendance for

each succeeding
day—

11. For Advocate … … … 60.00

12. For taxing bill of … … … 4.00

costs

13. Costs of execution … … … 45.00

14. For allowing … … … 1.00

search in
proceedings

Charges for
professional
witnesses—

15. Brigade Surgeon … … … 100.00

16. Surgeon Major … … … 75.00

17. Surgeon … … … 50.00

18. Assistant Surgeon … … … 50.00

over 20 years’
standing

19. Assistant Surgeon … … 25.00

under 20 years’
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APPENDIX I

standing

Costs of necessary translations will also be allowed. Costs between party and party will be taxed by the Registrar of
the Court.

5. CALCUTTA HIGH COURT

(1) THE HINDU MARRIAGE ACT (CALCUTTA HIGH COURT) RULES, 1957

1. These rules may be called the Hindu Marriage Act (Calcutta High Court) Rules,
2. In these rules, unless there is anything repugnant in the subject or context,—

The “court” means the Judge sitting in court.

3.
(i) Where a petition for dissolution of a marriage by a decree of divorce is presented before the expiry of
three years from the date of the marriage, the petitioner shall ask for the leave of the court to present
the petition by a separate application.
(ii) Every such application shall state in full the facts on which the petitioner wishes to rely for proof of the
ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent,
and shall also contain full particulars of the children of the marriage including age, sex and the place
where, or the person or persons with whom, they are living. Such statement shall be fully verified by
the applicant personally and when it is not so verified but verified by a different person, the reason
therefor shall be stated:

Provided that if, before this rule comes into force, any petition for divorce has already been presented
before the expiry of three years from the date of the marriage, the court will deal with such petition in
such manner as it deems fit.
4.
(i) The rules as regards the institution and trial of suits and as regards the execution of decrees and
orders on the original side of the High Court shall apply, insofar as they are applicable, and shall be
deemed to have always applied, to proceedings under the Hindu Marriage Act instituted on the original
side of the High Court.
(ii) The City Civil Court Rules, 1956, shall apply, insofar as they are applicable, and shall be deemed to
have always applied, to proceedings under the Hindu Marriage Act instituted in the City Civil Court.

(2) THE SPECIAL MARRIAGE ACT (CALCUTTA HIGH COURT) RULES, 1955

1. These rules may be called the Special Marriage Act (Calcutta High Court) Rules, 1955.
2. In these rules, unless there is anything repugnant in the subject or context—
(i) the “Act” means the Special Marriage Act, 1954 (43 of 1954), as from time to time modified or
amended; and
(ii) the “court” means the Judge sitting in court.
3. Every petition for divorce or for judicial separation or for declaration of the nullity of a marriage under the
Act shall be entitled “In the matter of the Special Marriage Act, 1954 (43 of 1954)”, and shall be
accompanied by a certified copy of the certificate of marriage, and shall state—
(i) the names, occupation and domicile of the parties to the marriage, the place of the marriage and the
District Court within the local limits of whose jurisdiction such place is situated, the date of the
marriage, the name and status of the wife before the marriage, the address where; and the District
Court within the local limits of whose jurisdiction, the parties reside or last resided together;
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APPENDIX I

(ii) if the petition is under section 31(2) of the Act, the address at which the wife petitioner has ordinarily
resided during the three years immediately preceding the presentation of the petition, and the length of
her residence at each address, and the place of residence of the husband;
(iii) where there is any living issue or issues of the marriage, and, if so, the name, the date of birth or age
of such child or each of such children, and also that the parentage of any living child or children of the
wife born during the marriage is in dispute, if such be the case;
(iv) whether there have been in any court any, and if so, what previous proceedings with reference to the
marriage by or on behalf of either of the parties to the marriage, and the result of such proceedings;
(v) the matrimonial offences alleged or other grounds, upon which relief is sought, setting out with
sufficient particularly the times and places of the acts alleged, and other facts relied upon but not the
evidence by which they are intended to be proved;
(vi) that there is no collusion between the petitioner and the other party to the marriage.
4. Every petition for divorce or judicial separation, as the case may be shall state—
(i) if the petition is on the ground (h) of section 27 of the Act, the date and the place where the respondent
was last seen or heard of, and the steps which have been taken to trace the respondent;
(ii) if the petition is on ground (i) of section 27 of the Act, the last place of cohabitation of the parties, and
the circumstances in which they ceased to cohabit;
(iii) where the ground of the petition is adultery, that the petitioner has not in any manner been accessory
to or condoned the adultery;
(iv) where the ground of the petition is cruelty, that the petitioner has not in any manner condoned the
cruelty;
(v) where the petition is on the ground of mutual consent, the date and the place where the parties last
lived together, the addresses where each party has since lived, with the period of residence at each
address, the reasons why the parties have not been able to live together, the date when the mutual
agreement was arrived at, and whether such agreement is verbal or evidenced by a document in
writing.

5. Every petition for divorce or judicial separation or declaration of nullity of a marriage shall conclude with a prayer
setting out particulars of the relief claimed, including in the case of a petition for divorce, the amount of claim for
damages, if any, and the particulars thereof, indicating the basis upon which damages have been claimed.

The prayer may also include a claim for one or more of the following reliefs:—
(a) custody of the children of the marriage;
(b) alimony pending suits;
(c) maintenance and educational expenses of minor children.
6. Every petition for divorce under clause (i) or clause (j) of section 27 of the Act shall be accompanied by a
certified copy of the decree for judicial separation or of the decree for restitution of conjugal rights, as the
case may be.
7. Every petition for judicial separation under section 23(1)(b) of the Act shall be accompanied by a certified
copy of the relevant decree for restitution of conjugal rights.
8. Every petition for a declaration of the nullity of a marriage under clause (ii) of section 25 of the Act shall
state whether the petitioner was at the time of the marriage ignorant of the facts stated and whether marital
intercourse with the consent of the petitioner has taken place since the discovery by the petitioner of the
existence of the grounds for a decree.
9. Every petition for a declaration of the nullity of a marriage under clause (iii) of section 25 of the Act shall
state the date when the coercion ceased, or the fraud was discovered, and whether the petitioner has with
his or her free consent lived with the other party to the marriage as husband and wife after the coercion
had ceased or the fraud had been discovered.
10. In every petition for divorce on the ground of adultery, the alleged adulterer shall be impleaded as a co-
respondent:
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APPENDIX I

Provided that the court may, on being satisfied that the petitioner has not been able to ascertain the name and
identity of the alleged adulterer, excuse the petitioner from so impleading him:

Provided further that if after the court has so excused the petitioner the identity of the alleged adulterer is
discovered, the fact must be brought to the notice of the court, and the court shall thereafter pass such order as
it may think fit.
11. Every petition for divorce or judicial separation or for declaration of the nullity of a marriage shall be signed
by the petitioner and where he is represented by a lawyer, also by his lawyer. For the purpose of this rule,
the word ‘lawyer’ shall mean a solicitor, where the petitioner is represented by a solicitor. Such petition
shall be verified in the manner required for the verification of pleadings.
12. Each summons for service on a respondent shall be accompanied by a true copy of the petition.
13. The summons shall be served on each respondent personally by delivery of a copy thereof, together with a
true copy of the petition, through the Sheriff in the High Court and through the ordinary process-serving
staff of civil courts, in all other courts.
14. Where the officer whose duty it is to serve the summons reports that the respondent refused to accept the
copy of the summons presented to him, the court shall order fresh service by registered post:

Provided that the court may, where personal service cannot be effected, substitute any other mode of service
as provided in Order V, rule 20 of the Code of Civil Procedure, 1908.
15. Appearance shall, in the High Court, be entered and notified in accordance with rules 4, 15-20 and 24 of
Chapter VIII of the rules of the original side and in other courts, be entered in accordance with the rules
and practice for appearance in civil suits.
16. Appearance may be under protest and limited to any proceeding in the case in respect of which the party
shall have received notice to appear:

Provided that (a) any appearance under protest shall state concisely the grounds of protest, and (b) the party
appearing under protest shall forthwith proceed to obtain directions as to the determination of the question or
questions arising by reason of such limited appearance, and in default of so proceeding, shall be deemed to
have entered an unconditional appearance. Directions given upon an appearance made under protest may
provide for the trial of preliminary issues, with or without stay of proceedings in the suit, or for determination of
the matter in question at the hearing of the suit.
17. A respondent who has entered an appearance may file an answer to the petition, within such time as
specified by rules framed by the High Court in respect of suits, or within such time as may be allowed by
the court. Such answer shall be signed in the same manner as a petition and verified in manner required
by law for the verification of pleadings.
18. Where in any proceeding on a petition for divorce, the respondent asks for relief under section 35 of the
Act, the answer shall contain particulars of adultery, cruelty or desertion, as if it were a petition, mutatis
mutandis.
19. Where in any proceeding on a petition for divorce, it appears from the answer that the respondent asks for
relief under section 35 of the Act, petitioner may file a reply thereto within fourteen days from the filing of
the answer, or within such further time as may be allowed by the court.
20. Where the answer of a husband alleges adultery by the petitioner, such answer shall state the name,
address and description of the alleged adulterer:

Provided that the court may excuse the husband from stating these particulars, if satisfied that he has been
unable after his best efforts to ascertain them.
21. Where such answer prays for relief under section 35 of the Act, a writ of summons, to which shall be
annexed a true copy of the answer, shall be served on the alleged adulterer, in the same manner as a
summons of a petition for divorce to be served on the respondent; and his name with the description co-
respondent in the claim under section 35 shall be added to the title of the case. The court may however
excuse compliance with this rule, if the identity or whereabouts of the alleged adulterer are not known or
cannot be discovered with due diligence.
22. The alleged adulterer may, within such time form his appearance in court as may be allowed by the court,
file an answer to that of the respondent.
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APPENDIX I

23. Where the answer of a husband alleges adultery by the petitioner but does not claim any relief on that
ground, the answer shall be served on the alleged adulterer in the same manner as provided in rule 21,
and he may, if he so desires, enter appearance and intervene in the proceeding. If he does, his name shall
appear in the title of the case “A.B. Intervener”. The court may, however excuse compliance with this rule if
the identity or whereabouts of the alleged adulterer are not known or cannot be discovered with due
diligence.
24. When a decree for divorce is passed on the ground of adultery, the court may in its discretion award such
damages against the co-respondent found guilty of the adultery, as it may think fit and proper.
25. When an order is made for examination of a witness on commission on the application of the husband, the
wife may apply for security for her costs of the examination at the time of the order or subsequently.
26. At any stage of the proceeding, the wife may apply for an order on the husband to pay into court a
sufficient sum of money to cover her costs of, and incidental to, the hearing of the cause and the Judge
shall thereupon issue an order upon the husband to pay into court such amount as he thinks reasonable,
unless he is satisfied that the wife has sufficient separate estate or that there is other good cause why such
an order should not be made.
27. In all proceedings on the original side of the High Court, under Chapters V, VI and VII of the Act, the rules
framed by the High Court, for the trial of suits (including rules regarding taxation of costs), so far as they
are not inconsistent with the foregoing rules, shall apply and similarly, in all proceedings in other courts the
Code of Civil Procedure and the Civil Rules and Orders shall apply, so far as they are not inconsistent with
the foregoing rules.
28. A proceeding commenced by a petition for divorce or a declaration of the nullity of a marriage or judicial
separation or restitution of conjugal rights shall be deemed to be a suit for the purposes of the Code of Civil
Procedure, 1908.

(3) RULES UNDER THE INDIAN DIVORCE ACT, 1869

Petition and Notice to appear

How proceedings to be originated. Cf. eng., R. 1.

Title:

1. Proceedings under the Act shall be originated by filing a petition to which shall be attached a certificate
copy of the marriage.
A. All such proceedings shall be entitled as follows:

IN THE HIGH COURT OF CALCUTTA

Original Side (Matrimonial Jurisdiction)

In re: The Indian Divorce Act, 1869 (IV of 1869)

Between

A.B. .............................................................................................................................Petitioner

C.D. .........................................................................................................................Respondent

And

X.Y. ....................................................................................................................Co-respondent
B. Contents of petition: In the body of the petition shall be stated:—
(1) the place and date of the marriage and the name, status and domicile of the wife before marriage;
(2) whether the petitioner or respondent professes the Christian religion at the time when the petition
is presented;
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(3) domicile of the husband at the time when the petition is presented, and his occupation and the
place or places of residence of the parties, respectively at the time of the institution of the suit;
(4) the principal permanent address where the petitioner and respondent have cohabited within the
jurisdiction and in particular the place where they last resided together;
(5) whether there is living issue of the marriage, and if so, the names, and dates of birth, or ages, of
such issue;
(6) whether there have been in any Court, and if so, what previous proceedings with reference to the
marriage, by or on behalf of, either of the parties to the marriage, and the result of such
proceedings;
(7) the matrimonial offences charged, set out in separate paragraphs including particulars of the times
and places of their alleged commission.
C. Collusion or connivance: In cases where the petitioner is seeking a decree or nullity of marriage or of
dissolution of marriage, or of judicial separation, the petition shall further state that no collusion or
connivance exists between the petitioner and the other party to the marriage or alleged marriage.
D. prayer of petition: The petition shall conclude with a prayer setting out particulars of the relief claimed,
including the amount of any claim for damages and any order for custody of children which is sought.
E. Signature of petition: Every petition shall be signed by the petitioner. In the case of a minor it shall be
signed both by the minor and by his or her next friend and shall be accompanied by the undertaking
mentioned in section 49 of the Act and by a petition for approval of the next friend by the Court. In the
case of a petition brought under section 48 of the Act it shall be signed by the person bringing the suit.
F. Verification of petition: Pursuant to section 47 of the Act every petition shall be verified in manner
provided by Order VI, rule 15, Civil Procedure Code and rule 12 of Chapter VII of these rules.

Co-respondents

2. Alleged adulterers to be co-respondents.—Cf. eng., R. 4.—In every husband’s petition for dissolution of
marriage on the ground of adultery the alleged adulterers shall be made co-respondents in the suit unless the
Judge shall otherwise direct by order summons supported by affidavit.

3. Respondent includes co-respondent.—Cf. eng., R. 5.—The term “respondent” in these rules shall include a
co-respondent so far as the same is applicable.

Service of Petition

4. Copy of the Petition to accompany writ.—Each writ of summons for service on each respondent shall have
annexed thereto a certified copy of the petition.

5. How served. Cf. Eng., R. 7.—The writ of summons shall be served on each respondent personally by delivery of
a copy thereof together with a certified copy of the petition. The service shall be through the Sheriff. The writ of
summons may not be served by the petitioner.

6. Application for substitute service. Cf. Eng., R. 9.—Where personal service cannot be effected leave to
substitute some other mode of service may be granted upon an application under rule 23 of Chapter VIII of these
rules.

7. Service by advertisement. Cf. Eng. R. 12.—When it is ordered that a writ of summons shall be advertised in the
form of advertisement shall be settled by the Registrar and the newspapers containing the advertisements shall be
filed.

8. Order dispensing with service of petition.—No order dispensing with service of petition upon a party to be
affected thereby shall be made by the Registrar.

9. No trial unless appearance on service.—Cf. Eng., R. 13.—In the absence of any such order a petitioner shall
not proceed to trial unless an appearance has been entered by or on behalf of the respondents or it has been
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shown by affidavit filed with the registrar that they have been duly served with the petition in accordance with rules
4 to 7 hereof. Rule 22 of Chapter VIII of these rules shall apply under this rule.

Appearance

10. Appearance to be entered and notified.—Appearance shall be entered and notified in accordance with rules
15-20 and 24 of Chapter VIII of these rules.

11. Appearance may be limited or under protest.—Cf. Eng. R. 16B.—The appearance may be under protest or
limited to any proceeding in the suit in respect of which the party shall have received notice to appear:

Provided that (a) any appearance under protest shall state concisely the grounds of protest, and (b) the party
appearing under protest shall forthwith proceed by summons to obtain directions as to the determination of the
question or questions arising by reason of such limited appearance and in default of so proceeding shall be deemed
to have entered an unconditional appearance. Directions to be given upon an appearance under protest may
provide for the trial of preliminary issues with or without stay of proceedings in the suit or for determination of the
matters in questions at the hearing of the suit.

Stay of Proceedings for Restitution

12. Application to stay restitution proceedings.—Cf. Eng. R. 20.—At any time after the commencement of
proceedings for restitution of conjugal rights the respondent may apply to the Judge by summons for an order to
stay the proceedings by reason that he or she is willing to resume or to return to cohabitation with the petitioner.

Answer and subsequent proceedings

13. Answer to petition.—Cf. Eng. R. 21.—A respondent who has entered an appearance may within the time
limited by the writ of summons filed with the registrar an answer to the petition. Such answer shall be signed and
verified in the manner required by law for the verification of pleadings.

14. Reply to answer.—Cf. Eng. R. 23.—Where in any suit for the dissolution of marriage it appears from the
answer that the respondent will apply for relief under section 15 of the Act, the petitioner shall file a reply thereto
within fourteen days from the filing of the answer. Save as aforesaid no pleadings subsequent to the answer shall
be delivered except by leave.

15. No answer necessary if question of costs or custody of children.— After entering an appearance a
respondent in a suit may without filing an answer be heard in respect of any question as to costs and respondent
who is husband or wife of the petitioner may be heard also as to custody of or access to children.

Citation and Intervention of Parties

15A. Name of Co-respondent to be stated.—Where the answer of a husband alleges adultery by the petitioner,
such answer shall state the name, address and description of the alleged adulterer.

15B. Where relief prayed for under section 15.—Where such answer prays for relief under section 15 of the Act,
a writ of summons, to which shall be annexed a certified copy of such answer, shall issue for service on the alleged
adulterer and the provisions of Rules 4 to 9 inclusive, and where applicable, all other rules governing petitions, shall
apply to such answer in so far as it alleges adultery by the petitioner and asks for relief.

15C. Addition as a party.—Upon an answer to which rule 15B applies being filed the Registrar shall cause the
name, address and description of the alleged adulterer to be added to the title of the cause with the word “co-
respondent” thereafter.

15D. Appearance and filing of answer.—Appearance shall be entered and notified by the alleged adulterer in
accordance with the rules contained in this chapter and the alleged adulterer may within the time limited by the writ
of summons file with the Registrar an answer to the answer of the respondent. Such answer shall be signed and
verified in the manner required by law for the verification of pleadings.

15E. Notice time for intervening.—Where the answer of a husband alleged adultery by the petitioner and no relief
is claimed there shall be served upon the alleged adulterer by the respondent or his attorney within 7 days of the
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filing of the answer or such further time as the court may allow a certified copy of the answer together with a notice
to be issued by the Registrar that he is entitled within 14 days or such further time as the court may allow to apply to
the court for leave to intervene and upon such application he may be allowed to intervene subject to such direction
as may be given by the court.

15F. Filing of answer.—In a case to which rule 15E applies upon leave to intervene being given the alleged
adulterer may within 7 days or such further time as the court may allow file with the registrar an answer to be signed
and verified in the manner required by law for the verification of pleadings and the registrar shall cause the name,
address and description of the alleged adulterer to be added to the title of the cause with the word “intervener”
thereafter.

Addition of parties

16. Application to add parties.—Save as otherwise provided by rule 26 hereof or by the rules applicable to the
officer appointed under section 17A of the Act, any person claiming to be added as a party or to have a party added
to the suit or matter shall apply to the court by notice of motion.

Evidence taken by affidavit

17. Evidence by affidavit.—Cf. Eng. Rr. 36 and 37.—Where any party proposes under section 51 of the Act to
verify his case by affidavit such affidavit or affidavits must be filed within fourteen days after the party has received
notice that the case has been entered in the Prospective List and the party shall forthwith apply on summons to the
other parties to the Registrar for directions as to the deponents being produced for cross-examination at the
hearing.

Examination of witnesses before hearing

18. Security for costs of commission or de bene essee.—Cf. Eng. R. 39(b).— When an order is made for the
examination of a witness on commission or de bene essee, a wife may apply for security for her costs of the
examination at the time of the order or subsequently by summons.

Trial of issues

19. Separate trial of issues.—Cf. Eng. R. 40.—A Judge may direct and any petitioner and any party to a cause
who has entered an appearance may apply of summons to a Judge for a direction for the separate trial of any issue
or issues of fact or any question as to the jurisdiction of the court.

Proceedings in Chambers

20. To whom to be made.—Cf. Eng. R. 41.—All applications under these rules which are not hereby directed to be
made to the court or to a Judge may be made to the Registrar.

21. Appeal from Registrar.—Cf. Eng. R. 45.—An appeal from an order or decision of the Registrar may be made
to a Judge in Chambers under rule 15 of Chapter VI of these rules.

Petition for Reversal of Decree of Judicial Separation

22. Petition to reverse decree.—A petition to the court for the reversal of a decree of judicial separation must set
out the grounds on which the petitioner relies.

23. Appearance of party praying reversal. —Cf. Eng. R. 48.—Before such a petition can be filed an appearance
on behalf of the party praying for a reversal of the decree of judicial separation must be entered in the suit in which
the decree has been pronounced. Leave to enter such appearance shall be granted by the Registrar ex parte.

24. Copy of the petition to be served. Filing answer thereto.—Cf. Eng. R. 49.—A certified copy of such petition
under seal of the court, together with a Notice of Motion (Form No. 1 Appendix MM) returnable before the Judge in
court shall be served personally upon the party in the suit in whose favour the decree has been made unless leave
to substitute some other form of service has been obtained under rule 23 of Chapter VIII of these rules. Such party
may within 14 days file with the registrar an answer thereto.
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25. Subsequent pleadings and proceedings. —Cf. Eng. R. 50.—All subsequent pleadings and proceedings
arising from such petition and answer shall be filed and carried on in the same manner as afore directed in respect
of an original petition and answer thereto so far as such directions are applicable.

Showing cause against a Decree Nisi

26. Applicants to show cause.—Cf. Eng. R. 52.—Any person other than the officer appointed under section 17A
of the Act wishing to show cause under section 16 of the Act against making absolute a decree nisi shall apply ex
parte by petition to the court for leave to show cause. If the leave be granted such person shall within seven days
from the date of the order enter an appearance in the cause in which such decree nisi has been pronounced and
file affidavits setting forth the facts upon which he relies, and shall within seven days from appearance serve
certified copies of such affidavits on the party or the solicitor of the party in whose favour the decree nisi has been
pronounced.

27. Affidavit in answer.— Cf. Eng. R. 53.—The party in the suit in whose favour the decree nisi has been
pronounced may within fourteen days after delivery of the affidavits file affidavits in answer, and the person showing
cause against the decree nisi being made absolute may within fourteen days file affidavit in reply.

28. No affidavit in rejoinder without leave.—Cf. Eng. R. 54.—No affidavit shall be filed in rejoinder to the affidavit
in reply without leave of the registrar or Judge and subject to any direction by the Judge the matter shall be heard
and decided in the same manner as provided in the case of an original petition.

Decree absolute

29. Six months between decree nisiand absolute.—The time within which a decree nisi may not under section
16 of the Act be made absolute shall be six months from the pronouncing thereof.

30. Application for decree absolute.—Cf. Eng. R. 56.—Application to make absolute a decree nisi shall be made
to the court by filing with the registrar a petition in writing setting forth that application is made for such decree
absolute, which will thereupon be pronounced in open court at a time appointed for that purpose. In support of such
application there shall be exhibited a certificate of the registrar that the requisite time has elapsed since the date of
the decree nisi and that up to within six days of the date appointed for the hearing of the application no person had
intervened or obtained leave to intervene in the cause and that no appearance has been entered nor any affidavit
filed on behalf of any person wishing to show cause against the decree nisi being made absolute and in case leave
to intervene has been obtained or appearance entered or affidavits filed on behalf of such person, the certificate
shall show what proceedings, if any, have been taken thereon. Forms of Certificate are given in Appendix MM Nos.
2 and 3. If more than twelve calendar months have elapsed since the date of the decree nisi an affidavit by the
petitioner giving reasons for the delay must be filed.

Alimony

31. Petition for alimony.—A wife who is petitioner in a suit after service of the writ of summons and a wife who is a
respondent may after entering appearance file a petition for alimony pending suit under section 36 of the Act.

Service of Petition.—Cf. Eng. R. 57.—Such petition shall be verified as required by law for a plaint and a copy
thereof together with a summons (Form No. 4 in Appendix MM) shall be served personally on the husband except
leave shall have been obtained from the Judge to substitute some other form of service.

32. Answer thereto.—Cf. Eng. R. 58.—The husband may within fourteen days or such further time as may be
allowed file an answer thereto duly verified as required by law for a pleading.

33. Hearing of summons.—Such summons shall be returnable before the Judge in Chambers who may make an
order on the said petition or give such directions as to further evidence as he may think fit or refer the matter to an
officer to the court for a report or adjourn the same into court for hearing.

34. Applications under sections 37 and 38 of the Divorce Act.—All applications under section 37 of the Act shall
be made to the court by notice of motion supported by affidavit. Such application must be brought within one month
of the completion of the decree for judicial separation as the case may be, provided that an extension of time may
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be obtained from the Judge on summons. Applications for the appointment of a new trustee under section 38 of the
Act shall be made on summons returnable before the Judge in Chambers.

35. Date of payments under section 37 to commence.—Monthly or weekly sums ordered to be paid to a wife for
her maintenance and support under section 37 of the Act shall unless otherwise ordered commence from the date
of the decree absolute or decree for judicial separation as the case may be.

36. Interim order.—Pending the final determination of an application under section 37 of the Act an interim order
may be made upon such terms as shall appear to the court to be just and without prejudice to the effect of the order
to be ultimately made.

Variation of Settlements

37. Application under sections 39 and 40 of the Act.—All applications under sections 39 and 40 of the Act shall
be made on notice of motion to the court. The court may make such reference for enquiry or report and to such
officer as it may think fit but no order for the settlement of a wife’s property or for the settlement of damages or for
the variation of settlements shall be made except by the court.

Custody and maintenance of children and access

38. Applications under sections 42 and 43 of the Act.—Applications for interim order under sections 41 and 42
of the Act shall be made on summons to the Judge in Chambers supported by an affidavit.

39. Applications under sections 42 and 44 of the Act.—Applications under sections 42 and 44 of the Act shall be
made by petition which shall be verified as required by law for a plaint and which together with a summons (Form
No. 5 in Appendix MM) returnable before the Judge in Chambers shall be served personally upon the party or
parties to be affected thereby except leave shall have been obtained from the Judge to dispense with such service
or to substitute some other form of service.

40. Showing cause.—Any such party may show cause against the petition by filing affidavits or by filing an answer,
verified as required by law in the case of a pleading. Rule 33 of this chapter shall apply to the proceedings on such
petition.

Taxing Bills of Costs

41. Taxation.—Cf. Eng. R. 84.—All bills of costs shall be referred to the Taxing Officer for taxation and may be
taxed by him without special order for that purpose.

Wife’s Costs

42. Procedure to obtain order for wife’s costs.—Cf. Eng. R. 91.—When the pleadings are complete or at an
earlier stage of a suit by order of the Judge or of the Registrar to obtain on summons, a wife who is petitioner or has
filed an answer may file her bill or bills of costs for taxation against her husband and the Registrar shall ascertain
what is a sufficient sum of money to be paid into court or what is a sufficient security to be given by the husband to
cover the costs of the wife and incidental to the hearing of the cause, and may thereupon, unless the husband shall
prove to the satisfaction of the Registrar that the wife has sufficient separate estate or show other good cause,
issue an order upon the husband to pay her costs upto the setting down of the cause and within a time to be fixed
by the registrar. The registrar may in his discretion order the costs upto setting down to be paid into court.

43. Payment of costs into court. —Cf. Eng. R. 93.—The order for payment of costs in which a respondent or co-
respondent has been condemned by a decree nisi drawn up before the decree nisi is made absolute, shall direct
payment into court and such costs shall not be paid out of court to the party entitled to receive them under the
decree nisi until the decree absolute has been obtained but the wife who is unsuccessful in a cause, and who at the
hearing of the cause has obtained an order for costs may nevertheless proceed at once to obtain payment of such
costs after allowance thereof on taxation.

Removal of suits, etc.

44. Application under section 8 of the Act.—An application to the High Court to remove a suit or proceeding
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under section 8 of the Act shall be made by an ex parte application to the Judge on the original side in open court
for a rule upon the party or parties concerned to show cause against such removal.

Times fixed by these rules

45. Varying of times fixed.—Cf. Eng. R. 82(A).—The time fixed by these rules for the performance of any act may
be varied by order of a Judge or the Registrar subject to such qualifications and restriction and on such terms as he
may think fit.

Rules of the original side

46. Practice and procedure. —Cf. Eng. R. 96.—In any matter of practice or procedure which is not governed by
statute or dealt with by these rules, the rules of the original side in respect of like matters shall be deemed to apply.

APPENDIX

NO. 1

Form of Notice under rule 24

CHAPTER XXXVA

IN THE HIGH COURT AT CALCUTTA

In Matrimonial Jurisdiction

in re: The Indian Divorce Act

(IV of 1869)

Between

A.B. .............................................................................................................................Petitioner

C.D. ............................................................................................................................. Respondent

And

X.Y. ................................................................................................................... Co-respondent

To

A. B. the Petitioner and

To

His or her attorney

Take Notice that ..................... day the ..................... day of at the hour of 11 o’clock in the forenoon or so soon
thereafter as Counsel can be heard, an application will be made on behalf of ..................... before the Hon’ble Mr.
Justice ..................... for an order that the decree of judicial separation passed on the .................... day of ... 20
........ be set aside and also for such other order as to the court may seem fit.

Dated this ......................... day of ......................... 20........

Yours faithfully,

Attorney for the applicant

Grounds:
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Petition of the applicant

NO. 2

Form of Certificate under rule 30

IN THE HIGH COURT AT CALCUTTA

In Matrimonial Jurisdiction

In re: The Indian Divorce Act

(Act 4 of 1869)

Between

A.B. ............................................................................................................................. Petitioner C.D

..................................................................................................... Respondent

And

X.Y. .................................................................................................................... Co-respondent

At the request of ......................... Attorney for the Petitioner I do hereby certify that six months have elapsed since
the date of the decree nisi dated the ......................... day of .........................; that up to the ......................... day of
......................... being within six days of the date appointed for the hearing of the application to make absolute the
decree nisi, no person has intervened, or obtained leave to intervene in the above cause; and that no appearance
has been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi
being made absolute.

Dated this ......................... day of ......................... 20 .......

Registrar

NO. 3

Alternative Certificate under rule 30

At the request of ......................... Attorney for the Petitioner I do hereby certify that in respect of the decree nisi
dated the.................. day of....................20.... (Name) .........................intervened (obtained leave to intervene) in the
cause on the.....................day of....................... that an appearance was entered on the day
of................................................with a view to show cause against the decree nisi being made absolute (state if any
other proceedings have been taken).

Dated this.........................day of.........................20.......

Registrar

NO. 4

Form of Summons under rule 31

IN THE HIGH COURT AT CALCUTTA

In Matrimonial Jurisdiction

In re: The Indian Divorce Act

(Act 4 of 1869)
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APPENDIX I

Between

A.B ....................................................................................................... Petitioner

C.D ....................................................................................................... Respondent

And

X.Y. .................................................................................................................... Co-respondent

Let the Respondent/Petitioner above-named attend before the Judge in Chambers on.........................day
of.........................at the hour of 11 o’clock in the forenoon or on the hearing of an application on behalf of the
Petitioner/Respondent for an order that the Respondent/Petitioner do pay to the Petitioner/Respondent the sum of
Rs..........................per month for alimony pendente lite and Rs..........................for interim costs and for such further
or other sum as may seem just and the said Respondent/Petitioner do pay to the Petitioner/Respondent her costs
of and incidental to this application to be taxed by the Taxing Officer of this Court.

Dated this.........................day of.........................20......

Registrar

This summon was taken out by the attorney for the Petitioner/Respondent.

To

The Respondent/Petitioner

To

His attorneys Grounds:

Petition of the applicant verified by affidavit.

NO. 5

Form of Summons under rule 39

CHAPTER XXXVA

IN THE HIGH COURT AT CALCUTTA

In Matrimonial Jurisdiction

In re: The Indian Divorce Act

(Act 4 of 1869)

Between

A.B. ............................................................................................................................ Petitioner

C.D. ......................................................................................................................... Respondent

And

X.Y. ....................................................................................................................Co-respondent

Let the parties concerned attend before the Judge in Chambers on the .........................day of .........................at the
hour of 11 o’clock in the forenoon on the hearing of an application on the part of the Petitioner/Respondent for an
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APPENDIX I

order that the custody of the children of the marriage of the parties in the suit may be given to the applicant and that
the Respondent/Petitioner do pay to the applicant Rs ..........................a month for the maintenance of herself and
for the maintenance and education of her minor children and that the Respondent/Petitioner do pay to the applicant
her costs of and incidental to this application to be taxed by the Taxing Officer of this Court.

Dated this.........................day of.........................20........

Applicant’s attorney Registrar

This Summons was taken out by the Attorney for the Petitioner/Respondent

To

The Respondent/Petitioner

To

His attorneys Grounds:

Petition of the applicant verified by Affidavit sworn.

6. DELHI HIGH COURT

(1) HINDU MARRIAGE RULES, 19791

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955)
and all other powers enabling in this behalf, the High Court of delhi hereby makes the following rules to regulate the
proceedings under the said Act:—

1. Short title.—These rules may be called the Hindu Marriage Rules, 1979.

2. Commencement.—These rules shall come into force from the date of their publication in the Delhi Gazette.

3. Definitions.—In these rules, unless there is anything repugnant in the subject or context,—
(a) “Act” means the Hindu Marriage Act, 1955 (25 of 1955) as amended from time to time.
(b) “Code” means the Code of Civil Procedure, 1908 as from time to time modified or amended.
(c) “court” means the court mentioned in section 3(b) of the Act.
(d) “form” means a form appended to these rules.
(e) “section” and “sub-section” means, respectively, section and sub-section of the Act.
(f) All other terms and expressions used herein but not defined shall have the meaning respectively assigned
to them in the Act.

4. Petition.—
(a) Every petition under the Act shall be accompanied by either a certified extract from the Hindu Marriage
Register maintained under section 8 of the Act where the marriage has been registered under the Act or in
the absence of the same, an affidavit to the effect that the petitioner was married to the respondent (unless
the certificate or affidavit is already on the record or is for sufficient cause dispensed with by the Court).
(b) Every petition for divorce on any of the grounds mentioned in clauses (i) and (ii) of sub-section (1A) of
section 13 of the Act shall be supported by certified copy of the decree for judicial separation or for
restitution of conjugal rights, as the case may be.

5. Forms of proceedings.—The following proceedings under the Act shall be initiated by petitions:—
(i) under section 9 for restitution of conjugal rights;
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(ii) under sub-section (1) of section 10 for judicial separation;

(iii) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) under section 11 for declaring a marriage null and void;
(v) under section 12 for annulment of marriage by a decree of nullity;
(vi) under section 13 for divorce;
(vii) under section 13B for divorce by mutual consent;
(viii) under section 14 for leave to present a petition for divorce before the expiration of one year from the date
of marriage;
(ix) under section 26 for making, revoking, suspending or varying orders and provisions with respect to the
custody, maintenance and education of minor children.

6. Petitions by or against a person suffering from mental disorder.—A person suffering from mental disorder
will be treated in all respects as a person of unsound mind for the purposes of Order XXXI of the Code.

7. Contents of petition.—In addition to the particulars required to be given under Order VII, rule 1 of the Code and
section 20(1) of the Act, all petitions under sections 9 to 13 shall state:
(a) the place and date of marriage;
(b) whether the petitioner and the respondent were Hindu by religion at the time of the marriage and whether
they continue to be so upto the date of filing of the petition;
(c) the name, status and domicile of the wife and the husband before the marriage and at the time of filing the
petition;
(d) the address where the parties to the marriage reside at the time of the presentation of the petition and last
resided together;
(e) the names of children, if any, of the marriage, their sex and their dates of birth or ages;
(f) if prior to the date of the petition there has been any proceeding under the Act between the parties to the
petition, full particulars thereof;
(g) the matrimonial offence or offences alleged or other ground, upon which the relief is sought, setting out
with sufficient particularity the time and places of the acts alleged, and other facts relied upon, but not the
evidence by which they are intended to be proved, e.g.:—
(i) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which the respondent withdrew from the society of the petitioner;
(ii) if the petition is for decree of nullity of marriage on the grounds specified in clauses (c) and (d) of sub-
section (1) of section 12 of the Act, the particulars of force or fraud and the circumstances in which
force or fraud had been practised along with the time when the facts relied upon were discovered and
whether or not marital intercourse with the consent of the petitioner took place after the discovery of
the said facts;
(iii) in every petition for judicial separation or divorce by either the husband or the wife on the ground that
the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse, the petitioner shall state the name, occupation and place of
residence of such person or persons so far as they can be ascertained, the specified acts of sexual
intercourse and the occasion when and the place where such acts were committed;
(iv) in the case of alleged desertion, the date and the circumstances in which it began; in the case of
cruelty, the specific acts of cruelty and the occasion when and the place where such acts were
committed;
(v) in the case of unsoundness of mind or mental disorder, the time when such unsoundness of mind or
mental disorder began to manifest itself and the nature and the period of the curative steps taken;
(vi) in the case of virulent and incurable form of leprosy or venereal disease in communicable form, when
such ailment began to manifest and the nature and the period of the curative steps taken;
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(vii) if the petition is on the ground specified in section 13(1)(vi), the date of renunciation and the particulars
of the religious order which the respondent has entered into;
(viii) if the petition is on the ground specified in section 13(1)(vii), the date and the place where the
respondent was last seen or heard of alive and steps, if any, taken to ascertain his or her whereabouts;
(ix) where the petition is founded on the ground of rape or sodomy the occasion when, the place where
and the names and addresses of persons with whom such acts were committed. In case of conviction
for committing rape or sodomy, the particulars thereof;
(x) where the petition is founded on the ground of bestiality, the occasion when, the place where and the
particulars of the beast with whom the husband had been guilty of bestiality;
(xi) in the case of divorce under section 13(2)(iii) of the Act, particulars of the decree under section 18 of
the Hindu Adoptions and Maintenance Act, 1956 or of order under section 125 of the Code of Criminal
Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898)
together with an affidavit that since the passing of such decree or order, cohabitation between the
parties has not been resumed for one year or upwards;
(xii) in the case of divorce under section 13(2)(iv) the date and the place of birth of the wife together with
the date and the place of repudiation and its mode;
(h) the property mentioned in section 27 of the Act, if any;
(i) the relief or reliefs prayed for.

8. Affidavit of non-collusion.—Every petition (excepting petitions under section 11) shall be accompanied by an
affidavit to the effect that it is not presented or prosecuted in collusion with the respondent. In the petition seeking
judicial separation or divorce on the ground that the party has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her spouse, it will also state that the petitioner has
not, in any manner, been accessory to or connived at the act or acts complained of.

9. Affidavit of non-condonation.—Where the ground of the petition is the ground specified in clause (i) of sub-
section (1) of section 13 or where the ground for the petition is cruelty, the petition shall be accompanied by an
affidavit to the effect that the petitioner has not condoned the act or acts complained of or has not in any manner
condoned the cruelty.

10. Affidavit of non-cohabitation.—Every petition under section 13(1)(i) of the Act shall be accompanied by an
affidavit made by the petitioner that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to
which they were parties.

11. Affidavit of non-restitution of conjugal rights.—Every petition under section 13(1) (ii) of the Act shall be
accompanied by an affidavit made by the petitioner of the fact that there has been no restitution of conjugal rights
as between the parties to the marriage for a period of one year or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.

12. Necessary parties.—

(a) In every petition for divorce or judicial separation on the ground that the respondent has, after the
solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her
spouse, the petitioner shall make the alleged adulterer or adulteress a co-respondent to the petition. The
petitioner may, however, apply to the court, on application supported by an affidavit, for leave to dispense
with the joinder of such person as a co-respondent on any of the following grounds:—
(i) that the name of such person is unknown to the petitioner although he/she has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom voluntary sexual intercourse has been committed; or
(iv) any other reason that the court considers sufficient.
 Page 52 of 245
APPENDIX I

(b) In every petition under section 13(2)(i) of the Act, the petitioner shall make the “other wife” mentioned in
that section a co-respondent.
(c) In every petition under section 11 of the Act on the ground that the condition in

section 5(i) is contravened, the petitioner shall make the spouse alleged to be living at the time of the marriage, a
co-respondent.

13. Application for leave under section 14 of the Act.—

(1) In support of an application for leave under section 14 of the Act, there shall be filed an affidavit by the
applicant stating the grounds on which the application is made, particulars of the exceptional hardship or
exceptional depravity alleged, whether there has been any previous application under the said section,
whether there are living any children of the marriage, and, if so, the names and dates of birth or ages of
such children, their sex, where and with whom they are residing, whether any, and if so, what attempts at
reconciliation have been made and any circumstances which may assist the court to determine the
question whether there is reasonable probability of a reconciliation between the parties.
(2) Notice of the application shall be given to the respondent who may contest the same by filing affidavit in
opposition.
(3) In exceptional circumstances the court may, if necessary, order a deponent to be cross-examined on his or
her affidavit.
(4) The application shall be accompanied by the petition intended to be filed.
(5) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order provided proper court fee thereon is paid within the time allowed by the court.

14. Notices.—The court shall issue notice in Form ‘A’ accompanied by a copy of petition to the respondent and the
co-respondent if any. The notice shall require, unless the court otherwise directs, the respondent or co-respondent
to file his or her written statement in court on or before the date fixed in the notice.

15. Written statement in answer to petition.—Where a counter-claim is made in terms of section 23A, it shall
comply with the Rules applicable to petitions on the like grounds.

16. Application for alimony and maintenance.—Every application for maintenance pendente lite, permanent
alimony and maintenance or for custody, maintenance and education expenses of minor children shall be
supported by an affidavit and shall state the average monthly income of the petitioner and the respondent, the
sources of their income, particulars of other movable and immovable property owned by them jointly or severally,
the details of their liabilities, if any, alongwith the number of their dependents, if any, and the names and ages of
such dependents.

17. Supply of certified copy of the decree to the parties.—

(1) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give
a copy thereof free of cost to each of the parties. The copy so supplied shall be authenticated as “true
copy” by the court passing the decree.
(2) The court shall maintain a register where the particulars of the decree shall be incorporated and signatures
of the parties or their advocates or agents shall be obtained in token of their having received a copy of the
decree.

18. Forms.—The Forms given in the Appendix to these rules with such variations as the circumstances of each
case may require, shall be used.

FORM ‘A’

In the District Court at.................................................

Matrimonial and Divorce Jurisdiction Case No................................................

Date of Institution ............................

 Page 53 of 245
APPENDIX I

.....................................................................................................................Petitioner

.................................................................................................................Respondent

versus

......................................................................................................................... Co-respondent

To

..................................................

..................................................

Whereas.............................. has presented a petition/application against you for under section............................. of

the Hindu Marriage Act, 1955 (25 of 1955). (A copy of the said petition/application is sent herewith), you are hereby
summoned to appear in this Court on the............................. at 10 o’clock in the forenoon to answer the said
petition/application, either in person or by recognized agent duly instructed and able to answer all material
questions relating to the case, or who shall be accompanied by some other person able to answer all such
questions or by an advocate, similarly instructed or accompanied and you are directed to produce on that day all
documents upon which you intend to rely in support of your defence. You should file a written statement/answer to
the petition/application on the date mentioned above.

You are further informed that in default of your appearance on the day and in the manner above mentioned, the
petition/application shall be heard and determined in your absence.

Given under my hand and the seal of this Court, this.................... day of........................20............

Dated............................. Sd/-

..........................

District Judge

At.....................

FORM ‘B’

In the District Court at..........................

..........................................................................................................................Petitioner

versus

...............................................................................................................................Respondent

Petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties, according to Hindu rites and ceremonies on ......................at
.............................The said marriage is registered with the Registrar of Marriages. A certified copy of the relevant
extract from the Hindu Marriage Register, is filed herewith, and an affidavit, duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 54 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage(ii)

At the time of filing the
petition
 Page 55 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their

sex, dates of birth or ages.

4. The respondent has, without reasonable excuse, withdrawn from the society of the petitioner with effect from
.............................

(The circumstances under which the respondent withdrew from the society of the petitioner be stated).

5. The petition is not presented in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing the petition.

7. There is no other legal ground why the relief should not be granted.

8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized at ............................. The parties last resided together at ............................ The
parties are now residing at ............................ (within the local limits of the ordinary original jurisdiction of this Court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner prays for a decree for restitution of conjugal rights against the respondent.

Sd/-

.............................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to.............................of the petition are true to
the petitioner’s knowledge and paras.............................to.............................are true to the petitioner’s information
received and believed to be true by him/her.

Verified at.............................(Place) Sd/-

Dated................................................ ................................................
 Page 56 of 245
APPENDIX I

Petitioner

FORM ‘C’

In the District Court at .............................

..........................................................................................................................Petitioner

.......................................................................................................................Respondent

versus

................................................................................................................Co-respondent

Petition for judicial separation under section 10 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties/petitioner and the respondent according to Hindu rites and
ceremonies on ............................. at ....................... . The certified copy of the relevant extract from the Hindu
Marriage Register ...................... is filed herewith.

An affidavit, duly attested.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 57 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 58 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. The respondent has ............................. (any one or more of the grounds available under section 10 may be
pleaded here. The matrimonial offences charged should be set in separate paragraphs with times and places of
their alleged commission. The facts on which the claim to relief is founded should be stated in accordance with the
rules and as distinctly as the nature of the case permits).

5. Where the ground of petition is the ground specified in clause (i) of section 13(1). The petitioner has not in any
manner been necessary to or connived at or condoned the acts complained of.

6. Where the ground of petition is cruelty. The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing this petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

11. The marriage was solemnized at ............................. The parties last resided together at ............................. The
parties are now residing at ............................. (within the local limits of the ordinary original jurisdiction of this court).

12. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

13. The petitioner, therefore, prays for a decree for judicial separation against the respondent

Sd/-

.............................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to. ............................. of the petition are true
to the petitioner’s knowledge and paras ......................... to ........................are true to the petitioner’s information
received and believed to be true by him/her.
 Page 59 of 245
APPENDIX I

Verified at (Place).

Dated

Sd/-

.............................

Petitioner

FORM ‘D’

In the District Court at............................

...................................................................................................................................Petitioner

versus

..............................................................................................................................Respondent

Petition for a decree of nullity of marriage under section 11 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after the
commencement of the Hindu Marriage Act on ............ at .............................A certified copy of the relevant extract
from the Hindu Marriage Register and an affidavit, duly attested is attached herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 60 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 61 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. The respondent had a spouse living at the time of the marriage (give full particulars).

The parties are within the degrees of prohibited relationship and there is no custom or usage governing each of
them which permits of a marriage between the two. (Specify the exact relationship between the parties).

The parties are sapindas of each other and there is no custom or usage governing each of them which permits of a
marriage between the two. (Specify the exact relationship between the parties).

(One or more of the above grounds may be pleaded, and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated in compliance with the rules and as distinctly as the
nature of the case permits).

5. There has not been any unnecessary or improper delay in filing the petition.

6. There is no other legal ground why the relief should not be granted.

7. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

8. The marriage was solemnized at ............................. The parties last resided together at ............................. The
parties are now residing at ............................. (within the local limits of the ordinary original jurisdiction of this
Court).

9. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

10. The petitioner, therefore, prays that the marriage solemnized between the parties being null and void may be so
declared by the court by a decree of nullity.

Sd/-

..................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to ..............................of the petition are true
 Page 62 of 245
APPENDIX I

to the petitioner’s knowledge and paras ..............................to ..............................are true to the petitioner’s
information received and believed to be true by him/her.

Verified at .............................. (Place).

Dated ..............................

Sd/-

..................

Petitioner

FORM ‘E’

In the District Court at.............................

..................................................................................................................................Petitioner

versus

...............................................................................................................................Respondent

Petition for the annulment of marriage, under section 12 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies after commencement
of the Hindu Marriage Act, on ......... ....................at ............................. a certified copy of the relevant extract from
the Hindu Marriage Register. An affidavit, duly attested, is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 63 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 64 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. One or more of the grounds as specified in section 12 of the Act may be pleaded here. Facts on which the claim
to relief is founded should be stated in accordance with the rules and as distinctly as the nature of the case permits.

5. The petition is not instituted in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing this petition.

7. There is no other legal ground why the relief should not be granted.

8. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized at .............................The parties last resided together at .............................The
parties are now residing at ............................. (within the local limits of the ordinary original jurisdiction of this court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

11. The petitioner, therefore, prays that the marriage between the parties being voidable, may be so annulled by the
court by a decree of nullity.

Sd/-

..........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to.............................of the petition are true to
the petitioner’s knowledge and paras............................to.............................are true to the petitioner’s information
received and believed to be true by him/her.

Verified at.............................(Place).

Dated................................................ Sd/-

....................
 Page 65 of 245
APPENDIX I

Petitioner

FORM ‘F’

In the District Court at............................

...................................................................................................................................Petitioner

...............................................................................................................................Respondent

versus

......................................................................................................................... Co-respondent

Petition of dissolution of marriage by a decree of divorce under section 13 of the Hindu Marriage Act, 1955 (25 of
1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties/petitioners and the respondent according to Hindu rites and
ceremonies on .............................at ............................. A certified copy of the relevant extract from the Hindu
Marriage Register/An affidavit, duly attested, is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 66 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 67 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. The respondent............................. (one or more of the grounds specified in section 13 may be pleaded here. The
facts on which the claim to relief is founded should be stated in accordance with the rules and as distinctly as the
nature of the case permits. If ground as specified in clause (i) of section 13(1) is pleaded, the petitioner should give
particulars as nearly as he can of facts of voluntary sexual intercourse alleged to have been committed. The
matrimonial offence/offences charged should be set in separate paragraphs, with the times and places of their
alleged commission).

5. Where the ground of petition is the ground specified in clause (i) of sub-section (1) of section 13. The petitioner,
has not in any manner been accessory to or connived at or condoned the act (s) complained of.

6. Where the ground of petition is cruelty. The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing the petition.

9. There is no other legal ground why the relief should not be granted.

10. There have not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

11. The marriage was solemnized at .............................The parties last resided together at .............................The
parties are now residing at ............................. (within the local limits of the ordinary original jurisdiction of this
Court).

12. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain this petition.

13. The petitioner, therefore, prays that the marriage between the petitioner and the respondent may be dissolved
by a decree of divorce.

Sd/-

......................

Petitioner

Verification
 Page 68 of 245
APPENDIX I

The above-named petitioner states on solemn affirmation that Paras P to .............................of the petition are true
to the petitioner’s knowledge and paras .............................to .............................are true to the petitioner’s
information received and believed to be true by him/her.

Verified at ............................. (Place).

Dated .............................

Sd/-

.........................

Petitioner

FORM ‘G’

In the District Court at ...............

...............Petitioner No. 1

...............Petitioner No. 2

Petition for dissolution of marriage by a decree of divorce by mutual consent under section 13B(1) of the Hindu
Marriage Act, 1955 (25 of 1955) as amended by the Marriage Laws (Amendment) Act, 1976.

The petitioner prays as follows:

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on........................at
........................ A certified copy of the relevant extract from the Hindu Marriage Register an affidavit, duly attested, if
filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 69 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 70 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph state the place where the parties to the marriage last resided and the names of the children, if
any, of the marriage together with their sex, dates of birth or ages).

4. That the parties to the petition have been living separately, since and have not been able to live together since
then.

5. That the parties to the petition have mutually agreed that their marriage should be dissolved.

6. That the mutual consent has not been obtained by force, fraud or undue influence.

7. That the petition is not presented in collusion.

8. That there is no other legal ground why relief should not be granted.

9. The petitioners submit that this court has jurisdiction to entertain this petition.

10. The petitioners, therefore, pray that the marriage between the parties may be dissolved by a decree of divorce.

Sd/-

.......................

Petitioners

Verification

The above-named petitioners state on solemn affirmation that Paras I to ............................. of the petition are true
to their knowledge and paras ............................. to ............................. are true to their information received and
believed to be true by them.

Verified at.............................(Place).

Dated................................................. Sd/-

.....................

Petitioners

FORM ‘H’

In the District Court at .............................

...................................................................................................................................Petitioner

versus

...............................................................................................................................Respondent

Application under section 14 of the Hindu Marriage Act, 1955 (25 of 1955) praying that a petition for divorce may be
allowed to be presented within one year of the marriage.

The applicant prays as under:

1. A marriage was solemnized between the parties according to Hindu rites and ceremonies on ......................at
...................... A certified copy of relevant extract from the Hindu Marriage Register/An affidavit, duly attested, is
filed herewith.
 Page 71 of 245
APPENDIX I

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 72 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 73 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. This is a case of exceptional hardship to the petitioner/exceptional depravity on the part of the Respondent as
(state here in accordance with the rules and as distinctly as the nature of the case permits all the particulars about
the exceptional hardship or depravity, as the case may be).

5. The marriage was solemnized at............................. The parties last resided together at ............................. (within
the local limits of the ordinary original jurisdiction of this Court).

6. The petitioner submits that this Hon’ble Court has jurisdiction to try and entertain the application.

7. The applicant, therefore, prays that he/she may be allowed to present a petition for divorce within one year of the
marriage.

Verification

The above-named applicant states on solemn affirmation that Paras I to......................... of the application are true
to the applicant’s knowledge and paras.............................. to ............................. are true to the applicant’s
information received and believed to be true by him/her.

Verified at.............................(Place). Sd/-

Dated................................................ ...........................

Applicant

FORM ‘I’

In the District Court at...........................

...................................................................................................................................Petitioner

versus

...............................................................................................................................Respondent

Applicantion for maintenance pendente lite and expenses of proceedings under section 24 of the Hindu Marriage
Act, 1955 (25 of 1955).

The applicant prays as follows:

1. A proceeding for.............................under section........................ of the Hindu Marriage Act, 1955 is pending

between the parties in this court. The next date of hearing is .............................

2. The petitioner owns no other movable or immovable property and has no other sources of income except the
following ............................ (Give full particulars of the petitioner’s property and income).

3. The petitioner has no independent income sufficient for his/her support and the necessary expenses of the
proceeding. The respondent has not made any provision for the petitioner’s maintenance.

4. The respondent has sources of income and owns movable and immovable property mentioned below:

............................. (Give full particulars of respondent’s income and property).

5. The only person dependent upon the respondent the petitioner himself/herself or the petitioner and (give here the
 Page 74 of 245
APPENDIX I

details of the liabilities, if any, of the parties alongwith the details of the dependents, if any, and the names and ages
of such dependents).

6. The petitioner submits that having regard to the respondent’s own income and his/her property and having regard
to the conduct of the respondent and the petitioner, a sum of Rs ............................. per month as and by way of
maintenance and support is the just and proper amount for the maintenance and support of the petitioner.

7. The petitioner prays that the respondent should be ordered to pay a sum of Rs.............................. as the
petitioner’s expenses of the proceeding and a sum of Rs ............................. monthly for petitioner’s maintenance
during the proceeding.

Sd/-

......................

Petitioners

Verification

The above-named petitioner states on solemn affirmation that Paras I to ............................. of the petition are true
to the petitioner’s knowledge and paras ............................. to ............................. are true to the petitioner’s
information received and believed to be true by him/her.

Verified at.............................(Place).

Dated................................................ Sd/-

......................

Petitioner

FORM ‘J’

In the District Court at.........................

...................................................................................................................................Applicant

versus

...............................................................................................................................Respondent

Application for permanent alimony and maintenance under section 25 of the Hindu Marriage Act, 1955 (25 of 1955).

The applicant prays as follows:

1. A proceeding between the parties for.............................under section ....................... of the Hindu Marriage Act,
1955, is pending in/was decided, by this court, particulars of which are given below:

(In case main proceeding is pending, give only the next date of hearing).

Name and year of the case Name of parties Date of decision Remarks

2. The applicant owns no other movable or immovable property and has no other source of income except the
following ............................. (Give full particulars about applicant’s income and property).

3. The respondent has sources of income and owns movable and immovable property mentioned below:
 Page 75 of 245
APPENDIX I

............................. (Give full particulars of respondent’s income and property).

4. The only person dependent upon the respondent is the applicant himself/herself or the applicant and (Give here
the details of the liabilities, if any, of the parties alongwith the details of the dependents).

5. The respondent has not made any provision for the applicant’s maintenance.

6. The applicant has not remarried and has not been guilty of any conduct which would disentitle him/her to receive
maintenance from the respondent.

7. The applicant submits that he/she is entitled to alimony for his/her maintenance and support in any amount
sufficient to maintain the applicant in the standard of life to which he/she is accustomed.

8. The applicant prays that having regard to the income of the parties, their conduct, and other circumstances of the
case, the respondent may be ordered to pay to the applicant for his/her maintenance and support until death or
remarriage a gross/monthly/periodical sum of Rs............................. (score out portion not necessary) and such
payment may be secured by a charge on the movable property of the respondent.

Sd/-

......................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to......................of the petition are true to the
petitioner’s knowledge and paras.............................to.............................are true to the petitioner’s information
received and believed to be true by him/her.

Verified at.............................(Place).

Dated.............................................. Sd/-

......................

Petitioner

(2) SPECIAL MARRIAGE (DELHI HIGH COURT) RULES, 19791

In exercise of the powers conferred by section 41 of the Special Marriage Act, 1954 (Central Act No. 43 of 1954)
and all other powers enabling in this behalf, the High Court of Delhi hereby makes the following rules to regulate the
proceedings under the said Act.

1. Short title.—These rules may be called Special Marriage Rules, 1979.

2. Commencement.—These rules shall come into force from the date of their publication in the Delhi Gazette.

3. Definitions.—In these rules, unless there is anything repugnant in the subject or context:
(i) “Act” means the Special Marriage Act, 1954 as from time-to-time modified or amended,
(ii) “Code” means the Code of Civil Procedure, 1908 as from time to time modified or amended,
(iii) “Court” means the Court mentioned in section 2(e) of the Act,
(iv) “Form” means a form prescribed in the Act or appended to the rules,
(v) All other terms and expressions used herein but not defined shall have the meaning respectively assigned
to them in the Act.
 Page 76 of 245
APPENDIX I

4. Petitions to be accompanied by a certificate of marriage.—Every petition made under the Act shall be
accompanied by a certified copy of the Certificate of Marriage entered in the Marriage Certificate Book about the
solemnization of the marriage under the Act, unless the certificate is already on the record is, for sufficient cause,
dispensed with by the Court.

5. Forms of proceedings.—The following proceedings under the Act shall be initiated by petitions:
(i) under section 22 for restitution of conjugal rights;
(ii) under sub-section (1) of section 23 for judicial separation;
(iii) under sub-section (2) of section 23 for rescinding a decree for judicial separation;
(iv) under sub-section (1) of section 24 for declaring a marriage null and void;
(v) under sub-section (2) of section 24 for declaring the registration of marriage to be of no effect;
(vi) under section 25 for annulment of marriage by a decree of nullity;
(vii) under section 27 for divorce;
(viii) under section 28 for divorce by mutual consent;
(ix) under section 38 for making, revoking, suspending or varying orders and

provisions with respect to the custody, maintenance and education of minor children.

6. Petition by or against a person suffering from mental disorder.—A person suffering from mental disorder will
be treated in all respects as a person of unsound mind for the purposes of Order XXXII of the Code.

7. Contents of petition.—In addition to the particulars required to be given under Order VII, rule 1 of the Code and
section 32 of the Act, every petition for judicial separation, nullity of marriage or divorce shall contain the following
particulars:
(a) The place and date of marriage.
(b) The name, status and domicile of the wife and the husband before the marriage and at the time of filing the
petition.
(c) The address where the parties to the marriage reside at the time of the presentation of the petition and last
resided together.
(d) Where the wife petitioner invokes section 31(2) of the Act, the address at which she has ordinarily resided
during the three years immediately preceding the presentation of the petition, and the length of her
residence at each address, and the place of residence of the husband.
(e) The names of the children, if any, of the marriage, their sex and their dates of birth or ages.
(f) If prior to the date of the petition there has been any proceeding under the Act between the parties to the
petition, full particulars thereof.
(g) The matrimonial offence or offences alleged or other grounds upon which the relief is sought, setting out
with sufficient particularity the time and places of the acts alleged, and other facts relied upon, but not the
evidence by which they are intended, to be proved e.g.—
(i) If the petition is for restitution of conjugal rights, the date on or from which and society of the petitioner.
(ii) If the petition is under section 25(ii) of the Act, whether the petitioner was, at the time of the marriage,
ignorant of the facts alleged and whether marital intercourse with the consent of the petitioner has
taken place since the discovery by the petitioner of the existence of the grounds for a decree.
(iii) If the petition is under section 25(iii) of the Act, the parties are of coercion or fraud and the
circumstances in which coercion or fraud had been practised along with the time when the coercion
ceased or the fraud was discovered and whether or not the petitioner has with his or her free consent
lived with the other party to marriage as husband and wife after the coercion had ceased or, as the
case may be, the fraud had been discovered.
 Page 77 of 245
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(iv) If the petition is for judicial separation/divorce on the ground of adultery, the name, occupation and
place of residence of adulterer/adulteress or adulterers/adulteresses, as the case may be, so far as
they can be ascertained.
(v) If the petition is on the ground of desertion, the date and the circumstances in which it began.
(vi) If the petition is on the ground of cruelty, the specified acts of cruelty and the occasion when and the
place where such acts were committed.
(vii) If the petition is on the ground of unsoundness of mind or mental disorder, the time when such
unsoundness of mind or mental disorder began to manifest itself and the nature and the period of the
curative steps taken.
(viii) If the petition is on the ground of venereal disease in a communicable form or leprosy, when such
aliment began to manifest itself and the nature and the period of the curative steps taken.
(ix) If the petition is on the ground specified in clause (h) of section 27 of the Act, the date and the place
where the respondent was last seen or heard of alive and the steps, if any, taken to ascertain his or her
whereabouts.
(x) If the petition is founded on the ground of bestiality, the occasion when, the place where and the
particulars of the beast with whom the husband had been guilty of bestiality.
(xi) If the petition is for divorce under section 27(1A)(ii) of the Act, the particulars of the decree under
section 18 of the Hindu Adoptions and Maintenance Act, 1956 or of order under section 125 of the
Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal
Procedure 1898) together with an affidavit that since the passing of such decree or order, cohabitation
between the parties had not been resumed for one year or upwards.
(xii) If the petition is under section 28 of the Act, the date since when the parties have been living
separately and whether, not they have been able to live together and whether to mutual agreement
dissolving the marriage is verbal evidenced by a document in writing.
(h) Every petition under Chapter V or Chapter VI of the Act shall state that there is no collusion between the
petitioner and the other party to the marriage.
(i) The claim for damages, if any, with particulars.
(j) The relief or reliefs prayed for.

8. Affidavit of non-collusion.—Every petition under Chapter V or Chapter VI of the Act shall be accompanied by
an affidavit to the effect that it is not presented in collusion with the respondent. If the petition is founded on the
ground specified in clause (a) of sub-section (1) of section 27, it will also state that the petitioner has not in any
manner been accessory to or connived at the act or acts of sexual intercourse complained of.

9. Affidavit of non-condonation.—Where the petition is founded on the ground specified in clause (a) of sub-
section (1) of section 27 of the Act or where the ground of the petition is cruelty, the petition shall be accompanied
by an affidavit to the effect that the petitioner has not in any manner condoned the cruelty.

10. Affidavit in the petition on the ground of mutual consent.—Where divorce is sought on the ground of
mutual consent, the petition shall be accompanied by an affidavit to the effect that such consent has not been
obtained by force, fraud or undue influence.

11. Affidavit of non-cohabitation.—Every petition under section 27(2)(i) shall be accompanied by an affidavit
made by the petitioner that there has been no resumption of co-habitation as between the parties to the marriage
for a period of one year or upward after the passing of a decree for judicial separation in a proceeding to which they
were parties.

12. Affidavit of non-restitution of conjugal rights.—Every petition under section 27(2) (ii) shall be accompanied
by an affidavit made by the petitioner of the fact that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.

13. Necessary parties.—

 Page 78 of 245
APPENDIX I

(a) In every petition for divorce/judicial separation on the ground that the respondent has, after the
solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her
spouse, the petitioner shall make the alleged adulterer or adulteress a co-respondent to the petition. The
petitioner may, however, apply to the court on application supported by an affidavit, for leave to dispense
with the joinder of such person as a co-respondent on any of the following grounds:
(i) that the name of such person is unknown to the petitioner although he/she has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom voluntary sexual intercourse has been committed; or
(iv) any other reason that the court considers sufficient.
(b) In every petition under section 24 of the Act on the ground that the condition

specified in clause (a) of section 4 has not been fulfilled, the petitioner shall make the spouse, alleged to be living at
the time of marriage, a co-respondent.

14. Application for leave under section 29 of the Act.—

(1) In support of an application for leave under section 29 of the Act, there shall be filed an affidavit by the
applicant stating the grounds on which the application is made, particulars of the exceptional hardship or
exceptional depravity alleged, whether there has been any previous application under the said section,
whether there are living any children of the marriage, and if so, the names and dates of birth or ages of
such children, their sex where and with whom they are residing, whether any, and if so, what attempts all
reconciliation have been made and any circumstances which may assist the court to determine the
question whether there is reasonable probability of reconciliation between the parties.
(2) Notice of the application shall be given to the respondent who may contest the same by filing affidavit in
opposition.
(3) In exceptional circumstances the court may, if necessary, order a deponent to be cross-examined on his or
her affidavit.
(4) The application shall be accompanied by the petition intended to be filed.
(5) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order provided proper court-fee thereon is paid within the time allowed by the court.

15. Notices.—The court shall issue notice in Form “A” accompanied by a copy of petition to the respondent and the
co-respondent, if any. The notice shall require, unless the court otherwise directs, the respondent or co-respondent
to file his or her written statement in court on or before the date fixed in the notice.

16. Counter-claim.—Where a counter-claim is made in terms of section 23A it shall comply with the rules
applicable to petitions on the like grounds.

17. Damages and costs against co-respondents.—

(1) Whenever in any petition presented by a husband, the person alleged to have committed adultery has
been made a co-respondent and the charge of adultery has been established, the court may order the co-
respondent to pay the whole or any part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs
(a) if the respondent was, at the time of adultery, living apart from her husband and was leading the life of
a prostitute; or
(b) if the co-respondent had not, at the time of voluntary sexual intercourse, reason to believe the
respondent to be a married woman.
(2) The award of costs shall be in the discretion of the court and the court shall make an order of the same
while passing the decree.
 Page 79 of 245
APPENDIX I

(3) Where damages are claimed, the court shall assess the same and direct in what manner the damages, if
any, awarded shall be paid or applied.
(4) The court may assess damages and made an order for payment thereof or of costs notwithstanding that
the respondent or the co-respondent or both of them have remained ex parte.

18. Application for alimony and maintenance.—Every application for maintenance pendente lite, permanent
alimony and maintenance or for custody, maintenance and education expenses of minor children shall be
supported by an affidavit and shall state the average monthly income of the petitioner and the respondent, the
sources of their income, particulars of other movable and immovable property owned by them jointly or severally,
the details of their liabilities, if any, along with the number of their dependents, if any, and the names and ages of
such dependents.

19. Supply of certified copy of the decree of the parties.—

(1) In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall
give a copy thereof free of cost to each of the parties. The copy so supplied shall be authenticated as “true
copy” by the Court passing the decree.
(2) The Court shall maintain a register where the particulars of the decree shall be incorporated and signatures
of the parties or their Advocates or agents shall be obtained in token of their having received a true copy of
the decree.

20.Forms.—The forms given in the Appendix to these rules with such variations as the circumstances of each case
may require, shall be used.

FORM “A”

NOTICE

In the District Court at....................................................

Matrimonial and Divorce Jurisdiction

Case No. .................................................................. Date of Institution

............................Petitioner

Versus

........................Respondent

............................Co-respondent

To

Whereas........................has presented a petition/application against you for........................ under

section........................of the Special Marriage Act, 1954 (No. 43 of 1954). (A copy of the said petition/application is
sent herewith). You are hereby summoned to appear in this Court on the….......….at 10 O’clock in the forenoon to
answer the said petition/application, either in person or by recognised agent duly instructed and able to answer to
answer all martial questions relating to the case, or who shall be accompanied by some other person able to
answer all such questions or by an Advocate similarly instructed or accompanied and you are directed to produce
on that day all documents upon which you intend to rely in support of your defence. You should file an answer to
the petition/application on the date mentioned above.

You are further informed that in default of your appearance on the day and in the manner above-mentioned the
petition/application will be heard and determined in your absence.

Given under my hand and the seal of this Court, this.................................day of........................ Nineteen Hundred
and
 Page 80 of 245
APPENDIX I

Dated........................

By order

District Judge

at

FORM “B”

In the District Court at.........................................................................................

............................Petitioner

Versus

........................Respondent

Petition for the restitution of conjugal rights under section 22 of the Special Marriage Act (No. 43 of 1954).

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnized
under/registered under Chapter II/Chapter III of the Act by the Marriage Officer of ....................... at .......................
on ....................... A certified copy of the certificate of marriage is attached with this petition.

2. The status and place of residence of the parties of the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 81 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 82 of 245
APPENDIX I

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. The respondent has, without reasonable excuse, withdrawn from the society of the petitioner with effect from
....................... The circumstances under which the respondent withdrew from the society of the petitioner be stated.

5. There has not been any unnecessary or improper delay in filing this petition.

6. The petition is not presented in collusion with the respondent.

7. There is no other legal ground why the relief should not be granted.

8. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties.

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized at............................. The parties last resided together at............................. The
parties are now residing at.............................within the local limits of the ordinary original jurisdiction of this Court.

10. The petition submits that this Honb’le Court has jurisdiction to entertain this petition.

11. The petitioner, therefore, prays for a decree for restitution of conjugal rights against the respondent.

Sd/-.................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to.................................of the petition are true
to the petitioner’s knowledge and paras.................................to. .................................are true to the petitioner’s
information received and believed to be true by him/her.

Verified at............................(Place)

Sd/-..................

Petitioner

Dated........................

FORM “C”

In the District Court at..............................................................................

 Page 83 of 245
APPENDIX I

.............................Petitioner

Versus

Respondent

Petition for judicial separation under section 23 of the Special Marriage Act, 1954 (No. 43 of 1954).

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnized
under/registered under. Chapter II/Chapter III of the Act by the Marriage Officer
of.................................at........................on....................

A certified copy of the certificate of marriage is attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follow:
 Page 84 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 85 of 245
APPENDIX I

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. The respondent has(any one or more of the grounds available for judicial

separation may be pleaded here. The matrimonial offences charged should be set in separate paragraphs with
times and places of their alleged commission. The facts on which the claim to relief is founded should be stated in
accordance with the rules and as distinctly as the nature of the case permits.)

5. (Where the ground of petition is adultery). The petitioner has not in any manner been accessory to or connived at
or condoned the adultery.

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. There has not been any unnecessary or improper delay in filing the petition.

8. The petition is not presented in collusion with the respondent.

9. There is no other legal ground why the relief should not be granted.

10. There has not been any previous proceedings with regard to the marriage by or on behalf of the parties.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties.

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

11. The marriage was solemnized at The parties last resided together at ................................. The parties are now
residing at.................................within the local limits of the ordinary original jurisdiction of this Court.

12. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

13. The petitioner, there, prays for a decree for Judicial separation against the respondent.

Sd/-..................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to...................of the petition are true to the
petitioner’s knowledge and paras...................................... to.................................are true to the petitioner’s
information received and believed to be true by him/her.

Verified at............................ (Place)

Sd/-..................
 Page 86 of 245
APPENDIX I

Petitioner

FORM “D”

In the District Court at.........................................................................................................

..........................Petitioner

Versus

......................Respondent

Petition for decree of nullity of marriage under section 24(1) of the Special Marriage Act, 1954 (No. 43 of
1954).

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnized under
Chapter II/registered under, Chapter III of the Act by the Marriage Officer
of.................................at.................................on................................. A certified copy of the certificate of marriage is
attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 87 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 88 of 245
APPENDIX I

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. State here one or more of the grounds on which a decree of nullity is sought. Facts on which the claim to relief is
founded should be stated in compliance with the rules and as distinctly as the nature of the case permits.

5. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

6. There has not been any unnecessary or improper delay in fling this petition.

7. The petition is not presented in collusion with the respondent.

8. There is no other legal ground why the relief should not be granted.

9. The marriage was solemnized at.................the parties reside at........................at Parties last resided together
at................................ .

OR

(Where the petition is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
petitioner is resident within the territories of India except the State of Jammu and Kashmir and has been ordinarily
resident therein for a period of three years immediately preceding the presentation of this petition and the
respondent is not resident in the said territories.

10. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

11. The petitioner, therefore, prays that the marriage solemnized between the parties under the Act being null and
void may be so declared by the court by a decree of nullity.

Sd/-..................

Verification

The above-named petitioner states on solemn affirmation that Paras I to...................of the petition are true to the
petitioner’s knowledge and paras...................................... to.................................are true to the petitioner’s
information received and believed to be true by him.

Verified at............................(Place)

Sd/-..................

Petitioner
 Page 89 of 245
APPENDIX I

Dated........................

FORM ‘E”

In the District Court at.............................................................................................................

.............................Petitioner

Versus

...........................Respondent

Petitioner under section 24(2) of the Special Marriage Act, 1954 (No. 43 of 1954) for having the registration of a
marriage under Chapter III of the Act declared to be of no effect.

The petitioner prays as follows:—

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was registered under
Chapter III of the Act by the Marriage Officer of.................................
at.................................on.................................and it may be deemed to be a marriage solemnized under the Act by
virtue of the provisions of section 18. A certified copy of the certificate of marriage is attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 90 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 91 of 245
APPENDIX I

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex dates of birth or
ages.

4. State here one or more of the statutory grounds on which relief is sought. Facts on which the claim to relief is
founded should be stated as distinctly as the nature of the case permits.

5. There has not been any previous proceedings with regard to the marriage by or on behalf of the parties:—

or

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties.:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

6. There has not been any unnecessary or improper delay in filing this petition.

7. The petition is not presented in collusion with the respondent.

8. There is no other legal ground why the relief should not be granted.

9. The marriage was solemnized at......................... . The parties last resided together at......................... . The
parties are now residing at..........................(within the local limits of the ordinary original jurisdiction of this court).

10. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

11. The petitioner, therefore, prays that the registration of the said marriage under Chapter III of the Act may be
declared by court to be of no effect.

Sd/-.................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to...................of the petition are true to the
petitioner’s knowledge and paras................................. to.................................are true to the petitioner’s information
received and believed to be true by him.

Verified at(Place)

Sd/-..................

Petitioner

Dated........................

FORM ‘F”
 Page 92 of 245
APPENDIX I

In the District Court at.............................................................................................................

..............................Petitioner

Versus

............................Respondent

Petition for the annulment of a marriage under section 25 of the Special Marriage Act, 1954 (No. 43 of 1954).

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnized under
Chapter II/registered under Chapter III of the Act by the Marriage Officer
or.................................at.................................on................................. . A certified copy of the certificate of marriage
is attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 93 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 94 of 245
APPENDIX I

3. In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages.

4. State here one or more of the statutory grounds on which relief is sought. Facts on which the claim to relief is
founded should be stated as distinctly as the nature of the case permits.

5. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

6. There is no other legal ground why the relief should not be granted.

7. The marriage was solemnized at . The parties reside at The parties last resided together at.

OR

(Where the petition is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
petitioner is resident within the territories of India, except the State of Jammu and Kashmir and has been ordinarily
resident therein for a period of there years immediately preceding the presentation of the petition and the
respondent is not resident in the said territories.

8. The petitioner submits that this Hon’ble Court has jurisdiction to entertain this petition.

9. The petitioner, therefore, prays that the marriage between the parties being voidable, may be annulled by the
court by a decree of nullity.

Sd/-

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to...................of the petition are true to the
petitioner’s knowledge and paras................................. to.................................are true to the petitioner’s information
received and believed to be true by him.

Verified at............................ (Place)

Sd/-.................

Petitioner

Dated........................
 Page 95 of 245
APPENDIX I

FORM ‘G”

In the District Court at............................................................................................................

............................Petitioner

Versus

...........................Respondent

Petition for divorce under section 27 of the Special Marriage Act, 1954 (No. 43 of 1954).

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The Marriage between the parties was solemnized under
Chapter II/registered under Chapter III of the Act by the Marriage Officer
or.................................at.................................on................................. . A certified copy of the certificate of marriage
is attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 96 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 97 of 245
APPENDIX I

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages).

4. The respondent has........................ (One or more grounds specified in section 27 of the Act may be
pleaded............................... . The facts on which the claim to relief is founded should be stated in accordance with
the rules and as distinctly as the nature of the case permits).

5. Where the ground of petition is adultery. The petitioner has not in any manner been accessory to or condoned
the adultery.

6. Where the ground of petition is cruelty. The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in instituting the proceedings.

9. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

10. (In petition by a husband for divorce on the ground of adultery where damages are claimed against the co-
respondent, grounds on which the claim to damages is founded should be fully and clearly stated and the amount
claimed and the mode of assessment should be

specified).

11. There is no other ground why relief should not be granted.

12. The marriage was solemnized at....................... . The husband and wife reside at................. . The husband and
wife last resided together at..............(within the local limits of the jurisdiction of this Court).

OR

(Where the petition is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
petitioner is resident within the territories of India except the State of Jammu and Kashmir and has been ordinarily
resident therein of or a period of three yeas immediately preceding the presentation of this petition and the
respondent is not resident in the said territories. (Give particulars according to the Rules).

13. The petitioner submits that this Hon’ble Court has jurisdiction to entertain the petition.

14. The petitioner, therefore, prays that he may be granted a decree of divorce against the respondent, and (to be
scored out if unnecessary) may further be granted a decree for recovery of Rs ............................. as damages
against the adulterer co-respondent.
 Page 98 of 245
APPENDIX I

Sd/-.................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to..................of the petition are true to the
petitioner’s knowledge and paras................................. to.................................are true to the petitioner’s information
received and believed to be true by him.

Verified at(Place)

Sd/-.................

Petitioner

Dated.......................

FORM H”

In the District Court at.............................................................................................

(Husband)

(Wife)

Petition for divorce by mutual consent under section 28 of the Special Marriage Act, 1954 (No. 43 of 1954).

The petitioners pray together as follows:

1. A marriage between the petitioners was solemnized under Chapter II/registered under Chapter III by the
Marriage Officer of.................................at .................................on................................. . A certified copy of the
certificate of marriage is attached to this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 99 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 100 of 245
APPENDIX I

3. (In this paragraph state names of the children, if any, of the marriage together with their sex, dates of birth or
ages).

4. The petitioners have been living separately for a period of one year or more and have not been able to live
together and the petitioners have mutually agreed that the marriage should be dissolved.

5. The consent of either party has not been obtained by force, fraud or undue influence.

6. There is no collusion between the petitioners.

7. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

8. There has not been any unnecessary or improper delay in filing this petition.

9. There is no other legal ground why the relief should not be granted.

10. The marriage was solemnized at............................ . The petitioners reside at........................The petitioners last
resided together at…………..

11. The petitioners submit that this Hon’ble Court has jurisdiction to entertain this petition. The petitioners, therefore,
pray for a decree declaring the marriage to be dissolved with effect from the date of the decree.

Sd/- (Husband)

Sd/- (Wife)

.....................Petitioners

Verification

The above-named petitioners state on solemn affirmation that Paras I to....................... of the petition are true to
their knowledge and paras .......................to .......................are true to their information received and believed to be
true by them.

Verified at...........................(Place)

Sd/- (Husband)

Sd/- (Wife)

Dated.......................... ............................Petitioners
 Page 101 of 245
APPENDIX I

FORM “I”

In the District Court at..................................................................................

........................Applicant

Versus

......................Respondent

Application under section 29 of the Special Marriage Act, 1954 (No. 43 of 1954) praying that a petition for divorce
may be allowed to be presented within one year of the date of entering the certificate of marriage in the Marriage
Certificate Book.

The applicant prays as under:

1. The applicant is the husband/wife of the respondent. The marriage between the parties was solemnized under
Chapter II/registered under Chapter III of the Act by the Marriage Officer of .......................at .......................on
.......................and a certificate of marriage was entered in the Marriage Certificate Book on ....................... . A
certified copy of the certificate of marriage is attached with this application.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
application were as follows:
 Page 102 of 245
APPENDIX I

Husband Wife

Status Age Place of residence Status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
 Page 103 of 245
APPENDIX I

3. (In this paragraph state the names of the children, if any, of the marriage together with their sex, dates of birth or
ages).

4. There is a case of exceptional hardship to the petitioner/exceptional depravity on the part of the respondent
as............................ (state here in accordance with the rules and as distinctly as the exceptional hardship or
depravity, as the case may be).

5. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of court
section of the Act

(i)

(ii)

(iii)

(iv)

6. The marriage was solemnized at................. . The parties resided at................... The parties last resided together
at................................

OR

(Where the application is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
applicant is resident within the territories of India excluding the State of Jammu and Kashmir and has been
ordinarily resident therein for a period of three years immediately preceding the presentation of this application and
the respondent is not resident in the said territories.

7. The applicant, therefore, submits that this Hon’ble Court has jurisdiction to entertain this application.

8. The applicant therefore prays that he/she may be allowed to present a petition for divorce within one year of the
date of entering the certificate of marriage in the Marriage Certificate Book.

Sd/-...................

Applicant

Verification

The above-named petitioner states on solemn affirmation that Paras I to................... of the petition are true to the
petitioner’s knowledge and paras.................................to.................................are true to the petitioner’s information
received and believed to be true by him/her.

Verified at........................... (Place)

Sd/-.................

Applicant

Dated........................
 Page 104 of 245
APPENDIX I

FORM ‘J”

In the District Court at...........................................................................................................

..............................Applicant

Versus

............................Respondent

Application for alimony pendente liteunder section 36 of the Special Marriage Act, 1954 (No. 43 of 1954).

The applicant prays as under:

1. A proceeding under Chapter V/VI of the Act is pending in this court between the parties. (Give the number and
title of the case, date of hearing etc.).

2. The applicant owns no other movable or immovable property, and has no other income except (Give full
particulars of the applicant’s property and income etc.).

3. The applicant has no independent income sufficient for her support and for the necessary expenses of the
proceedings.

4. The respondent has sources of income and owns property mentioned below: (Give full particulars about
respondent’s income and property etc.).

5. The only person dependent upon the respondent is the applicant herself or the applicant.

6. The respondent has not made any provision for the applicant’s maintenance.

7. The applicant submits that having regard to the respondent’s own income and his property and having regard to
the fact that the applicant has no independent income sufficient, for her support and the necessary expenses of the
proceedings, a sum of Rs...........................per week/month as and by way of her support is the just and proper
amount.

8. The respondent may be ordered to pay a sum of Rs.................as the applicant’s expenses of the proceedings
and a sum of Rs..................per week/monthly for applicant’s support during the proceedings.

Sd/-...................

Applicant

Verification

The abovenamed applicant states on solemn affirmation that Paras I toof the application are true to the applicant’s
knowledge and paras....................... to.......................are true to the applicant’s information received and believed to
be true by her.

Verified at......................... (Place)

Sd/-...................

Applicant

Dated....................................

FORM “K”

In the District Court at.....................................................................................

 Page 105 of 245
APPENDIX I

.......................Applicant

Versus

......................Respondent

Application for permanent alimony and maintenance under section 37 of the Special Marriage Act, 1954 (No. 43 of
1954).

The applicant prays as under:

1. A proceeding between the parties under Chapter V/VI of the Act is pending in this court/has been decided (Give
particulars like section of the Act, number and title of case, date of decree or hearing).

2. The applicant owns no other movable or immovable property and has no other source of income
except.........................(Give details of applicant’s income and property etc.).

3. The applicant has no sufficient income for her maintenance and support.

4. The respondent has sources of income and owns property mentioned below. (Give full particulars about
respondent’s income and property etc.).

5. The only person dependent upon the respondent is the applicant herself or the applicant and.

6. The respondent has not made any provision for the applicant’s maintenance and support.

7. The applicant has not conducted herself in any manner which would disentitle her from receiving maintenance
and support from the respondent.

8. The applicant prays that having regard to the income of the parties and their conduct, the respondent may be
ordered to secure to the applicant for her maintenance and support until her death gross/monthly/periodical sum of
Rs.........................and (score out if unnecessary,) the said sum should be made a charge on the respondent’s
property.

Sd/-................

Applicant

Verification

The abovenamed applicant states on solemn affirmation that Paras I to.......................of the application are true to
the applicant’s knowledge and paras......................to................. are true to the applicant’s information received and
believed to be true by her.

Verified at.......................(Place)

Sd/-.................

Applicant

Dated..........................

7. HIMACHAL PRADESH HIGH COURT

HINDU MARRIAGE AND DIVORCE RULES, 19821

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955) and all
 Page 106 of 245
APPENDIX I

other power enabling in this behalf the High Court of Himachal Pradesh, with the prior approval of the Government
of Himachal Pradesh, hereby makes the following rules to regulate the proceedings under the said Act:—

1. Short title and commencement.—

(1) These rules may be called the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982.

(2) These rules shall come into force with effect from the date of their publication in the Himachal Pradesh Rajpatra.

2. Definitions.—In these rules,—

(a) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955), as amended from time to time;
(b) ‘Code’ means the Code of Civil Procedure, 1908 as amended or modified from time to time;
(c) ‘Court’ means the court mentioned in section 3(b) of the Act;
(d) ‘Form’ means a form appended to these rules;
(e) ‘section’ and ‘sub-section’ means, respectively section and sub-section of the Act;
(f) all other terms and expressions used herein, but not defined shall have the meaning respectively assigned
to them in the Act.

3. From the proceedings.—

(1) The following proceedings under the Act shall be instituted by petitions. Each petition shall be numbered as
Hindu Marriage Petition No.........................of 20............................;
(a) under section 9 of the Act for restitution of conjugal rights;
(b) under sub-section (1) of section 10 for judicial separation;
(c) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(d) under section 11 for declaring a marriage null and void;
(e) under section 12 for annulment of marriage by a decree of nullity;
(f) under sections 13 and 13B for divorce;
(g) under section 14 for leave to present a petition for divorce before the expiration of one year from the
date of marriage;
(h) under section 25 for the grant of permanent alimony and maintenance;
(i) under section 26 for making, revoking, suspending or varying orders and provisions with respect to the
custody, maintenance and education of minor children.
(2) Every other proceedings subsequent to the petition shall be treated as an interlocutory application and
shall not be registered separately.

4. Petition.—
(1) Every petition application, affidavit, decree or order under the Act shall be headed by a cause title in Form I
and shall set forth the provision of the Act and/or the rules under which it is made.
(2) Every petition under the Act shall be accompanied by either a certified extract from the Hindu Marriage
Register maintained under section 8 of the Act where the marriage has been registered under the Act or in
absence of the same an affidavit to the effect that the petitioner was married to the respondent.
(3) Every petition for divorce on any grounds mentioned in clauses (i) and (ii) of sub-section (IA) of section 13
of the Act, shall be supported by certified copy of the decree for judicial separation or for restitution of
conjugal rights as the case may be.
(4) Every petition under the Act shall, so far as practicable, conform to the forms appended to these rules.

5. Contents of petition.—In addition to the required, to be given under Order VII, rule I of the Code and section
20(1) of the Act, all petitions under sections 9 to 14 of the Act shall state:
 Page 107 of 245
APPENDIX I

(a) the place and date of marriage;

(b) whether the petitioner and the respondent were Hindus by religion at the time of marriage and whether
they continue to be so upto the date of filing of the petition;
(c) the name, status, domicile of the parties to their marriage before the marriage and the time of filing the
petition;
(d) the place(s) and address(es) where the parties to the marriage have co-habited including the address at
the time of presentation of the petition and where they last resided together;
(e) where there have been previous proceeding with regard to the marriage by or on behalf of any party, if so
the result of those proceedings;
(f) whether any children were born of the marriage and, if so, the date and place of birth, name and sex of
each child separately and whether alive or dead;
(g) the matrimonial offences charged or other grounds, upon which relief is sought setting out with sufficient
particularity, the time and place of the acts alleged, and other facts relied upon but not the evidence by
which they are to be proved, e.g.:
(i) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which respondent withdrew from the society of the petitioner;
(ii) if the petition is for judicial separation/divorce by either of the spouse on the ground that the other party
has, after the solemnization of the marriage had voluntarily sexual intercourse with any other person
other than his or her spouse, the petitioner shall state the name, occupation and place of residence of
such person or persons so far as they can be ascertained, the specific act of sexual intercourse and
the occasion when and the place where such acts were committed;
(iii) in case of the desertion, the date and circumstances in which it began;
(iv) in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts
were committed and that the petitioner has not in any manner condoned such acts of the respondent;
(v) in a petition for decree of nullity of marriage on the grounds specified in clauses (c) and (d) of sub-
section (1) of section 12 of the Act the particulars of force or fraud and the circumstances in which
force or fraud had been practiced alongwith the time when the facts relied upon were discovered and
whether or not marital intercourse with the consent of the petitioner took place after the discovery of
the said facts;
(vi) in the case of unsoundness of mind or mental disorder, the time when such mental disorder or
unsoundness of mind began to manifest itself and the nature and period of curative steps taken;
(vii) in the case of virulent and incurable form of leprosy or venereal disease in a communicable form, when
such ailment began to manifest itself and the nature and the period of curative steps taken;
(viii) in the case of conversion to another religion or of renouncing the world by entering any religious order,
the date of renunciation or conversion and the particulars of religion or of religious order to which the
respondent has entered into;
(ix) in the petition on the ground specified in clause (vii) of sub-section (1) of section 13 the date and place
where the respondent was last seen or heard alive and the steps, if any, taken to ascertain his or her
whereabouts;
(x) where the petition is founded on any of the grounds specified in clause (ii) of sub-section (2) of section
13 of the Act, the occasion, place where and the name and address of the persons with whom the acts
of rape or sodomy were committed or the particulars of the beast with whom the husband had been
guilty of bestiality. In case of conviction for committing rape or sodomy, the particulars thereof;
(xi) in petition for divorce on the ground specified in clause (iii) of sub-section (2) of section 13 of the Act,
particulars of the decree under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or of an
order under section 125 of the Code of Criminal Procedure, 1973, together with an affidavit that since
the passing of such decree or order, there has been no co-habitation between the parties for a period
of one year or upwards;
(xii) in the case of a petition under clause (iv) of sub-section (2) of section 13 of the Act, the date and place
of birth of the wife together with the date and place of repudiation and its mode;
 Page 108 of 245
APPENDIX I

(xiii) the property mentioned in section 27 of the Act, if any;

(xiv) the reliefs prayed for.

6. Affidavits.—
(1) Every petition under section 13B of the Act, the grounds of consent for divorce narrated in the petition shall
be supported by separate affidavits of the parties stating that the consent has not been obtained by force,
fraud or undue influence.
(2) Every petition except petitions under sections 11 and 13B shall be accompanied by an affidavit to the effect
that it is not presented or prosecuted in collusion with the respondent.
(3) The petition for divorce/judicial separation on the ground that the other party has, after the solemnization of
the marriage had voluntary sexual intercourse with any person other than his or her spouse, shall be
supported by an affidavit to the effect that the petitioner has not, in any manner, been an accessory to or
connived at or condoned the act or acts complained of.
(4) The petition on the ground specified in clause (1A) of sub-section (1) of section 13 or on the ground of
cruelty, shall be accompanied by an affidavit to the effect that the petitioner has not condoned the act
accompanied of.
(5) Every petition under clause (i) of sub-section (1A) of section 13 of the Act, shall be accompanied by an
affidavit made by the petitioner that there has been no resumption of co-habitation as between the parties
to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in
the proceedings to which they were parties.
(6) Every petition under clause (ii) of sub-section (1A) of section 13 of the Act shall be accompanied by an
affidavit made by the petitioner to the effect that there has been no restitution of conjugal rights as between
the parties to the marriage for a period of one year upwards after the passing of a decree for restitution of
conjugal rights in the proceedings to which they were parties.

7. Necessary parties.—
(1) In every petition for judicial separation or divorce on the ground that the respondent has, after the
solemnization of marriage had voluntary sexual intercourse with any person other than his/her spouse, the
petitioner shall make the alleged adulterer or adulteress as co-respondent:

Provided that the joinder of such adulterer or adulteress as a co-respondent may be dispensed with by the
court, on application of the petitioner on the following grounds:—
(a) that the name of such person is unknown to the petitioner although he/she made due efforts for
discovery;
(b) that such person is dead;
(c) that the respondent-wife is leading a life of a prostitute that the petitioner knows of no person with
whom voluntary sexual intercourse has been committed; or
(d) any other reason that the court considers sufficient.
(2) In every petition under section 11 of the Act, on the ground that the respondent had a spouse living at the
time of his/her marriage with the petitioner, such other spouse shall be made a co-respondent.
(3) In every petition under section 13(2)(i) of the Act, the petitioner shall make “the other wife” mentioned in
that section a co-respondent.

8. Petition by or against a person suffering from mental disorders.—A person suffering from mental disorder
will be treated in all respects as a person of unsound mind for the purpose of Order XXXII of the Code.

9. Petition of minor.—
(1) Where the petitioner is minor, he/she shall sue through his/her next friend, to be approved by the court,
and no petition under the Act on behalf of the minor shall be filed until the next friend has undertaken in
writing to be liable for costs. Such undertaking shall be filed in court along with the petition, and the next
friend shall thereupon be liable for costs in the same manner and to the extent as if he were a plaintiff in an
ordinary suit.
 Page 109 of 245
APPENDIX I

(2) Every petition on behalf of the minor shall be supported by an affidavit of the next friend stating:
(a) the age and date of birth of the minor;
(b) that the next friend has no interest adverse to that of the minor;
(c) that the next friend is a fit and proper person to act as such; and
(d) the relationship, if any, of the next friend with the minor.
(3) The court shall, on consideration of the affidavit and such other evidence, as it may require record its
approval to the representation of the minor by the next friend or pass such orders as it may deem fit.

10. Presentation of petition.—Every petition or application under the Act shall be presented to the court in person
or through Advocate or Pleader or a recognized agent.

11. Notice to respondent.—

(1) A notice of every petition or application under the Act shall be issued to the respondent(s) in Form II to
appear and answer the claim on a day to be specified therein:

Provided that no such notice would be necessary when the respondent appears, either in person or through
counsel or agent, at the time of presentation of the petition or application.
(2) Every notice issued under sub-rule (1) above shall be accompanied by a copy of the petition or application
and the affidavit, if any. The petitioner or applicant shall, alongwith the petition or application, file the
required number of copies of the petition or application and the affidavit, if any, together with the process
fee prescribed under the law.

12. Application for leave.—

(1) Every application under section 14 of the Act for leave shall be supported by an affidavit of the applicant
stating:
(a) the grounds on which the application is made;
(b) the particulars of the exceptional hardship and depravity alleged;
(c) whether there has been any previous application under the said section if so, with what result;
(d) whether there are living children of the marriage, if so, the names and dates of birth of ages of such
children, sex and where and with whom such children are residing;
(e) where there has been any attempt at reconciliation;
(f) the circumstances which may assist the court to determine the question whether there is a reasonable
probability of a reconciliation between the parties.
(2) Notice of the application shall be given to the respondent who may contest the same by filing counter-
affidavit.
(3) Evidence, if any, in support or against the application may, unless the court otherwise directs, be given by
affidavits.
(4) The court may, if necessary in exceptional circumstances, either of its own motion or on the application of
the party, order a deponent to be cross-examined on his/her affidavit.
(5) Every application under section 14 of the Act, shall be accompanied by the petition intended to be filed.
(6) On the leave having been granted by the court, the petition shall be deemed to have been duly filed on the
date of the said order, provided the court-fee thereon is paid within the time allowed by the court.

13. Contents of written statement.—

(1) Every written statement in answer to a petition shall set out the particulars, as far as may be, set out in rule
5 above.
(2) Where a counter-claim is made in terms of section 23A of the Act, it shall comply with the rules applicable
to the petition on the like grounds.
 Page 110 of 245
APPENDIX I

14. Intervener’s petitions.—

(1) Unless the court for good cause shown otherwise directs, where the written statement of the respondent
alleges adultery by the petitioner with a named man or woman, a certified copy of such statement of such
material portion thereof containing such allegations shall be served on such man or woman accompanied
by a notice that such person is entitled within the time therein specified to apply for leave to intervene in the
case.
(2) Every application for leave to intervene in the case shall be accompanied by an affidavit of the intervener.
(3) Notice of the application together, with a copy of the application and affidavit shall be served on all parties
who shall be at liberty to file counter-affidavits.
(4) If, after hearing all the parties, the court grants leave, the intervener may take part in the trial subject to
such terms and conditions as the court may deem fit to impose.
(5) A person to whom leave to intervene has been granted, may file in the court an answer to the petition or
written statement containing the charges against such intervener.
(6) Thenceforth the intervener shall be treated as a party to the proceedings and shall be liable or entitled to
costs, as the case may be, according to law.

15. Mode of taking evidence.—The witnesses in all proceedings under the Act before the court shall be examined
orally and any party may offer himself or herself as a witness and shall be examined and may be cross-examined
and re-examined like any other witness.

16. Applications for alimony and maintenance.—Every application for maintenance pendente lite, permanent
alimony and maintenance or for custody, maintenance and education expenses of minor children shall be
supported by an affidavit and shall state:
(a) the average monthly income of the petitioner;
(b) the sources of their income;
(c) particulars of other movable and/or immovable property owned by them jointly or severally;
(d) the details of liabilities, if any, alongwith the number of their dependents, if any, and the names and ages of
such dependents.

17. Custody of children.—The petitioner or respondent spouse or the guardian of any child of marriage may, at
any time, either before or after the decree, apply to the court for the custody for education of the children of the
marriage and the court may pass such orders as may be deemed fit subject to the provisions of section 26 of the
Act.

18. Costs against co-respondent.—

(1) The court may also direct the whole or any part of the costs of the petition be paid by the co-respondent:

Provided that a co-respondent shall not be ordered to pay the petitioner’s costs:
(a) if the co-respondent had, at the time of commission of such acts, no reason to believe the respondent
to be a married woman; or
(b) if the respondent wife at the time of voluntary intercourse was living apart from her husband and
leading the life of a prostitute.
(2) The court may assess costs and make an order for payment thereof notwithstanding that the respondent or
the co-respondent or both of them have remained ex parte.

19. Pleaders fee.—Pleader’s fee may be fixed by the court as it may consider appropriate taking into consideration
the nature of the proceedings and the status of the parties.

20. Taxation of costs.—Unless otherwise directed by the court, the costs of the petition under the Act shall be
costs as taxed in a civil suit.

21. Register to be maintained.—Every court shall maintain a register in which the details regarding petitions shall
be entered and shall conform to Civil Register No. III maintained for divorce and matrimonial cases.
 Page 111 of 245
APPENDIX I

22. Supply of certified copies.—

(1) In every case where a marriage is dissolved by decree of divorce, the court passing the decree shall give a
copy thereof free of cost to each of the parties. The copy so supplied shall be authenticated as “true copy”
by the Reader of the court passing the decree.
(2) The court shall maintain a register where the particulars of the decree shall be incorporated and signatures
of the parties or their Advocates or agents shall be obtained in token of their having received a copy of the
decree.
(3) The court shall send a certified copy of every decree for divorce or nullity of marriage or dissolution of
marriage, where the marriage had been registered under section 8 of the Act, to the Register of Marriage
in-charge of the Hindu Marriage Act Registrar, if any.

23. Forms.—The forms given in the Appendix to these rules shall, with such modifications and variations as the
circumstances of each case may require, be used in the proceedings under the Act.

24. Trial.—The trial of a petition under the Act, so far as is practicable, be continued from day to day until its
conclusion and every endeavour shall be made to conclude the trial within six months from the service of the notice
of the petition of the respondent.

25. Appeal.—Appeal to the High Court from decree and orders of the court shall be governed by the appellate side
rules of the High Court as far they may be applicable.

26. Repeal.—The rules framed by the erstwhile Court of Judicial Commissioner, Himachal Pradesh as published
under notification No. J.C. 16 (148-59) dated 17th December, 1959 and the rules contained in Chapter I-E, Part E,
Vol. II, of the Punjab High Court Rules and Orders as applicable to Himachal Pradesh shall stand repealed.

FORM NO. 1

In the Court of.............................at..............................

H.M. Petition No...............................of 20..................................

In the matter of Hindu Marriage Act, 1955.

A.B.................................................................................................................................................Petitioner

versus

C.D......................................................................................................................................Respondent
...............................................................................................................................................Co-respondent Petition
under section..............................of the Hindu Marriage Act, 1955 and rule............................of the Rules under the
Hindu Marriage Act.

FORM NO. 2

In the Court of.....................................at..............................

H.M. Petition No...............................of 20..............................

In the matter of Hindu Marriage Act, 1955.

......................................................................................................................................................Petitioner

versus

.............................................................................................................................................Respondent(s)

To
 Page 112 of 245
APPENDIX I

..............................

..............................

..............................

Take notice that the petitioner..............................abovenamed, has presented a petition/application against you
for....................... under section..............................of the Hindu Marriage Act, 1955 (25 of 1955). Copy of the said
petition/application is sent herewith.

You are hereby directed to appear in this Court on........................ day of .............................. 20.............................at
10 a.m. to answer the said petition/application either in person or by a recognized agent or an Advocate duly
instructed and able to answer all material questions relating to case and you are further directed to produce on that
day all documents upon which you intend to rely in support of your defence. Written statement/reply if any be filed
on the said date.

You are further informed that in default of your appearance on the day and in the manner above mentioned, the
petition/application shall be heard and determined ex parte.

Given under my hand and seal of the Court, this.......................day of............... ...............20...........

Judge

At..............................

FORM NO. 3

In the District Court at.......................

...................................................................................................................................Petitioner

versus

...............................................................................................................................Respondent

Petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties on................. at......................A certified extract from the Hindu
Marriage Register/an affidavit duly attested is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:

[Whether a party is a Hindu by religion or not is a part of his or her status. Also state whether bachelor/spinster,
widow(er) or divorcee].

3. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth, and name and sex of each child and the fact whether
alive or dead should also be stated].
 Page 113 of 245
APPENDIX I

...........................................................................................................

...........................................................................................................

4. The respondent has, without reasonable excuse, withdrawn from the society of the petitioner with effect
from...................................... (cause of the estrangement, as known to the petitioner may be stated).

5. The petition is not presented in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing this petition.

7. There is no other legal ground why relief should not be granted.

8. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

These have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized at......................................

OR

The husband and wife resided at......................................

OR

The husband and wife last resided together at.................... .................. within the local limits of the ordinary original
civil jurisdiction of this court.

10. The petitioner prays for a decree for restitution of conjugal rights against the respondent.

Sd/-

....................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to......................................of the petition are
true to the best of the petitioner’s information and belief.

Verified at......................................(Place).

Dated.........................................................
 Page 114 of 245
APPENDIX I

Sd/-

.....................

Petitioner

FORM NO. 4

In the District at...………………………........

..................................................................................................................................................Petitioner

..................................................................................................................................................Petitioner

versus

.........................................................................................................................................Co-respondent

Petition for judicial separation under section 10 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties on.................... at....................................A certified extract from
the Hindu Marriage Register/an affidavit duly attested is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of residence
of the petition were as follows:

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated).

4. The respondent has......................................(any one or more of the grounds specified in section 10 may be
pleaded here. The matrimonial offences charged should be set in separate paragraph, with times and places of
their alleged commission. The facts on which the claim to relief is founded should be stated as distinctly as the
nature of the case permits. If adultery is pleaded the petitioner should give particulars, as nearly as he can of the
acts of adultery alleged to have been committed).

5. Where the ground of petition is the ground specified in section 13(1)(i), the petitioner should state that he has not
in any manner, been accessory to or connived at or condoned the act(s) complained of.

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. The petition is not presented in collusion with the respondent.

8. There has not been any unnecessary or improper delay in filing this petition.
 Page 115 of 245
APPENDIX I

9. There is no other legal ground why the relief should not be granted.

10. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

11. The marriage was solemnized at......................................

OR

The husband and wife resided at......................................

OR

The husband and wife last resided together at................................ within the local limits of the ordinary original civil
jurisdiction of this Court.

12. The petitioner, therefore, prays for a decree for judicial separation against the respondent.

Sd/-

.....................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I toof the petition are true to the best of the
petitioner’s information and belief.

Verified at...................................... (Places)

Dated.................... Sd/-

.....................

Petitioner

FORM NO. 5

In the District Court..........................................

.............................................................................................................................................Petitioner

versus
 Page 116 of 245
APPENDIX I

.........................................................................................................................................Respondent

Petition for a decree of nullity of marriage under section 11 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:—

1. A marriage was solemnized between the parties after the commencement of the Hindu Marriage Act
on...........................at......................................A certified extract from the Hindu Marriage Register/affidavit duly
attested, is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. [The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated].

4. The respondent had a spouse living at the time of the marriage (State full particulars).

OR

The parties are within the degrees of prohibited relationship and there is no custom or usage governing each of
them which permits of a marriage between the two. (Exact relationship between the parties should be given).

OR

The parties are sapindas of each other and there is no custom or usage governing each of them which permits of a
marriage between the two. (Exact relationship between the parties should be specified).

(One or more of the above ground may be pleaded and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraph with times and places of their alleged
commission).

5. There has not been any unnecessary or improper delay in filing the petition.

6. There is no other legal ground why the relief should not be granted.

7. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
 Page 117 of 245
APPENDIX I

proceedings with of the case of the court

section of the Act

(i)

(ii)

(iii)

(iv)

8. The marriage was solemnized/parties reside/parties last resided together at...............................…….within the
local limits of the ordinary original civil jurisdiction of this court.

9. The petitioner, therefore, prays that the marriage solemnized between the parties being null and void may be so
declared by the court by a decree of nullity.

Sd/-

.....................

Petitioner

Verification

The above-named petitioner states on solemn affirmation the Paras 1 to.....................................of the petition are
true to the best of the petitioner’s knowledge and belief.

Verified at...................................... (Place).

Dated......................................

Sd/-

.....................

Petitioner

FORM NO. 6

In the Court at............................................

.............................................................................................................................................Petitioner

versus

.........................................................................................................................................Respondent

Petition for the annulment of a marriage under section 12 of the Hindu Marriage Act, 1955 (25 of 1955).

The petitioner prays as follows:

1. A marriage was solemnized between the parties on ........................ at..............................A certified extract from
the Hindu Marriage Register/an affidavit duly attested is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 118 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated).

4. The respondent was impotent at the time of the marriage and continued to be so until the institution of these
proceedings.

OR

The respondent was an idiot/lunatic at the time of marriage.

OR

The consent of the petitioner/guardian of the petitioner was obtained by force/fraud and the petition is presented
within one year after the force has ceased to operate/fraud had been discovered and the petitioners has not with
his/her full consent, lived with the other party to the marriage as husband/wife after the force has ceased to
operate/fraud had been discovered.

OR

The respondent was at the time of the marriage pregnant by some person other than the petitioner and the
petitioner was at the time of marriage ignorant of this fact and the proceedings have been instituted with one year
from the date of the marriage and marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of respondent’s pregnancy by some person other than the petitioner.

(One or more of the above grounds may be pleaded and the portions which are not applicable should be scored
out. Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits.
The matrimonial offence charged should be set in separate paragraphs with the time and place of their alleged
commission).

5. The petition is not instituted in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing this petition.

7. There is no other legal ground why the relief should not be granted.

8. There has not been any previous proceedings with regard to the marriage or by on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
 Page 119 of 245
APPENDIX I

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized/the parties reside/the parties last resided together at................. .....................within
the limits of ordinary original civil jurisdiction of this court.

10. The petitioner, therefore prays that the marriage between the parties being voidable may be annulled by the
court by a decree of nullity.

Verification

The abovenamed petitioner states on solemn affirmation that Paras I to ..........of the petitioner true to the best of the
petitioner’s information and belief.

Sd/-

.....................

Petitioner

Verified...................................... (Place).

Dated.........................................

FORM NO. 7

In the District Court at............................

..................................................................................................................................................Petitioner

..............................................................................................................................................Respondent

versus

.........................................................................................................................................Co-respondent

Petition for dissolution of marriage by a decree of divorce under section 13 of the Hindu Marriage Act, 1955 (25 of
1955).

The petitioner prays as follows:—

1. A marriage was solemnized between the parties on........................ at.......... .......................A certified extract from
the Hindu Marriage Register/an affidavit, duly attested, is filed herewith.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 120 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated).

4. The respondent...................................... (One or more of the grounds specified in section 13 may be pleaded
here. The facts on which the claim to relief is founded should be stated as distinctly as the nature of the case
permits. If adultery is pleaded the petitioner should give particulars as nearly as he can, of the acts of adultery
alleged to have been committed. The matrimonial offences charged should be set in separate paragraphs with the
times and places of their alleged commission. If the ground specified in clause (viii) of section 13(1) is pleaded the
petition should be accompanied by an affidavit of the petition on the effect that he or she has not resumed co-
habitation for a period of one year or upwards of the passing of the decree for judicial separation.)

5. (Where the ground of petition is the ground specified in clause (i) of sub-section (1) of section 13 the petitioner
has not in any manner been accessory to or connived at or condoned the act(s) complained of).

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.

7. Any other ground mentioned in section 13.

8. The petition is not presented in collusion with the respondent.

9. There has not been any unnecessary or improper delay in filing this petition.

10. There is no other legal ground why the relief should not be granted.

11. There has not been any previous proceedings with the regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Remarks
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

12. The marriage was solemnized/the husband the wife reside/the husband and wife last resided together
at.................................within the limits of the ordinary original civil jurisdiction of this court.
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APPENDIX I

13. The petitioner, therefore, prays that the marriage between the petitioner and the respondent may be dissolved
by a decree of divorce.

Sd/-

.....................

Petitioner

Verification

The abovenamed petitioner states on solemn affirmation that Paras 1 to......................................of the petition are
true to the best of the petitioner’s information and belief.

Verified at...................................... (Place).

Dated.........................................................

Sd/-

.....................

Petitioner

FORM NO. 8

In the District Court at.............................................

.................................................................................................................................................Applicant

versus

.............................................................................................................................................Respondent

Application under section 14 of the Hindu Marriage Act, 1955 (25 of 1955) praying that a petition of divorce may be
allowed to be presented before one year has elapsed since the date of marriage.

The applicant prays as follows:

1. A marriage was solemnized between the parties on ....................... at..................................A certified extract from
the Hindu Marriage Register/an affidavit, duly attested is filed herewith.

2. The status and place of residence of the parties to the marriage, before and at the time of filing the petition were
as follows:

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. [In this paragraph particulars and place(s) of co-habitation between husband and wife and the children from the
 Page 122 of 245
APPENDIX I

marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated].

4. This is a case of exceptional hardship to the petitioner/exceptional depravity on the part of the respondent as
(state as distinctly as the nature of the case permits the particulars about the exceptional hardship or depravity, as
the case may be).

5. The marriage was solemnized/the parties reside/the parties last resided together at................ ......................within
the original civil jurisdiction of the court.

6. The applicant, therefore, prays that he/she may be allowed to present a petition for divorce before one year has
elapsed since the date of marriage.

Sd/-

.....................

Petitioner

Verification

The abovenamed applicant states on solemn affirmation that Paras 1 to......................................of the application
are true to the best of the applicant’s information and belief.

Verified at......................................(Place).

Dated......................................................... Sd/-

...................

Applicant

FORM NO. 9

In the District Court at.......................................................

.................................................................................................................................................Applicant

versus

.............................................................................................................................................Respondent

Application for maintenance pendente lite and for expenses of proceedings under section 24 of the Hindu Marriage
Act, 1955 (25 of 1955).

The applicant prays as follows:

1. A proceeding for...........................under section.....................of the Hindu Marriage Act, 1955, is pending between
the parties in this Court. The particulars are as follows:

No. and Year of the case Name of parties Next date of hearing Remarks

2. The applicant owns no other movable or immovable property and has no other source of income except
.............................. (Give full particulars of the petitioner’s property and income).

3. The applicant has no independent income sufficient for his/her support and the necessary expenses of the
proceedings. No provision has been made by respondent for the maintenances of the petitioner.
 Page 123 of 245
APPENDIX I

4. The respondent has sources of income and owns property mentioned below:

............................. (Give full particulars about respondent’s income and property).

5. The only person dependent upon the respondent is the petitioner himself/herself or the petitioner and
............................. (Give the details of the liabilities, if any, of the parties alongwith the details of dependents, if any,
with the name, sex and ages of such dependents.)

6. The petitioner prays that the respondent should be ordered to pay a sum of Rs........................ ...............as the
petitioner’s expenses of the proceedings and a sum of Rs .......................................monthly for petitioner’s
maintenance during the proceedings.

Sd/-

.....................

Applicant

Verification

The abovenamed applicant states on solemn affirmation that Paras I to......................................of the petition are
true to the best of the petitioner’s information and belief.

Verified at...................................... (Place).

Dated..........................................................

Applicant

FORM NO. 10

In the District Court at.............................................................

.................................................................................................................................................Applicant

versus

.............................................................................................................................................Respondent

Application for permanent alimony and maintenance under section 25 of the Hindu Marriage Act, 1955 (25 of 1955).

The applicant prays as follows:—

1. A proceeding between the parties for.................................under section ............... ...................... ..............of the
Hindu Marriage Act, 1955 is pending/in/was decided by this court particulars of which are given below:

No. and Year of the case Name of parties Date of decision or next Remarks
hearing

2. The applicant owns no other movable or immovable property and has no other source of income
except................................(Give full particulars about petitioner’s income and property). No provision has been
made by the respondent for the maintenance of the petitioner.

3. The respondent has sources of income and owns property mentioned below:

...................................... (Give full particulars about respondent’s income and property).

 Page 124 of 245
APPENDIX I

4. The applicant has not remarried and has not been guilty of any conduct which disentitle him/her to receive
maintenance from the respondent.

5. The petitioner prays that the respondent should be ordered to pay sum of Rs......................... ..............petitioner’s
expenses of the proceeding and a sum of Rs.......................................monthly for petitioner’s maintenance during
the proceedings.

6. The applicant prays that having regard to the income of the parties and their conduct, and other circumstances of
the case, the respondent may be ordered to pay to the petitioner for his/her maintenance and support until death or
remarriage a gross/monthly/periodical sum of Rs............ ........................... and (score out if not necessary) such
payment may be secured by a charge on the immovable property of the respondent.

Sd/-

.....................

Applicant

Verification

The abovenamed applicant states on solemn affirmation that Paras 1 to......................................of the application
are true to the best of the applicant’s information and belief.

Verified at......................................(Place). Sd/-

...................

Applicant

FORM NO. 11

In the District Court at......................................

In the matter of:

................................................................................................................................................Petitioner

versus

.............................................................................................................................................Respondent

Petition for dissolution of marriage by a decree of divorce by natural consent, as provided under section 13B(1) of
the Hindu Marriage Act, 1955.

The petitioner and the respondent both pray as follows:

1. A marriage was solemnized between them (petitioner and respondent) at.............................on according to Hindu
rites, their affidavits to that effect are enclosed (or a certified copy of the extract from the Hindu Marriage Register is
filed herewith).

2. That the status and place of residence of the parties to the marriage, before the marriage and the time of filing
the petition were as follows:
 Page 125 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. [In this paragraph particulars and place(s) of stay of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child, and the fact whether
alive or dead should also be stated].

4. That the parties to the petition have been living separately since.....................................and have not been able to
live together since then.

5. That the parties have mutually agreed that their marriage should be dissolved.

6. That the consent has not been obtained by force, fraud or undue influence.

7. That there have not been an unnecessary or improper delay in the institution of the proceedings.

8. That there is no other legal ground why the relief prayed for should not be granted.

9. That there has not been any previous proceedings between the parties with regard to the marriage.

OR

That there has been the following previous proceedings between the parties with regard to marriage:

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

10. That the marriage was solemnized at..................The parties last resided together at...................................... The
parties are now residing at.................. ....................within the local limits of ordinary jurisdiction of this court. The
court has jurisdiction to entertain this petition.

11. The parties, therefore, pray that the marriage between them may be dissolved by a decree of divorce.

Sd/-

.....................

Petitioner

Sd/-
 Page 126 of 245
APPENDIX I

.....................

Respondent

Verification

The abovenamed parties state on solemn affirmation that Paras I to....... ...............................of the petition are true
to their knowledge and paras......................................to..........................................are true to their information
received and believed by them to be true.

Verified at...................................... (Place).

Dated..........................................................

Sd/-

.....................

Petitioner

Sd/-

.....................

……

Respondent

FORM NO. 12

In the Court of.............................at......................................

H.M. Misc. Petition No...............................of 20.........................

In the matter of Hindu Marriage Act, 1955.

.................................................................................................................................................Petitioner

versus

.................................................................................................................................................Petitioner

This petition came in on for final hearing before this Court in the presence of Shri .........................
.............Advocate, for the petitioner and Shri.................... ..................Advocate, for the respondent, the Court being
satisfied that (here set out all or any of the ground specified in section 23 of the Act, as the particular case may
require which the Court considers exist for granting relief) it is ordered and decreed that (here give the description
of the order).

Given under my hand and the seal of the Court this.................. day of..............................20...........

SEAL

District Judge.

8. GUWAHATI HIGH COURT

(1) HINDU MARRIAGE AND DIVORCE RULES, 19551
 Page 127 of 245
APPENDIX I

The High Court of Assam has been pleased to make the following Rules under sections 14 and 21 of Hindu
Marriage Act, 1955 (25 of 1955). The rules will take effect from the date of publication in the Assam Gazette.

1. Short title.—These rules may be called the Hindu Marriage and Divorce Rules, 1955.

2. Definitions.—
(i) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) “Code” means the Code of Civil Procedure, 1908.
(iii) “court” means the court mentioned in section 3(b) of the Act.
3.
(i) Every petition under the Act shall be accompanied by certified extract from Hindu Marriage Register
maintained under section 8 of the Act.
(ii) Every petition for divorce on any of grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 132 of the Act shall be accompanied by a certified copy of the decree for judicial separation or
for restitution of conjugal rights as the case may be.
4. Contents of petition.—In addition to the particulars required to be given under Order VII, rule 1 of the Code
and section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall
contain the following particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of wife and husband, before and after the marriage;
(c) the principal permanent address where the parties lived including the address where they last resided
together;
(d) whether there is living any issue of the marriage and, if so, the names and dates of birth or ages of such
issues—
(i) in every petition presented by a husband for divorce on the ground that his wife is living in adultery with
any person or persons or for judicial separation on the ground that his wife has committed adultery with
any person or persons the petitioner shall state the name, occupation and place of residence of such
person or persons so far as they can be ascertained;
(ii) in every petition presented by a wife for divorce on the ground that her husband is living in adultery
with any woman or women, or for judicial separation on the ground that her husband has committed
adultery with any woman or women, the petitioner shall state the name, occupation and place of
residence of such woman or women, so far as they can be ascertained;
(e) whether there have been in any court in India, and if so, what previous proceedings with reference to the
marriage by or on behalf of either of the parties and the result of such proceedings;
(f) the matrimonial offence or offences charged set out in separate paragraphs with the time and place of its
or their alleged commission;
(g) property mentioned in section 27 of the Act, if any;
(h) the relief or reliefs prayed for.

5. Necessary parties.—
(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or
has committed adultery with any person the petitioner shall make such person a co-respondent. The
petitioner may, however, apply to the court by an application supported by an affidavit for leave to dispense
with the joinder of such person as a co-respondent on any of the following grounds:—
(i) that the name of such person is unknown to the petitioner although he has made due efforts for
discovery;
(ii) that such person is dead;
 Page 128 of 245
APPENDIX I

(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom adultery has been committed;
(iv) for any other sufficient reason that the court may deem fit to consider.
(b) In every petition under section 13(2)(i) of the Act the petitioner shall make ‘the other wife’ mentioned in that
section a co-respondent.
(c) In every petition under section 11 of the Act on the ground that the condition in section 5(1) is contravened
the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

6. Verification of petition.—Statements contained in every petition shall be verified by the petitioner or some other
competent person in a manner required by the Code.

7. Forms of petition.—The petitions made under the Act shall so far as possible, be made in the forms prescribed
in the Schedule to the Indian Divorce Act, 1869 (4 of 1869).

8. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within three years1 of such marriage
he or she shall obtain leave of the court under section 14 of the Act, on ex parte application made to the
court in which the petition for divorce is intended to be filed.
(2) The application shall be accompanied by the petition intended to be filed bearing the proper court-fee
under the law and in accordance with the rules. The application shall be supported by an affidavit made by
the petitioner setting out the particulars of exceptional hardship to the petitioner or exceptional depravity on
the part of the respondent on which leave is sought.
(3) Evidence in such application may, unless otherwise directed by the court, be given by affidavit.
(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. The petitioner within a week of the date of the said order shall file sufficient number of copies of
application for leave and order of the court thereon and of the petition for divorce for service upon the
respondents in the petition.

9.Service of copy of application for and order granting leave on the respondents and procedure after
service.—
(1) When the court grants leave under the preceding rule a copy of the application for leave and order granting
leave shall be served on each of the respondents along with the notice of the petition for divorce.
(2)
(a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her
written statement the grounds with particulars on which the grant of leave is sought to be contested.
(b) The court may, if it deems fit frame, try and decide the issue as to the propriety of leave granted as a
preliminary issue.
(c) The court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.

10. Notice.—The court shall issue notice to the respondent and co-respondent, if any. The notice shall be
accompanied by a copy of the petition. The notice shall require unless the court otherwise directs, the respondent
or the co-respondent to file his or her statement in court within a period of four weeks from the service of the notice
and to serve a copy thereof upon each of the other parties to the petition within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served upon the party affected thereby
in the manner provided for service of summons under Order V of the Code:

Provided that the court may dispense with such service altogether if it seems necessary or expedient so to do.

12. Written statements in answer to petitions by respondents.—The provisions of Order VIII of the Code shall
apply mutatis mutandis to the written statement, if any, presented by the respondent in answer to the petition. In
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APPENDIX I

particular, if in any proceedings for divorce the respondent opposes the relief sought in the petition on the ground of
the petitioner’s adultery, cruelty or desertion, the written statement shall state the particulars of such adultery,
cruelty or desertion.

13. Intervenor’s petition.—

(1) Where the written statement of the respondent alleges adultery by the petitioner with a named man or
woman, a certified copy of such statement or such material portion thereof containing such allegation shall
be served on such man or woman accompanied by a notice that such person is entitled within the time
specified in the notice to apply for leave to intervene in the cause unless the court for good cause shown
otherwise directs.
(2)
(a) Cost regarding intervention.—Whenever the court finds that an intervenor had no sufficient grounds to
intervene, it may order the intervenor to pay the whole or any part of the costs occasioned by the
application to intervene.
(b) When the court finds that the charge or allegation of adultery against the intervenor made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
the person making such charge or allegation against the intervenor to pay to the intervenor the whole
or any part of the costs of intervention.

14. Answer.—A person to whom leave to intervene has been granted may file in court an answer to written
statement containing the charges or allegations against such intervenor.

15. Mode of taking evidence.—Any party may offer himself as a witness, and shall be examined and may be
cross-examined like any other witness in all proceedings before the court and where their attendance can be had,
shall be examined orally:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit but the
deponent in every such affidavit shall on the application of the opposite party, or by direction of the court, be subject
to be cross-examined orally, by or on behalf of the opposite party by whom such affidavit was filed and after such
cross-examination may be re-examined orally as aforesaid.

16. Costs.—Whenever in any petition presented by a husband the alleged adulterer has been made a co-
respondent and the adultery has been established, the court may order the co-respondent to pay the whole or any
part of the costs of the proceedings:

Provided that the respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a
prostitute, or
(ii) if the co-respondent had not, at the time of the adultery, reason to believe the respondent to be a married
person.

17. Applications for alimony and maintenance.—

(a) Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody,
maintenance and education expenses of minor children shall state the average monthly incomes, of the
petitioner and the respondent, the sources of these incomes particulars of other moveable and immovable
property owned by them, the number of dependents on the petitioner and the respondent, and the names
and ages of such dependents.
(b) Such application shall be supported by an affidavit of the applicant.

18. Taxation of costs.—Unless otherwise directed by the court, the cost of the petition under the Act shall be costs
as taxes in a suit.

19. Order as to costs.—The award of costs shall be within the discretion of the court.
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APPENDIX I

20. Transmission of certified copy of the decree.—The court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Registrar of Marriages in charge of the Hindu Marriage Register.

21. Appeals.—
(1) All decrees and orders made by the court in any proceeding under this Act may be appealed from under
any law for the time being in force.
(2) Appeals to the High Court shall be governed by the Rules of the High Court as far as they may be
applicable.
(3) In every such appeal notice shall be issued to the parties interested.

(2) THE SPECIAL MARRIAGE RULES1

In exercise of the powers conferred by section 41 of the Special Marriage Act, 1954 (43 of 1954) the High Court of
Assam has been pleased to make the following Rules under that Act. These Rules will form part of the Civil Rules
and Orders, Volume I and will take effect from the date of publication in the Gazette.

1. Short title.—These Rules may be called the Special Marriage Rules, 1956.

2. Definitions.—

(i) ‘Act’ means the Special Marriage Act, 1954 (43 of 1954).

(ii) ‘court’ means the District Court.

3. Petitions.—

(1) Every petition made under the Act shall be accompanied by a certified copy of the Certificate from the Marriage
Certificate Book about the solemnization of the Marriage under the Act.2

(2) Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Schedule I
of these rules and shall set forth the provision of the Act or of these rules under which it is made.

4. Contents of petitions.—In addition to the particulars required to be given under the Act and under Order VIII,
rule I, of the Civil Procedure Code, every petition for judicial separation, nullity of marriage and divorce shall contain
the following particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband before the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last resided
together;
(d) whether there is living any issue of the marriage and if so, the names and dates of birth, or ages of such
issues;
(e) if prior to the date of the petition there has been any proceeding under the Act between the parties to the
petition, the full particulars thereof;
(f) if the petition is for restitution of conjugal rights, the date on or before which the circumstances under which
the respondent withdrew from or terminated conjugal relationship with the petitioner;
(g) if the petition is for judicial separation or divorce the matrimonial offence alleged or other grounds upon
which the relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner, e.g.:
(1) in the case of alleged desertion the date and circumstances under which it began;
(2) in the case of presumption of death, the last place where the parties lived together and the date when
and the place where the respondent was last seen or heard of as alive and the steps, if any, taken to
ascertain his whereabouts;
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APPENDIX I

(3) in the case of cruelty or adultery the specific acts of cruelty or adultery and the occasions when and the
places where such acts were committed;
(4) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest
itself, the nature and period of any curative steps taken, together with the name and address of the
person who treated for such unsoundness of mind;
(5) in the case of leprosy, or venereal disease in a communicable form, when such ailment began to
manifest itself, the nature and the period of curative steps taken, together with the name and address
of the person who treated for such ailment that such ailment was not contracted from the petitioner;
(h) if the petition is for a decree of nullity of marriage on the ground specified in clause (ii) or clause (iii) of
section 25 of the Act, the time when the facts relied on were discovered and whether or not marital
intercourse with the consent of the petitioner took place after the discovery of the said facts;
(i) the claim for damages, if any, with particulars;
(j) the relief or reliefs prayed for.

5. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce or judicial
separation on the ground that his wife has, since the solemnisation of the marriage, been guilty of adultery, the
petitioner shall make the alleged adulterer co-respondent to the said petition, unless he is excused from so doing by
an order of the court which may be made on any or more of the following grounds, which shall be supported by an
affidavit in respect of relevant facts:—

(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the
adultery has been committed;

(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for
discovery;

(iii) that the alleged adulterer is dead;

(iv) for any other sufficient reason that the court may deem fit to consider.

6. Verification of petition.—Statements contained in every petition shall be verified by the petitioner or some other
competent person in a manner required by the Code of Civil Procedure for the time being in force for the verification
of plaints.

7. Forms of petitions.—The petitions made under the Act, shall, so far as possible, be made in the forms
prescribed in the Schedule to the Indian Divorce Act, 1869 (14 of 1869).

8. Petitions on behalf of lunatics.—When a husband or a wife is a lunatic or an idiot, any petition under the Act,
other than the petition for restitution of conjugal rights, may be brought, on his or her behalf by the person entitled to
his or her custody.

9. Petition by minors.—

(1) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the court; and no
petition presented by a minor under the Act shall be filed until the next friend has undertaken in writing to be
answerable for costs.

Such undertaking shall be filed in court, and the next friend shall thereupon be liable in the same manner and to the
same extent as if he were plaintiff in an ordinary suit.

(2) The next friend shall file an affidavit along with the petition which shall state the age of the minor, that the next
friend has no adverse interest to that of the minor and that the next friend is otherwise a fit and proper person to act
as such.

(3) The court may on considering the affidavit and such other material as it may require, record its approval to the
representation of the minor by the next friend or pass such other orders as it may deem fit.
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APPENDIX I

10. Notice.—The Court shall issue notice to the respondent and co-respondent, if any. The notice shall be
accompanied, unless otherwise directed by the court, by a copy of the petition. The notice shall also require, unless
the court otherwise directs the respondent or co-respondent to file his or her statement in court within a period of
four weeks from the service of the notice and to serve a copy thereof upon each of the other parties to the petition,
within the aforesaid period.

11. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
a manner provided for service of summons under Order V of the Civil Procedure Code:

Provided that the court may dispense with such service altogether in case it seems necessary or expedient so to
do.

12. Written statements by respondents.—The respondent may and, if so required by the court, shall present a
written statement in answer to the petition. The provisions of Order VIII of the Code of Civil Procedure shall apply
mutatis mutandis. In particular, if in any proceedings for divorce the respondent opposes the relief sought in the
petition on the ground of the petitioner’s adultery, cruelty or desertion, the written statement shall state the
particulars of such adultery, or desertion as required in the case of petition under clauses (d) and (g) of rule 4 and
the particulars of any relief which he claims on the said grounds.

13. Intervenors in wife’s petition.—

(1) Unless the court for good cause shown otherwise directs—
(a) where the husband is charged with adultery with a named female person a copy of pleading containing
such charge shall be served upon the person with whom adultery is alleged to have been committed,
accompanied by a notice that such person is entitled within the time therein specified to apply for leave to
intervene in the cause;
(b) where the written statement of the respondent alleges adultery by the petitioner with a named man or
woman as the case may be, a copy of such statement shall be served on such man or woman,
accompanied by a notice that such person is entitled within the time therein specified to apply for leave to
intervene in the cause.

2. Cost regarding intervention.— (a) Whenever the court finds that an intervenor has no sufficient cause for
intervening, it may order the intervenor to pay the whole or any part of the costs occasioned by the application to
intervene.

(b) Whenever the court finds that the charge or allegation against the intervenor made in any petition or written
statement is baseless or not proved and that the intervention is justified, it may order the person making such
charge or allegation against the intervenor to pay to the intervenor the whole or any part of the costs of the
intervention.

14. Answer.—A person to whom leave to intervene has been granted may file in the court an answer to the petition
or written statement containing the charges or allegations against such intervenor.

15. Intervention by third party.—During the progress of the petition under Chapter V or VI of the Act, any person
suspecting that any parties to the petition are or have been acting in collusion, or the petitioner has committed fraud
or he has concealed some material facts from the court for the purpose of obtaining the decree prayed for, shall
have the liberty to apply to court stating the circumstances and facts of such collusion, fraud and concealment, as
the case may be. The application shall be supported by an affidavit. When such application is filed, the court shall
give notice thereof to the parties concerned and after hearing them and taking necessary evidence pass the
necessary orders:
(i) if the court comes to the conclusion that such collusion, fraud or concealment of material facts is proved,
then the original petition shall be dismissed and the intervening third party shall be awarded his costs from
the parties, guilty of such collusion, fraud or concealment of facts.
(ii) Whenever such application is made and the court comes to the conclusion that the intervening third party
had no grounds or no sufficient grounds for intervening, it may order him to pay the whole or any part of the
costs occasioned by his intervention.
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APPENDIX I

16. Competence of husband and wife to give evidence as to cruelty or desertion or judicial separation.—On
any petition presented by a wife, praying for divorce or judicial separation by reason of her husband having been
guilty of adultery coupled with cruelty, or of adultery coupled with desertion without reasonable excuse, the husband
and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or
desertion.

17. Mode of taking evidence.—The witnesses in all proceedings before the court, where their attendance can be
had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and
may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that
the deponent in every such affidavit shall, on the petition of the opposite party, or by direction of the court, be
subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be
re-examined orally, as aforesaid by or on behalf of the party by whom such affidavit was filed.

18. Damages.—Any husband may, either in a petition for divorce or judicial separation, claim damages from any
person on the ground of his having committed adultery with the wife of such petitioner:
(i) Such petition shall be served on the alleged adulterer and the wife unless the court dispenses with such
service in accordance with the provisions of rule 11.
(ii) The damages to be recovered on any such petition shall be ascertained by the said court, although the
respondent or either of them may not appear. After the decision has been given, the court may direct in
what manner the damages shall be paid or applied.

19. Costs.—Whenever in any petition presented by a husband, the alleged adulterer has been made a co-
respondent and the adultery has been established, the court may order the co-respondent to pay the whole or any
part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was, at the time of the adultery living apart from her husband and leading the life of a
prostitute; or
(ii) if the co-respondent had not, at the time of adultery, reason to believe the respondent to be a married
woman.

20. Taxation of costs.—Unless otherwise directed by the court, the costs of the petition under the Act shall be
costs as taxed in suits under the Indian Divorce Act, 1869 (4 of 1869).

21. Order as to costs.—The award of costs shall be within the discretion of the court and the court shall make an
order about the same while passing the decree.

22. Power to adjourn.—The court may from time to time adjourn the hearing of any petition under the Act, and
may require further evidence thereon if it seems fit so to do.

23. Transmission of certified copy of the decree.—The court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Marriage Officer appointed under section 3 of the Act.

24. Appeals.—
(1) An appeal to the District Court from the decision of the Marriage Officer under section 8 or section 17 of the
Act shall be in the form of a memorandum which shall be accompanied by a certified copy of each of the
following documents:—
(a) the notice of the intended marriage;
(b) the objection recorded by the Marriage Officer; and
(c) the decision of the Marriage Officer on the objection.
(2) The District Court may call for other records of the enquiry from the Marriage Officer.
(3) The Memorandum of Appeal shall be accompanied also by the process fee prescribed under the Court
Fees Act for service of notice of the appeal on the objector.
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APPENDIX I

(4) It shall be open to District Court to take such additional evidence as it considers necessary in the interest of
justice.

25.(1) Appeals to the High Court from the decrees and orders of the District Court shall be governed by the rules of
the High Court as far as they may be applicable.

(2) In every such appeal notice shall be issued to the co-respondent and the intervenor, if any.

SCHEDULE I

[Rule 3(2)]

In the Court of the District Judge ..............................

Original Petition No ................................... of 20 ......

In the matter of the Special Marriage Act, 1954

.................................................................................................................................................... Petitioner

............................................................................................................................................... Respondent

versus

........................................................................................................................................... Co-respondent

Petition under section ............................. of the Special Marriage Act, 1954, and rule...........................of the Special
Marriage Rules.

9. GUJARAT HIGH COURT

RULES FOR CONFIRMATION OF A DECREE UNDER THE INDIAN DIVORCE ACT, 1869 (IV OF 1869)
(1) GUJARAT HIGH COURT RULES, 1975

CHAPTER XVIII

198. Hearing of cases under sections 17 and 20 of the Act.—Cases for confirmation of a decree received from a
District Judge under sections 17 and 20 of the Indian Divorce Act, 1869 (4 of 1869), shall not be heard by the High
Court till after the expiry of six months from the pronouncing of such decree.

199. Paper Books.—Four typed copies of all the material papers in references under the Act shall be prepared in
the District Court at the cost of the petitioner for inclusion in the paper books for the use of the court.

200. Confirmation of decrees.—After the period of six months mentioned above has expired, the decree may be
confirmed, even though no application for that purpose has been made to the court, or no party appears at the
hearing.

201. Person wishing to show cause against District Judges’ decree may appear before High Court.—Any
person wishing to show cause against the confirmation of the District Judge’s decree on the ground that the decree
has been obtained by collusion or by reason of material fact not being brought before the court, or because of any
change of circumstances since the passing of the decree such as that the parties have resumed the relations of
husband and wife, or that the petitioner has died, shall, if the court so permits, enter an appearance in the
proceedings before the High Court and file affidavits setting forth the facts upon which he relies, certified copies of
the affidavit shall be served upon the party or the Advocate of the party in whose favour the decree has been
pronounced.

202. Affidavits by parties.—The party in the suit in whose favour the decree has been pronounced may, within a
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APPENDIX I

time to be fixed by the court, file affidavits in answer, and the person showing cause against the decree being
confirmed may, within a further time to be so fixed, file affidavits in reply.

RULES FRAMED UNDER INDIAN DIVORCE ACT (IV OF 1869)

(2) THE GUJARAT HIGH COURT RULES, 19931

In supersession of the Bombay High Court Appellate Side Rules, 1960 as made applicable to this High Court and
as amended from time-to-time, the honourable Chief Justice and Judges of the High Court of Gujarat are pleased to
make the following Rules:—
(1) title.—These rules shall be cited as “The Gujarat High Court Rules, 1993”.
(2) These rules shall come into force with effect from the date of publication in the Gazette.

PART I

CHAPTER I

JURISDICTION OF SINGLE JUDGES AND BENCHES OF THE HIGH COURT

1. Jurisdiction ordinarily exercised by Division Court of two Judges.—The Civil and Criminal Jurisdiction of the
Court shall, except in cases there it is otherwise provided for by any law in force or by these rules, be exercised by
a Division Court consisting of two or more Judges.

2. Matters to be disposed of by a single Judge.—Save as otherwise expressly provided by any law in force or by
these rules, a Single Judge may dispose of the following matters:—

I.CIVIL

(1) Appeals from Original Decrees in Suits where the value of the subject-matter of the suit does not exceed
Rs. 1,00,000 for is incapable of valuation.
(2) Appeals under Special or local Acts where the value of the subject-matter before the trial Court or Tribunal
or other authority does not exceed Rs. 1,00,000 or is incapable of valuation.
(3) Appeals in proceedings under the Guardians and Wards Act, 1890, and thehindu Minority and
Guardianship Act, 1956.
(4) Appeals under section 144, Civil Procedure Code, 1908.
(5) Appeals under the Hindu Marriage Act and other Matrimonial enactments.
(6) Appeals from Appellate Decrees.
(7) Appeals from orders under section 104 and Order XLIII, rule 1 of the Civil Procedure Code, 1908.
(8) Appeals relating exclusively to costs or instalments.
(9) Appeals arising out of the land Acquisition References, the value of the subject-matter of which does not
exceed Rs. 1,00,000 except where the valuation in an allied matter to be heard with the former exceeds
Rs. 1,00,000.
(10) Applications under articles 226 of the Constitution of India except—
(1) those where vires of any provision of a statute are challenged.
(2) those for issue of writs of Habeas Corpus and also those for issue of appropriate directions, orders or
writs in respect of orders of deportation.
(3) those where awards under the Industrial Disputes Act [India Act (XlV) of 1947] concerning revision of
wages or wage structure of a class or classes of an employee in an industry, are challenged.
(4) those arising under the Acts specified below:—
(a) The Customs Act (India Act lII of 1962).
(b) The Central Excises & Salt Act (Act 1 of 1944).
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APPENDIX I

(c) Taxing statutes such as the Income Tax Act (India Act No. XLIII of 1961). The Wealth Tax Act,
1957 (India Act No. 27 of 1957), the Gift Tax Act, 1958 (India Act No. 18 of 1958), the Gujarat
Sales Tax Act, 1969 (Act No. 1 of 1970) etc.
(d) The land Acquisition Act (Act 1 of 1894).
(e) The Import and Export Control Act (Act XVIII of 1947).

1[(11) Matters Pertaining to Preventive Detention laws].

(12) Application under Article 227 of the Constitution of India except those arising from the decisions under the
Industrial Disputes Act (India Act Xlv of 1947). Concerning revision of wages or wage structure of a class
or classes of the employees in an Industry. The Customs Act (Indian Act LII of 1962). The Central Excise
and Salt Act (Act 1 of 1944) and Taxing Statutes.
(13) Applications for the exercise of the Court’s revisional jurisdiction under section 115 of the Civil Procedure
Code, 1908, or under section 25 of the provincial small Causes Courts Act, 1887 or under any special or
local law.
(14) Applications under the Companies Act, 1956 and proceedings thereunder.
(15) Applications under any Local or special Acts not otherwise specifically provided for.
(16) Applications under the Guardians and Wards Act, 1990, the Hindu Minority and Guardianship Act, 1956,
and other enactments relating to minors or under clause 17 of the letters Patent.
(17) All applications (except applications under Article 228 of the Constitution of India) for transfer of suits,
appeals or other proceedings pending for trial or disposal in any Civil Court subordinate to the High Court
or over which the High Court has power of superintendence, to the High Court or to another Court
subordinate to or under the superintendence of the High Court.
(18) Applications for consent decrees or orders under Order XXIII, Civil Procedure Code, 1908 in the matters
which can be disposed of by Single Judge.
(19) All applications or matters incidental to or interlocutory or arising out of or relating to appeals or
applications which are pending or proposed to be filled in the High Court, and which can be disposed of by
a Single Judge.
(20) All applications or proceedings incidental to or arising out of or relating to application for leave to appeal to
the Supreme Court or Appeals to the Supreme Court after the grant of leave to appeal by the High Court or
of special leave by the Supreme Court except cancellation of certificate of fitness granted by the High
Court.
(21) All matters referred to in rules 12 and 13 of Chapter 11 and the matters referred by the Registrar.
(22) Except as otherwise provided in any law in force all references under the Civil Procedure Code except
References under proviso to section 113 and Order XXVIIA of the Civil Procedure Code.
(23) Revision of Orders passed by the Registrar, Joint Registrar, Addl. Registrar, Deputy Registrar or Assistant
Registrar.
(24) All Civil proceedings transferred or withdrawn to this High Court from subordinate Courts except
proceedings withdrawn under Article 228 of the Constitution, which can be tried by a Single Judge.
(25) All matters pending registration wherein office objections are not removed within the prescribed time.

CHAPTER XVIII

CASES FOR CONFIRMATION OF A DECREE UNDER THE INDIAN DIVORCE ACT, IV OF 1869

195. Hearing of cases under sections 17 and 20 of the Act.—Cases for confirmation of a decree received from a
District Judge under sections 17 and 20 of the Indian Divorce Act, IV of 1869, shall not be heard by the High Court
till after the expiry of six months from the pronouncing of such decree.

196. Paper Books.—Four typed copies of all the material papers in reference under the Act shall be prepared in
the District Court at the cost of the petitioner for inclusion in the paper books for the use of the Court.
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APPENDIX I

197. Confirmation of decrees.—After the period of six months mentioned above has expired, the decree may be
confirmed, even though no application for that purpose has been made to the Court or no party appears at the
hearing.

198. Person wishing to show cause against District Judges decree may appear before High Court.—Any
person wishing to show cause against the confirmation of the District Judge’s decree on the ground that the decree
has been obtained by collusion or by reason of material fact not being brought before the court, or because of any
change of circumstances since the passing of the decree such as, that the parties have resumed the relations of
husband and wife, or that the petitioner has died, shall, if the court so permits, enter an appearance in the
proceedings before the High Court and file affidavits setting forth the facts upon which he relies, certified copies of
the affidavit shall be served upon the party or the Advocate of the party in whose favour the decree has been
pronounced.

199. Affidavits by parties.—The party in the suit in whose favour the decree has been pronounced may, within a
time to be fixed by the Court, file affidavits in answer, and the person showing cause against the decree being
confirmed may, within a further time to be so fixed file affidavits in reply.

10. KARNATAKA HIGH COURT

THE HINDU MARRIAGE RULES, 19561

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955), the High
Court of Karnataka at Bangalore is pleased to make the following Rules to regulate the proceedings under the said
Act.

‘The Act’ referred to in these Rules shall mean the Hindu Marriage Act, 1955.

1. Form of proceedings.—The following proceedings under the Act shall be instituted by original petitions which
shall be numbered serially as Miscellaneous Petition as (H.M.) Misc. No......... ......... of 20 .......
(i) under section 9, for restitution of conjugal rights;
(ii) under sub-section (1) of section 10, for judicial separation;
(iii) under sub-section (2) of section 10, for rescinding a decree for judicial separation;
(iv) under section 11, for declaring a marriage null and void;
(v) under section 12, for annulment of a marriage by a decree of nullity;
(vi) under section 13, for divorce;
(vii) under section 14, for leave to present a petition for divorce before the expiration of three years2 from
the date of marriage.

2. Interlocutory application.—Every other proceeding in the same matter subsequent to the petition shall be
initiated by an interlocutory application.

3. Cause title.—Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title
in Form No. I and shall set forth the provision of the Act or of the rules under which it is made.

4. Contents of petition.—
(1) In addition to the particulars specified in section 20, every petition shall state—
(2) the names of parties and their occupation and the place and address where the parties reside or last
resided together within the jurisdiction of that court;
(ii) the names of children, if any, of the marriage together with their dates of birth or ages;
(iii) if prior to the date of petition there has been any proceeding under the Act between the parties to the
proceedings, full particulars thereof;
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APPENDIX I

(iv) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which the respondent withdrew from or terminated conjugal relationship with the petitioner;
(v) if the petition is for judicial separation or divorce the matrimonial offence alleged on other grounds upon
which the relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner; viz.,
(a) in a case of alleged desertion, the date and the circumstances under which it began;
(b) in a case of alleged cruelty, the circumstances under which it was committed and the reasons for the
apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with
the other party;
(c) in a case of alleged virulent form of leprosy or venereal disease the date and the period from which it
began together with the nature and the period from curative steps taken;
(d) in a case of alleged unsoundness of mind, the date and the period from which it began together with
the nature and period of curative steps taken and a statement whether such unsoundness of mind has
been found and declared in any proceedings in a court of law.
(2) Every petition shall set out at the end of the relief or the reliefs sought for.

5. Copies for service with process.—The petitioner shall along with every petition furnish a copy for service on
the respondent together with the fee prescribed for issue of notices under the Court Fees Act in force.

6. Leave to present a petition before expiration of three years1.—Every petition under section 14 of the Act for
leave to present a petition for divorce before the expiration of three years1 from the date of marriages shall be
supported by an affidavit setting forth the circumstances relied on as constituting exceptional hardship to the
petitioner, or of exceptional depravity on the part of the respondent.

7. Notice of petition.—

(1) Notice of the petition shall be in Form No. II and shall require the respondent to enter appearance in person or
by pleader and file a written statement not less than seven days before the date fixed for hearing in the notice.

(2) The notice together with a copy shall be served on the respondent in the manner prescribed for the service of
summons in suits under Order V of the Code of Civil Procedure, 1908.

8. Decree under sections 9, 11, 12 and 13.—Every decree under sections 9, 11, 12 and 13 shall be drawn up in
Form No. III and shall be signed by the District Judge under his hand and seal.

9. Custody of children.—The petitioner or the respondent spouse or the guardian of any children of the marriage
may at any time either before or after the decree apply to the court for order relating to the custody or education of
the children of the marriage and the court may pass such orders as may be deemed fit and appropriate subject to
the provisions of section 26 of the Act.

10. Costs and pleader’s fee.—The order as to costs of the proceedings shall be in the discretion of the court and
be taxed in the decree. The court shall have discretion to fix the pleaders fee in the proceedings subject to a
minimum of Rs. 10 and a maximum of Rs. 50.

11. Security for costs.—

(1) The wife who is petitioner or who has entered an appearance to a petition may apply to the court for
security for her costs of the proceedings.
(2) At the hearing of an application for a commission to examine a witness within or outside the jurisdiction of
the court, or at any time after such an examination is granted, a wife who is a petitioner or who has entered
an appearance to a petition may apply for security for her costs of and incidental to such examination.
(3) When an application for security has been made under this Rule, the court shall ascertain what is a
sufficient sum of money to cover the cost of the wife, and if, after taking all the circumstances into account,
including the means of the husband and the wife, it considers that the husband should provide security for
all or some of the wife’s costs, it may order the husband to pay the sum so ascertained, or some portion of
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APPENDIX I

it, into court or to give security therefor within such time as it may fix and may direct a stay of the
proceedings until the order is complied with.

12. The Rule of the High Court in respect of appeals from orders and decrees shall apply to all appeals preferred
under the Act. Such appeals shall be numbered serially as (H.M.) Misc. Appeal..............................of 20............

FORM NO. I

(Rule 3)

In the Court of ............................ at ............................

H.M. Misc. Petition No.......................of 20....

In the matter of the Hindu Marriage Act, 1955.

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ...........................................................................................................................................Respondent

Petition under section..................of the Hindu Marriage Act, 1955 and Rule..................of the Rules under Hindu
Marriage Act.

FORM NO. II

(Rule 7)

In the Court of .............................. at ..............................

H.M. Misc. Petition No ............................... of 20 .......

In the matter of the Hindu Marriage Act, 1955.

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ...........................................................................................................................................Respondent

To

Take notice that the petitioner has applied to the court for an order (here set out briefly the provision of law and the
allegations on which the application is based) a copy of which is delivered with this notice.

You are hereby warned to appear in this Court in person or by a pleader duly instructed on the......................day of
........................ 20 ............ .at........................ o’clock in the forenoon to show cause against the application failing
wherein, the said application will be heard and determined ex parte.

Given under my hand and the seal of the Court this day of20

Judge

FORM NO. III

(Rule 8)

(Cause title same as in Form I)

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APPENDIX I

This petition coming on for final hearing before Shri.............. District Judge, in the presence of
Shri.....................Advocate/Pleader for the petitioner, and Shri........... ............Advocate/pleader for the respondent,
the Court being satisfied that (here set out all or any of the grounds specified in section 23 of the Act, as the
particular case may require, which the Court considers exist for granting relief), it is ordered and decreed as follows:

Given under my hand and the seal of the Court this day ..................... of ..................... 20

Seal District Judge

11. KERALA HIGH COURT

HINDU MARRIAGE (KERALA) RULES, 19631

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955)
and Article 227 of the Constitution of India and all other powers hereunto enabling the High Court of Kerala hereby
makes the following rules with the previous approval of the Governor to regulate proceedings under the said Act.—

1. Short title.—These rules may be called the Hindu Marriage (Kerala) Rules, 1963.

2. Commencement.—These rules shall come into force on the date of their publication in the Gazette.

3. Definitions.—In these rules unless there is anything repugnant in the subject or context,—
(a) “Act” means the Hindu Marriage Act, 1955 (Central Act 25 of 1955).
(b) “Code” means the Code of Civil Procedure, 1908.
(c) “Court” means the court mentioned in section 3(b) of the Act.
(d) “Form” means a form appended to these rules.
(e) All other words and expressions used herein but not defined shall have the meaning respectively assigned
to them in the Act.

4. Certified extract, etc. to accompany petitions.—

(i) Every petition under the Act shall be accompanied by a certified extract from the Hindu Marriage Register
maintained under section 8 of the Act and, in the absence of the same, by an affidavit to the effect that the
petitioner was married to the respondent.
(ii) Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 13 of the Act* shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights as the case may be.

5. Form of proceedings.—The following proceedings under the Act shall be initiated by original petition:—
(i) under section 9 for restitution of conjugal rights;
(ii) under sub-section (1) of section 10 for judicial separation;
(iii) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) under section 11 for declaring a marriage null and void;
(v) under section 12 for annulment of a marriage by a decree of nullity; and
(vi) under section 13 for divorce.

6. Cause Title.—Every petition, application, decree or order under the Act shall be headed by a Cause Title in
Form No. 1 and shall set forth the provision of the Act under which it is made.
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APPENDIX I

7. Contents of petition.—
(1) In addition to the particulars required to be given under Order VII, rule 1 of the Code and section 20(1) of
the Act, every petition for judicial separation, nullity of marriage, or divorce shall contain the following
particulars:—
(a) the place and the date of the marriage, the names of the parties and their occupation, the place and
address where the parties reside or last resided together within the jurisdiction of the court;
(b) the name, status and domicile of the wife and husband before and after the marriage;
(c) whether there is living any issue of the marriage and if so, the name and date of birth or age of such
issue, or all such issues;
(d) whether there have been any previous proceedings in any court in India with reference to the marriage,
by or on behalf of either of the parties and if so what proceedings and the result of such proceedings;
(e) the matrimonial offence or offences if any charged, set out in separate paragraphs, with the time and
place of the alleged commission;
(f) the property mentioned in section 27 of the Act, if any; and
(g) the relief or reliefs prayed for.
(2) If the petition is for restitution of conjugal rights, the date from which and the circumstances under which
the respondent withdrew from the society of the petitioner shall be stated in the petition.
(3) In cases where desertion and/or cruelty are alleged, the petitioner shall state the date and the
circumstances under which the alleged desertion began and/or the specific acts of cruelty.
(4) In every petition presented by a husband for divorce on the ground that his wife is living in adultery with
any person or persons or for judicial separation on the ground that his wife has, after the solemnization of
the marriage, had sexual intercourse with any person or persons other than him*, the petitioner shall state
the name, occupation and place of residence of such person or persons so far as they can be ascertained.
(5) In every petition presented by a wife for divorce on the ground that her husband is living in adultery with
any woman or women or for judicial separation on the ground that her husband has after the solemnization
of the marriage, had sexual intercourse with any person or persons other than her1, the petitioner shall
state the name, occupation and place of residence of such woman or women so far as they can be
ascertained.

8. Full particulars to be given.— (1) In case where respondent is alleged to be suffering from a virulent form of
leprosy or venereal disease in a communicable form, or unsoundness of mind, full particulars as to when such
ailment began to manifest itself and the nature and period of any curative steps taken, shall be given.

(2) In any petition for divorce on the ground of adultery, the petitioner shall be required to give particulars, as clearly
as he can, of the acts of adultery alleged to have been committed by the respondent.

9. Affidavit on non-cohabitation.—A petition for divorce after the passing of a decree for judicial separation shall
be accompanied by an affidavit made by the petitioner to the effect that he or she has not resumed cohabitation for
a period of two years** or upwards after the passing of the decree for judicial separation.

10. Presentation of petition.—Every petition or application under the Act shall be presented to the court in person
or through an advocate or a pleader or a recognised agent.

11. Necessary parties.—

(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or
has, after the solemnisation of the marriage, had sexual intercourse with any person2, the petitioner shall
make such person a co-respondent.
(b) In every petition under section 13(2)(i) of the Act the petitioner shall make “the other wife” mentioned in that
section a co-respondent.
 Page 142 of 245
APPENDIX I

(c) In every petition under section 11 of the Act on the ground, that the condition in section 5(i) is contravened
the petitioner shall make the spouse of the respondent alleged to be living at the time of the marriage a co-
respondent.
(d) The petitioner may, however, apply to the court by an application supported by an affidavit for leave to
dispense with the joinder of the co-respondent in cases covered by sub-rule (a) above on any of the
following grounds:—
(i) that the name of such person is unknown to the petition although he has made due efforts for
discovery,
(ii) that such person is dead,
(iii) that the respondent being the wife is leading the life of a prostitute and the petitioner knows of no
person with whom she has committed adultery or has had sexual intercourse,
(iv) for any other reason that the Court may deem fit and sufficient to consider.

12. Verification of petitions.—Statement contained in every petition or written statement shall be verified in the
manner required by the Code.

13. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within three years* of such marriage, he
or she shall obtain leave of the court under section 14 of the Act on ex parte application made to the court in which
the petition for divorce is intended to be filed.

(2) The application shall be accompanied by the petition intended to be filed bearing the proper court fee under the
law, and in accordance with the rules. The application shall be supported by an affidavit made by the petitioner
setting out the particulars of exceptional hardship to the petitioner, or exceptional depravity on the part of the
respondent on which leave is sought.

(3) Evidence in such application may, unless otherwise directed by the court, be given by affidavit.

(4) When the court grants leave the petition shall be deemed to have been duly filed on the date of the said order.
The petitioner shall within a week of the date of the said order, file sufficient number of copies of the petition for
divorce, for service upon the respondents in the petition.

14. Notice.—The court shall issue notice to the respondent and co-respondent if any. The notice which shall be in
Form No. II, shall be accompanied by a copy of the petition and affidavit in support thereof. The notice shall, unless
the court otherwise directs, require the respondent and the co-respondent to file their written statements within a
period of four weeks from the date of service of notice and to serve a copy of the same upon each of the other
parties to the petition within the aforesaid period.

15. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
the manner provided for service of summons under Order V of the Code.

16. Contents of written statement.—The provisions of Order VIII of the Code shall apply mutatis mutandis to the
written statement, if any, presented by the respondent or the co-respondent in answer to the petition.

17. Application for alimony and maintenance.—Every application for maintenance pendente lite permanent
alimony and maintenance and education expenses of minor children shall state the average monthly income of the
petitioner and the respondent, the source of their income, particulars of all movable and immovable property owned
by them, the number of dependents on them and their names and age.

18. Form of decree.—Every decree under the Act other than a decree of the High Court shall be drawn up in Form
No. III and shall be signed by the Judge under his hand and seal.

19. Transmission of certified copy of the decree.—The court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Registrar of Marriages maintaining the Hindu Marriage Register.

20. Costs.—
 Page 143 of 245
APPENDIX I

(a) Unless otherwise directed by the court the costs of a petition under the Act shall be taxed as in a suit.
(b) Whenever in any petition presented by a husband, the alleged adulterer has been made a co-respondent
and the adultery has been established, the court may order the co-respondent to pay the whole or any part
of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a
prostitute; or
(ii) if the co-respondent had not, at the time of the adultery reason to believe that the respondent was a
married person.

FORM NO. I

(Rule 6)

In the Court of ........................................

Original Petition ..................... of 20 ...…

In the matter of the Hindu Marriage Act, 1955.

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ........................................................................................................................................... Respondent

Petition under section …..... of the Hindu Marriage Act, 1955 and rule ................ of the rules framed under the Act.

FORM NO. II

(Rule 14)

In the Court of ...........................................

Original Petition No ......................of 20 .......

In the matter of the Hindu Marriage Act, 1955

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ........................................................................................................................................... Respondent

Petition presented on

Petition filed on

Notice issued on

Whereas on the..............................day of.................20.......... the above-named petitioner filed a petition against the
respondent for..........................(specify the relief)..............................you are hereby required to appear in this Court
on the..............................day of ............... 20...... at 11 a.m. in person or by pleader duly instructed and able to
answer all material questions relating to the above proceeding.

Also take notice that in default of your appearance on the aforesaid day the issues will be settled and the petition
 Page 144 of 245
APPENDIX I

heard and determined in your absence. You shall also bring with you or send by your Pleader any document which
the petitioner desires to inspect and any documents on which you intend to rely in support of your defence. You are
required to file your written statement within a period of four weeks from the date of service of notice and to serve a
copy of the same upon each of the other parties to the petition within the aforesaid period.

Given under my hand and the seal of this Court, this ......................... day of ...............20 ......

Judge

FORM NO. III

(Rule 18)

Cause Title same as in Form No. I

This petition coming on for final hearing before Shri............................... Judge, in the presence of
Shri........................... Advocate/Pleader for the petitioner, and Shri..............................Advocate/Pleader for the
respondent, the Court being satisfied that (here set out all or any of the grounds specified in section 23 of the Act,
as the particular case may require, which the Court considers exist for granting relief), it is ordered and decreed as
follows:

Given under my hand and the seal of this Court, this ..................... day of .....................20 .......

Judge

12. MADHYA PRADESH HIGH COURT

(1) RULES UNDER THE HINDU MARRIAGE ACT, 19551

Rules made by M.P. High Court under the Hindu Marriage Act, 1955 (25 of 1955)

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25of 1955), the Court
has made the following rules to regulate proceedings under the said Act:—

1. Every petition under the Hindu Marriage Act (25 of 1955), hereafter called the ‘Act’, shall be accompanied by a
certified copy of extract from the Hindu Marriage Register maintained under section 8 of the Act or from the
Register of Marriage maintained under any other Act where the marriage has been registered under some other Act
and where a certified copy of extract can be granted to petitioner.

2. Contents of petitions.—Every petition shall state—

(1) the name of the court in which the petition is presented;
(2) the names of the parties, their ages, description and places of residence;
(3) the place and date of marriage;
(4) the principal address at which the parties to the marriage reside or last resided, together within the
jurisdiction of the court;
(5) whether there is any living issue of the marriage, and if so, the names and dates of birth or ages of such
issues;
(6) whether there have been in any court in India previous proceedings with reference to the marriage by or on
behalf of either of the parties, and if so, the particulars and the result of such proceedings;
(7) details of the facts specified in section 20(1) of the Act so far as they are known to the petitioner. In
particular, the details shall include—
(a) if the petition is for restitution of conjugal rights, the date when and the circumstances in which the
respondent withdrew from the society of the petitioner;
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APPENDIX I

(b) if the petition is for judicial separation—

(c) the date and place of the desertion, cruelty, or sexual intercourse which is made the ground for relief
and in case of sexual intercourse, the name and address of the person or persons with whom the
respondent had sexual intercourse; (ii) the period of leprosy, venereal disease or unsoundness of mind
which is made the ground for relief;
(d) if the petition is for decree of nullity on the ground of contravention of clause (i) of section 5 of the Act,
the name and address of the spouse;
(e) if the petition is for a decree of nullity on the grounds specified in clause (c) of section 12 of the Act,
date and particulars of the force or fraud, as the case may be, by which the consent was obtained and
the date on which the force ceased to operate or the fraud was discovered;
(f) if the petition is for divorce on the ground of—
(i) conversion, unsoundness of mind, leprosy, venereal disease, renunciation of

the world or another marriage, the date and place of the act or disease;
(ii) adultery, rape or sodomy, the date and the place of the act or acts and the

name and address of the person or persons with whom these acts were committed by the
respondent;
(iii) presumption of death, the last place of cohabitation of the parties, the circumstances in which the
parties ceased to cohabit, the date when and the place where the respondent was last seen or
heard of and the steps which have been taken to trace the respondent;
(8) the property mentioned in section 27 of the Act, if any relief is claimed in respect thereof;
(9) relief or reliefs.

3. Application for leave under section 14 of the Act.—Where any party to a marriage desires to present a
petition for divorce within three years of such marriage, he or she shall apply by an application for leave of the
court—
(1) The application shall be accompanied by the petition intended to be filed.
(2) The application shall be supported by an affidavit made by the applicant and shall state the following
particulars:—
(a) the grounds on which the application is made;
(b) particulars of the hardship or depravity alleged;
(c) whether there has been any previous application for this purpose, if so, its details;
(d) whether there are living any children of the marriage, and if so, their names and dates of birth or ages,
and where and with whom they are residing;
(e) whether any, and if so, what attempts at reconciliation have been made;
(f) any other circumstances which may assist the court to determine the question whether there is
reasonable probability of a reconciliation between the parties.
(3) Notice of the application along with the copy of the application and of the petition shall be served on the
respondent.
(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order.

4. Application for alimony and maintenance.—Every application for alimony and maintenance shall be supported
by an affidavit made by the applicant and shall state the average monthly incomes of the petitioner and the
respondent, the sources of these incomes, particulars of other moveable and immovable property owned by them,
the number of dependents of the petitioner and the respondent, and the names and ages of such dependents.

5. Notice.—The court shall issue notice to the respondent and co-respondent, if any. The notice shall be
 Page 146 of 245
APPENDIX I

accompanied by a copy of the petition. The notice shall require, unless the court otherwise directs, the respondent
or co-respondent to file his or her statement in court within a period specified by the court along with a copy for the
use of the petitioner.

6. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
the manner provided for service of summons under Order V of the Code of Civil Procedure.

7. Taxation of costs.—Unless otherwise directed by the court, the costs of the petition under the Act shall be costs
as taxed in a suit.

8. Transmission of certified copy of the decree.—The court shall send a certified copy of every decree of nullity
or divorce to the Registrar in charge of the Hindu Marriage Register maintained under the Act or to the officer in
charge of the Marriage Register maintained under any other Act containing an entry about the marriage annulled or
dissolved by the decree.

9. Appeals.—Appeals to the High Court from the decree and orders of the District Courts shall be governed by the
Rules of the High Court as far as may be applicable.
(2) RULES UNDER THE SPECIAL MARRIAGE ACT, 19541

M.P. HIGH COURT RULES AND ORDERS Section Two

CHAPTER XVI

In exercise of the powers conferred by section 41 of the Special Marriage Act, 1954 (43 of 1954) and all other
powers hereunder to enabling the High Court of Judicature has made the following rules which are published for
general information.

1. Short title and commencement.—

(a) These rules may be called the Special Marriage Rules, 1956.
(b) They shall come into force from the date of their publication in the Madhya Pradesh Gazette.

2. Definition.—In these rules unless there is anything repugnant in the subject or context—

“Act” means the Special Marriage Act, 1954 (43 of 1954).

3. Application of other Act and Rules.—The provisions of the Indian Divorce Act, 1869, as regards forms and
procedure, insofar as such forms and procedure may be applicable mutatis mutandis and the rules made
thereunder with necessary changes and adaptations and the general rules of court relating to registration, contents
and presentation or filing of plaints and written statements, insofar as they are not inconsistent with the Act or with
these rules shall apply to all proceedings under the Act.

4. Registration of petitions.—All original petitions under Chapter V, VI or VII of the Act shall be registered as suits
of Class III in the register of Civil Suits.

5. Contents of petitions.—A petition under Chapter V or Chapter VI of the Act shall, in addition to any particulars
required by law, state—
(i) the place and date of marriage;
(ii) the name, status and domicile of the wife before the marriage;
(iii) the status of the husband and his domicile at the time of the marriage and at the time, the petition is
presented, and his occupation and the place or places of residence of the parties at the time of the
institution of the suit;
(iv) the principal permanent address where the parties have cohabited including the address where they
last resided together;
(v) where there is living issue of the marriage, and if so, the names and date of birth or ages of such
issues;
 Page 147 of 245
APPENDIX I

(vi) whether there have been any, and if so, what previous proceedings with reference to the marriage by
or on behalf of either of the parties to the marriage, the place of such proceedings and result of such
proceedings;
(vii) the grounds on which the petitioner claims that the court to which the petition is presented has
jurisdiction to entertain the petition.

6. A petition for restitution of conjugal rights, shall, in addition to the particulars mentioned in rule 5, state—
(i) the date from which the respondent has withdrawn from the society of the petitioner;
(ii) the age of the respondent;
(iii) the person or persons with whom the respondent is residing at the time of the institution of the suit;
(iv) the attempts, if any, made before suit by the petitioner for resumption of normal relations.

7. A petition for judicial separation or divorce shall, in addition to the particulars mentioned in rule 5, state—
(i) the specified grounds on which judicial separation or divorce is claimed;
(ii) the claim for damages, if any;
(iii) the absence of collusion between the petitioner and the other party to the marriage.

8. A petition for divorce by mutual consent shall, in addition to the particulars mentioned in rule 5, state—

(i) the place or places and period or periods during which the parties have lived together;

(ii) the period during which the parties have been living separately;

(iii) the reasons for not being able to live together.

9. A petition for declaration of nullity of a marriage shall, in addition to the particulars mentioned in rules 5 and 7, as
far as applicable, state the facts which make the marriage null and void.

10. A petition for the annulment of a marriage shall, in addition to the particulars mentioned in rules 5 and 7 as far
as applicable, state the ground or grounds on which annulment of the marriage is sought.

11. Impleading of co-respondent.—A petition for judicial separation or divorce on the grounds of adultery shall
implead the alleged adulterer as a co-respondent, unless any of the following reasons is given for not so
impleading:—
(a) that the respondent is leading the life of a prostitute and that the petitioner knows of no person with whom
the adultery has been committed;
(b) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to
discover it;
(c) that the alleged adulterer is dead.

12. Intervener.—
(a) Any person, not already a party to the proceedings may, by an application supported by an affidavit, seek
the permission of the court to intervene and show cause why a decree for divorce, declaration of nullity of
marriage or annulment of marriage should not be passed.
(b) If the court allows such an application, the intervener shall be made a party to the proceedings and shall, if
the intervention is not bona fide, be liable for costs.

13. Damages.—The court may award to the petitioner such damages against a co-respondent who has been found
guilty of adultery, as the court deems proper.

14. Limitation.—The provisions of section 5 of the Indian limitation Act, 1908, shall apply to applications and
appeals under the Act.
(3) RULES UNDER THE INDIAN DIVORCE ACT, 1869
 Page 148 of 245
APPENDIX I

M.P. HIGH COURT RULES AND ORDERS Section two

CHAPTER VI

PART 1

RULES MADE UNDER SECTION 17A

1. These rules may be called the Indian Divorce (Domiciled Parties) Intervention Proceedings Rules, 1928.

2. In these rules, unless there is anything repugnant in the subject or context—

‘Act’ means the Indian Divorce Act, 1869 (4 of 1869);

‘Officer’ means an Officer appointed under section 17A of the Act to exercise the like right of showing cause that a
decree for the dissolution of marriage should not be made absolute or should not be confirmed, as the case may
be, as is exercisable in England by the King’s Proctor;

‘Pleader’ means any person entitled to appear and plead for another in court, and includes an advocate, a vakil,
and an attorney of a High Court; and

‘Proceeding’ means a suit or proceeding under the Act.

3.
(i) If any person during the progress of a proceeding or before the decree nisi is made absolute gives
information to the officer on any matter material to the due decision of the case, the officer may take such
steps as he considers necessary or expedient;
(ii) If, in consequence of any such information or otherwise the officer suspects that any parties to the petition
are or have been in collusion for the purpose of obtaining decree contrary to the justice of the case he may
after obtaining the leave of the court, intervene and produce evidence to prove the alleged collusion.

4.
(i) When the officer desires to show cause against making absolute a decree nisi, he shall enter an
appearance in the proceeding in which such decree nisi has been pronounced and shall, within a time to
be fixed by the court, file his plea setting forth the grounds upon which he desires to show cause as
aforesaid and a certified copy of his plea shall be served upon the petitioner or person in whose favour
such decree has been pronounced or his pleader. On entering an appearance the officer shall be made a
party to the proceeding and shall be entitled to appear in person or by pleader;
(ii) Where such plea alleges the petitioner’s adultery with any named person, a certified copy of the plea shall
be served upon each such person omitting such part thereof as contains an allegation in which the person
to be served is not named;
(iii) All subsequent pleading and proceeding in respect of such plea shall be filed and carried on in the same
manner in respect of an original petition under the Act, except as hereinafter provided;
(iv) If the charges contained in the plea of the officer are not denied or if no answer to the plea of the officer is
filed within the time allowed or if an answer is filed and withdrawn or not proceeded with, the officer may
apply forthwith for rescission of the decree nisi and dismissal of the petition.

5. Where the officer intervenes and shows cause against a decree nisi in any proceedings for divorce, the court
may make such orders as to the payment by other parties to the proceeding of the costs incurred by him in so doing
or as to the payment by him of any costs incurred by any of the said parties by reason of his so doing, as may seem
just.

PART 2

RULES UNDER SECTION 62

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APPENDIX I

1. All petitions under sections 10, 18, 27, 32 or 34 and all applications under section 23 of the Indian Divorce Act,
1869 (4 of 1869), hereinafter called ‘the Act’ shall be accompanied by a certified copy of the certificate of marriage if
no such certificate is available to the petitioner or applicant and if no such certificate is available by an affidavit
setting forth that such certificate is not available. All such petitions or applications shall also be accompanied by the
registered address of the applicant or petitioner under Order VII, rule 19, of the Code of Civil Procedure.

2.(a) The body of such petitioner or application shall, in addition to any particulars required by law to be included,
contain the particulars stated below:—
(i) whether the petitioner or applicant professes the Christian religion;
(ii) the place and date of the marriage and the name, status and domicile of the wife before the marriage;
(iii) the status of the husband and his domicile at the time of the marriage and at the time when the petition is
presented, and his occupation and the places of residence of the parties at the time of the institution of the
suit;
(iv) the principal permanent addresses where parties have cohabited including the address where they last
resided together in India;
(v) whether there is living issue of the marriage, and if so, the names and dates of birth or ages of such issues;
(vi) whether there have been in the Divorce Division of the High Court of Justice in England or in the Court of
Sessions in Scotland or in any court in India if so, what previous proceedings with reference to the
marriage by or on behalf of either of the parties to the marriage and the result of such proceedings;
(vii) the matrimonial offences charged set out in separate paragraphs, with times and places of their alleged
commission;
(viii) the claim for damages, if any;
(ix) the grounds on which the petitioner claims that the District Court, in which the petition is presented, has
jurisdiction to determine the petition;

and, if the petition is one presented by a husband for dissolution of marriage and the alleged adulterer is not made
a co-respondent, the grounds on which the petitioner seeks to be excused from making such adulterer a co-
respondent;

(b) The petition shall conclude with a prayer setting out particulars of the relief claimed including the amount of any
claim for damages and any order for the custody of children which is sought and shall be signed by the petitioner:

Provided that where the petitioner is by reason of absence or for other good cause, unable to sign the petition, it
may be signed by any person duly authorised by him or her to sign the same or to sue on his or her behalf.

3. The statement contained in every petition shall be verified by the Code of Civil Procedure for the verification of
plaints.

4. Where, in an answer to a petition for dissolution of marriage presented by a husband, the wife alleges the
adultery of the husband with a named person a certified copy of the pleading shall, unless the court for good cause
shown otherwise directs, be served upon the person with whom adultery is alleged to have been committed,
accompanied by a notice that such person is entitled, within the time therein specified, to apply for leave to
intervene in the cause.

5. Every petition or notice required to be served under the Act or under these rules shall be served either within or
without British India in the manner prescribed for the service of summons in the Civil Procedure Code, provided that
service shall, as far as possible, be made by delivery of the petition or notice to the person to be served.

6. A respondent, co-respondent, or woman to whom leave to intervene has been given under rule 4 may file in court
an answer to the petition.

7.
(i) Any answer which contains matter other than a simple denial of the facts stated in the petition shall be
verified in respect of such matter by the respondent, co-respondent or intervener, as the case may be, in
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APPENDIX I

the manner required by these rules for the verification of petitions, and when the respondent is husband or
wife of the petitioner, the answer shall contain a declaration that there is not any collusion or connivance
between the parties.
(ii) Where the answer of a husband alleges adultery and prays relief a certified copy thereof shall be served
upon the alleged adulterer. When in such case no relief is claimed, the alleged adulterer shall not be made
a co-respondent but a certified copy of the answer shall be served upon him together with a notice as
under rule 4 that he is entitled within the time therein specified to apply for leave to intervene in the suit,
and upon such application he may be allowed to intervene, subject to such direction as shall then be given
by the court.

8. The provisions of Order VIII, rules 11-13 shall apply to respondents, co-respondents and interveners as though
they were opposite parties in a proceeding.

9.
(i) If it appears to the court that proceedings for the dissolution of the marriage has been instituted in England
or Scotland before the date on which the petition was filed in India, the court shall either dismiss the
petition or stay further proceedings thereon until the proceedings in England or scotland, have terminated
or until the court shall otherwise direct.
(ii) If it appears that such proceedings were instituted after the filing of the petition in India, the court may
proceed, subject to the provision of the Act, with the trial of the suit.

10. Every judgment granting a decree for dissolution of marriage, nullity of marriage, or judicial separation shall
record clear findings as to the facts which give the court jurisdiction to pass the decree, and the court for this
purpose should take care to see that sufficient and proper evidence is adduced in the course of the proceedings to
enable it to record such findings.

11. When the District Judge makes a decree for dissolution of marriage or of nullity of marriage, a copy thereof
shall, if the respondent, co-respondent or intervener has filed a registered address, be served within a month from
the date of decree of such address in the manner prescribed and the parties shall be informed by notice at their
registered address that the case for confirmation of the decree will come on in the High Court on the first Friday
which is a working day after the completion of six clear months from the date of the decree and that no further
notice of the date of hearing in the High Court will be given. The period of six months shall not include the day on
which the decree was made. The parties shall at the same time be warned that a re-marriage before six months
from the date on which the decree is made absolute by the High Court is prohibited by section 57 of the Act and
that such re-marriage is liable under section 19 to be declared a nullity.

12. The District Judge shall then submit the proceedings to the High Court for orders under section 17 or 20, as the
case may be.

13. Cases for confirmation of a decree received from a District Judge under sections 17 and 20 of the Act shall not
be heard by the High Court till after the expiry of six months from the pronouncing of such decree.

14. Cases for confirmation of a decree received from District Judge under sections 17 and 20 of the Indian Divorce
Act shall be put to the Court on the first Friday which is a working day after the completion of six clear months from
the date of the decree of the District Judge and the court may either deal with the matter forthwith or adjourn the
matter.

15. Any person applying under the last paragraph of section 17 of the Act to the High Court to remove the suit from
the court of a District Judge may file an application for the purpose supported by an affidavit setting forth the
grounds on which the applicant relies. A certified copy of the application and affidavit shall be served on all parties
to the suit who may, within a time to be fixed by the High Court, file affidavits in reply and the High Court shall then
make such further orders in the manner as it deems fit.

16. Any person other than the officer appointed under section 17A of the Act wishing to show cause against making
absolute a decree nisi made under section 16 of the Act shall enter an appearance in the suit in which such decree
nisi has been pronounced and at the same time file affidavits setting forth the facts upon which he relies.
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APPENDIX I

17. Certified copies of such affidavits shall be served upon the party in whose favour the decree nisi has been made
at his registered address or upon his advocate authorised to receive service.

18. The party in the suit in whose favour the decree nisi has been pronounced may, within a time to be fixed by the
court file affidavits in answer, and the person showing cause against the decree nisi being made absolute may,
within a further time to be so fixed, file affidavits in reply.

19. A decree nisi made under section 16 shall not be made absolute till after the expiration of six clear months from
the date of the decree nisi. The period of six months shall not include the day on which the decree was made.

13. MADRAS HIGH COURT

(1) RULES UNDER THE HINDU MARRIAGE ACT, 1955

Rules to regulate proceedings under the Hindu Marriage Act, 1955 (Central Act 25 of 1955)

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955)
and Article 227 of the Constitution of India and all other powers hereunto enabling and with the previous approval of
the Governor, the High Court hereby makes the following rules to regulate proceedings under the said Act and they
will come into force on the date of publication in the Fort St. George Gazette:—

1. Form of proceedings.—The following proceedings under this Act shall be initiated by original petitions:—
(i) under section 9 for restitution of conjugal rights;
(ii) under sub-section (1) of section 10 for judicial separation;
(iii) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) under section 11 for declaring a marriage null and void;
(v) under section 12 for annulment of a marriage by a decree of nullity;
(vi) under section 13 for divorce;
(vii) under section 26 to make orders and provisions with respect to the custody, maintenance and education of
children.

2. Every other proceeding subsequent to the petition shall be by an interlocutory application.

3. Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Form No. I
and shall set forth the provision of the Act under which it is made.

4. Contents of petitions.—
(a) Every petition shall state—
(i) the place and the date of the marriage, the names of the parties and theiroccupation, the place and
address where the parties reside or last resided together within the jurisdiction of the court;
(ii) the names of the children, if any, of the marriage together with their dates of birth or ages;
(iii) if prior to the date of the petition, there has been any proceeding under the Act between the parties to
the petition, the full particulars thereof;
(iv) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which the respondent withdrew from the society of the petitioner;
(v) if the petition is for judicial separation, the matrimonial offence alleged or other grounds upon which the
relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner, e.g.:
(1) in the case of alleged desertion, the date and the circumstances under which it began;
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APPENDIX I

(2) in the case of cruelty or sexual intercourse with any person other than his or her spouse, the
specific act of cruelty or sexual intercourse and the occasion when and the places where such acts
were committed together with the name and address of the person or persons with whom the
respondent had sexual intercourse;
(3) in the case of virulent leprosy or venereal disease in a communicable form, when such ailment
began to manifest itself, the nature and the period of the curative steps taken together with the
name and address of the person who treated for such ailment and in the case of venereal disease
that it was not contacted from the petitioner;
(4) in the case of unsoundness of mind, the time when such unsoundness began to manifest, itself the
nature and period of any curative steps taken together with the name and address of the person
who treated for such unsoundness of mind;
(vi) if the petition is for divorce, the matrimonial offence alleged or other grounds upon which the relief is
sought together with the full particulars thereof so far as such particulars are known to the petitioner,
e.g.:
(1) in the case of adultery, the specific acts of adultery and the occasion when and the place where
such acts were committed, together with the name and address of the person with whom such
adultery was committed.
(2) in the case of incurable unsoundness of mind, the time when such unsoundness began to
manifest, itself the nature and the period of any curative steps taken together with the name and
address of the person who treated for such unsoundness of mind.
(3) in the case of virulent and incurable form of leprosy or venereal disease in a communicable form,
when such ailment began to manifest itself, the nature and period of any curative steps taken
together with the name and address of the person who treated for such ailment.
(4) in the case of presumption of death, the last place where the parties lived together and the date
and the place where the respondent was last seen or heard of as alive and the steps, if any, taken
to ascertain his or her whereabouts;
(vii) if the petition is for a decree for nullity of marriage on the grounds specified in clause (c) or clause (d)
of section 12 of the Act, the time when the facts relied on were discovered and whether or not marital
intercourse with the consent of the petitioner took place after the discovery of the said facts.
(b) The petition shall set out at the end the relief or reliefs sought including any claim for—
(i) custody, care and maintenance of children;
(ii) permanent alimony and maintenance;
(iii) costs.

Where a claim is made under clause (ii) above, the petition shall specify the annual or capital value of the
respondent’s property, the amount of his or her annual earnings and other particulars relating to his or her financial
resources and the particulars relating to the petitioner’s income and other property.

5. Contents of written statement.—Every written statement in answer to a petition for restitution of conjugal rights
shall set out the particulars, as far as may be, set out in clauses (v), (vi) and (vii) of sub-rule (a) of rule 4.

6. An application under the proviso to section 14 of the Act for leave to present a petition for divorce before three
years have passed from the date of the marriage, shall be supported by an affidavit setting forth circumstances
relied on and constituting exceptional hardship to the petitioner or exceptional depravity on the part of the
respondent.

7. When a petition is admitted, the Ministerial Officer of the court shall assign a distinctive number to the petition
and all subsequent proceedings on the petition shall bear that number.

8. Along with the petition the petitioner shall furnish a copy thereof for service on the respondent and if a co-
respondent has been impleaded, an additional copy for service on him, together with the fee prescribed under the
Madras Court-fees and suits Valuation Act, 1955, for service of notices.
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APPENDIX I

9.
(i) Notice of the petition shall be in Form No. 2 for settlement of issues and shall require the respondent
and the co-respondent, if one is named in the petition to enter appearance in person or by pleader and
file a written statement not less than seven days before the date fixed in the notice.
(ii) The notice together with a copy of the petition shall be served on the respondent and the co-
respondent, if named, in the manner prescribed for service of summons in suits not less than 21 days
before the date appointed therein.

10. Appeals to the High Court from the decree and orders of the District Court shall be governed by the Rules of the
High Court, Madras Appellate side, as far as they may be applicable.

FORM NO. I

(Rule 3)

IN THE COURT OF THE DISTRICT JUDGE

In the City Civil Court, Madras

Original Petition No ....................of ...... 20 ......

In the matter of the Hindu Marriage Act, 1955

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ........................................................................................................................................... Respondent

Petition under section………………….of the Hindu Marriage Act, 1955 and rule……………. of the Rules under the
Hindu Marriage Act.

FORM NO. II

(Rule 9)

IN THE COURT OF THE DISTRICT JUDGE

In the City Civil Court, Madras

Original Petition No ............................of ............... 20…….

In the matter of the Hindu Marriage Act, 1955

A.B. ............................................................................................................................................... Petitioner

versus

C.D. ........................................................................................................................................... Respondent

Petition presented on ............................

Petition filed on ....................................

Notice issued on .....................................

Whereas on the .......day of ............................20 ....... the above-named petitioner filed a petition against the
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APPENDIX I

respondent for ...................... (specify the relief). You are hereby required to appear in this Court on the
........................day of .....................20 ........ at 10.45 a.m., in the forenoon in person or by pleader duly instructed
and able to answer all material questions relating to the above proceedings.

Also take notice that in default of your appearance on the aforesaid day the issues will be settled and the petition
heard and determined in your absence.

You shall also bring with you or send by your pleader any documents which the petitioner desires to inspect and
any documents on which you intend to rely in support of your defence.

You are required to file a written statement in court on or before the ...................... day of ....20 ......

Given under my hand and the seal of this Court, this ................. day of ...........................20 ......

District Judge/Principal Judge

Notes. —
(1) A copy of the petition accompanies this notice.
(2) This notice should be served not less than 21 days before the day fixed above for settlement of issues.
(3) Should you apprehend that your witnesses will not attend of their own accord, you can have summons
issued from the Court to compel the attendance of any witness and the production of any document that
you have a right to call on the witness to produce on applying to the court and on depositing the necessary
expense.

This notice has been taken out by Shri............................Advocate/Pleader for the petitioner.
(2) MADRAS SPECIAL MARRIAGE RULES, 1954

1.
(1) These rules may be called the Madras Special Marriage Rules, 1954.
(2) They extend to the whole of the State of Madras including the Kanyakumari district and the Shencottah
taluk of the Tirunelveli district and the territories specified in the Second Schedule of the Andhra Pradesh
and Madras (Alteration of Boundaries) Act, 1959.
(3) They shall come into force on the 1st day of January, 1955.

2. In these rules—
(a) ‘The Act’ means the Special Marriage Act, 1954 (Central Act 43 of 1954);
(b) ‘form’ means a form appended to these rules;
(c) ‘section’ means a section of the Act.

3. Every Marriage Officer1 shall cause his name, designation and the regular working hours of his office to be
written in English and in the language or languages of the district and displayed in a conspicuous part of the
building in which his office is situated.

4.
(a) Notice of any intended marriage under the Act shall be given in writing in the form specified in the Second
Schedule to the Act, to the Marriage Officer by both the parties intending to enter into the marriage, either
in person or by registered post.
(b) Where the notice is delivered in person, the fee prescribed therefor in rule 10 shall be paid directly in cash
to the Marriage Officer; where the notice is sent by registered post, the fee shall be remitted by money-
order at the remitter’s expense and the receipt issued to the remitter by the post office through which the
remittance is made shall be attached to the notice.
(c) As soon as the notice has been received by the Marriage Officer, a distinctive serial number shall be
entered on it and such number and the date of receipt of the notice shall be attested by the signature of the
Marriage Officer. If the notice is in conformity with the requirements of the Act, it shall be entered in the
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APPENDIX I

Marriage Notice Book which shall be a bound volume, the pages of which are machine-numbered
consecutively, with a nominal index attached. If the notice is not in conformity with the requirements of the
Act, it shall be got rectified by the parties if they are present, or returned to them by post for rectification
and retransmission within a date to be fixed. Every item of rectification shall be attested by both the parties.

5. A true copy of the notice under the seal and signature of the Marriage Officer shall be exhibited in a conspicuous
place in his office.

6.
(a) Where an objection to the solemnization of an intended marriage together with the fee prescribed therefor
in rule 10 has been received and recorded by the Marriage Officer, he shall, unless by an order in writing
he rejects the objection summarily on the ground that the objection is not based on contravention of any of
the conditions specified in section 4, enquire into the objection on a day to be fixed by him. The day so
fixed shall not be later than thirty days from the date of the objection.
(b) The Marriage Officer shall, at the time of recording the objection, ascertain from the object or whether he
has any documents on which he relies or whether he desires any witness or witnesses to be examined on
his behalf. If the objector states that he has, the Marriage Officer shall require the objector to produce the
documents or the witnesses on the day fixed for the enquiry. If the objector desires that summonses shall
be issued to the witnesses to appear and give evidence or to produce any document, the Marriage Officer
shall issue such summonses to the witnesses cited, on payment of the process fee prescribed therefor in
rule 10 and the reasonable expenses of travelling and subsistence of the witnesses. The enquiry relating to
the objection including the production of documents and the examination of witnesses shall be completed
and the decision of the Marriage Officer arrived at within a period of thirty days specified in section 8. If
within the prescribed period, the documents are not produced and the witnesses do not appear before the
Marriage Officer, the Marriage Officer shall take a decision without waiting for the production of such
documents or the appearance of such witnesses.
(c) The Marriage Officer shall also give notice of the date and time fixed for the inquiry to the parties to the
intended marriage.
(d) The notice of summons to any party or witness under this rule shall be in Form I or Form II, as the case
may be, and shall be sent by registered post.
(e) On the date fixed for the enquiry or any adjourned date, the Marriage Officer shall record in his own hand
the evidence given in the course of the inquiry, his decision on the objection and the reasons therefor.

7.
(a) An application under section 16 for the registration of a marriage celebrated in other forms shall be in Form
III.
(b) Such application shall be presented to the Marriage Officer by any one of the parties in person or sent to
him by registered post.
(c) Notice of the application under sub-rule (a) shall be given by the Marriage Officer by exhibiting a true copy
thereof under his seal and signature in a conspicuous place outside his office. The notice shall also state
that objections, if any, to the registration of the marriage should be preferred by the objector in person
orally or in writing to the Marriage Officer within thirty days from the date on which the notice is exhibited.
(d) Any objection received within the said period together with the fee prescribed therefor in rule 10 shall be
recorded and the enquiry in respect thereto made as nearly as possible in the manner prescribed in rule 6.

8. The Marriage Officer may, on application by both the parties to the marriage, solemnize the same at any place
outside his office, provided the additional fee prescribed therefor in rule 10 is paid and the hour is not unreasonable.

9. The Marriage Certificate Book shall be a bound volume, the pages of which are machine-numbered
consecutively with a nominal index attached. Every marriage certificate entered therein during each calendar year
shall be consecutively numbered and every authenticated copy of a certificate issued to the parties shall bear this
number and the date, the month and the year in which the certificate was entered.

10. The following fees shall be levied by the Marriage Officer:

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APPENDIX I

Rs. NP.

(i) For every notice of intended marriage or 3.00

application for the registration of a
marriage (to be paid by the parties to the
marriage) … … … …

(ii) For every enquiry into an objection (to 2.00

be paid by the objector) … … … … …

(iii) For every notice and for every summons 0.50

to a witness to appear and give evidence
or produce a document (to be paid by
the objector) … … … …

(iv) For solemnizing or registering a 10.00

marriage (to be paid by the parties to the
marriage) … … … …

(v) For a certified copy of an entry— 2.00

(a) in the Marriage Notice Book other

than an entry relating to an objection, or

(b) in the Marriage Certificate Book (to

be paid by the applicant) … … … …

(vi) For a certified copy of an entry in the 2.00

Marriage Notice Book other than a
notice or of any other proceeding not
already provided for (to be paid by the
applicant) … … … …

(vii) For solemnizing a marriage at any place 15.00

outside the office of the Marriage Officer,
in addition to the fee in entry (v) (to be
paid by the parties to the marriage)… …
……

(viii) For making a search (to be paid by the

applicant)—

(a) if the entry is of the current year … … 0.50

(b) if the entry related to any previous 1.00

year or years

Provided that a fee of 25 paise in the shape of court fee labels shall be affixed on an application for the grant of a
certified copy.

The fees prescribed above shall be paid either in person or remitted by money-order to the Marriage Officer.

A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and the
Rules. The receipt books shall be bound volumes of hundred leaves each with foils and counter-foils which shall be
machine-numbered. Consecutively, all money received by the Marriage Officer except the fee mentioned in Entry
(vii) above shall be remitted into local treasury.

10A. Refund.—The Marriage Officer may refund any fee paid to him in excess of the amount prescribed or any fee
that is unearned by Government:

Provided that the previous sanction of the District Registrar shall be obtained, if the Marriage Officer is a Sub-
Registrar.
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APPENDIX I

Explanation.—The expression ‘fee that is unearned by Government’ in the rule shall mean fee paid in connection
with any service to be performed by the Marriage Officer but not actually performed and will include amounts
intended to be appropriated by the Marriage Officer under the note to rule 10(viii) but inadvertently remitted into the
treasury.

11. Copies of entries in the Marriage Certificate Book which Marriage Officers are required to send under section 48
to the Registrar-General of Births, Deaths and Marriages shall be certified in and shall be sent at intervals of three
months on or as nearly as possible in each year should no entries have been made in the Book during the
preceding three months, a certificate to this effect shall be sent to the said Registrar-General.

The Governor of Madras hereby appoints the following officers to be the Marriage Officer for the purpose of the said
Act:
(1) The Sub-Registrar of Ootacamund with jurisdiction over the Nilgiris revenue district.
(2) The Joint Sub-Registrar, or the Senior Joint Sub-Registrar where there are more than one Joint Sub-
Registrars attached to the office of the District Registrar concerned:

Provided that the Joint Sub-Registrar or as the case may be, the Senior Joint Sub-Registrar shall exercise the
powers of a Marriage Officer under the said Act only during the absence of the District Registrar concerned.

(3) RULES UNDER THE INDIAN DIVORCE ACT, 1869

Matrimonial Suits

1. Every proceeding under the Indian Divorce Act, which is hereby required to be made by petition, shall be by an
original petition entitled in the matter of the said Act. Every such petition shall be accompanied by a certified copy of
the marriage if such certificate is available to the petitioner.

2. The original petition shall state whether the parties are domiciled in India at the commencement of the
proceedings and shall be presented to the Registrar who shall if the same is admitted endorse thereon a day
certain for the first hearing.

3. The petition shall conclude with a prayer setting out particulars of the relief claimed, including the amount of any
claim for damages and any order for custody of children which is sought and shall be signed by the petitioner:
provided that where the petitioner is, by reason of absence or for other cause, unable to sign the petition, it may be
signed by any person duly authorized by him or her to sign the same or to sue on his or her behalf.

4. The statements contained in every petition shall be verified by the petitioner or some other competent person in
manner required by the Code for the verification of plaints.

5. The summons to the respondent shall be in Form no. 73 and shall require the respondent to file in court a written
statement, not less than three days before the day appointed for the first hearing and shall be accompanied by a
copy of the petition. The provisions of the Code and of these rules relating to issue of summons and service thereof
shall apply thereto: provided that no service shall be necessary of any petition or notice to make a decree absolute.

6. Where a husband is charged with adultery with a named person, a certified copy of the pleading containing such
charge shall, unless the court for good cause shown otherwise directs, be served upon the person with whom
adultery is alleged to have been committed, accompanied by a notice that such person is entitled, within the time
therein specified, to apply for leave to intervene in the cause, and the intervener may thereupon file into court an
answer to the petition.

When a petitioner in any matrimonial suit has been guilty of adultery, the petitioner shall include a paragraph stating
that the petitioner has committed adultery and there shall be added a prayer for the exercise by the court of
discretion in favour of the petitioner in spite of the adultery committed. With the petition there shall be filed an
affidavit by the petitioner setting out fully all the facts in respect of each act of adultery including dates, places and
name or names, of the person or persons with whom and circumstances in which committed together with the
grounds upon which the discretion is sought. This affidavit will be placed in a sealed cover by the Registrar or other
officer of the court and be kept with the petition and will not be open to inspection by any party or person named in
the suit.
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APPENDIX I

7. Unless otherwise ordered an original petition shall be served not less than fourteen clear days before the day
appointed for the first hearing and on the said day the Registrar shall post the case in the undefended board if no
written statement is filed in the meanwhile.

8. An application in a pending original petition, which is required by the said Act to be by petition, shall be entitled in
the said original petition and shall state the section of the Act under which it is presented. The petition and copy
thereof for service shall be presented to the Registrar, who shall, if the same is admitted, endorse the date
appointed for the hearing on the petition and copy. Service shall be effected by serving the copy so endorsed in
manner prescribed for service of a summons in Form no. 15 not less than five clear days before the day appointed
for the hearing.

9. The Registrar shall, unless the application is one that may be made to the Master, post the case before the
Judge on the day so appointed, or if there is no Judge then sitting on any day thereafter.

10. The following applications shall be made to the Judge and unless the court otherwise orders, notice thereof, and
of any affidavits, to be used in support thereof, shall be served not less than five clear days before the return day—
(1) for leave to show cause why a decree nisi should not be made absolute;
(2) to discharge or vary a protection order made under section 28 of the said Act;
(3) to discharge or modify an order for permanent alimony;
(4) to appoint a new trustee in respect of permanent alimony;
(5) for the settlement of any property or damages, if not made at the hearing of the suit.

11. Except as provided by the said Act, or by these rules, an application in any pending proceeding, under the said
Act may be by an interlocutory application.

12. Unless the court otherwise orders, any facts required to be proved upon an interlocutory application, shall be
proved by affidavit.

13. Unless otherwise ordered, a decree nisi shall direct that the further hearing of the suit be adjourned to a day
certain, not less than six nor more than nine months from the date thereof. On the adjourned day, the case shall be
posted for hearing, and if the petitioner does not appear and move for the decree to be made absolute, the court
may dismiss the suit, or make such order as it thinks fit. In moving for the decree made absolute, the petitioner shall
file an affidavit that no proceedings for the dissolution of the marriage have been instituted or pending in any other
court and that search has been made in the proper books at the court up to within six days of the time appointed
and that at such time no person had intervened or obtained leave to intervene in the suit, and that no appearance
has been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi
being made absolute; and in case leave to intervene has been obtained or appearance entered or affidavits filed on
behalf of such person, it must be shown by affidavit what proceedings, if any, have been taken thereon.

14. Subject to the foregoing rules, the provisions of the Code and of these rules with respect to civil suits and
matters shall apply to all proceedings under the said Act.

15. Any person other than the officer appointed under section 17A of the Indian Divorce Act, wishing to show cause
against making absolute a decree nisi, shall, if the court so permits, enter an appearance in the petition in which
such decree nisi has been pronounced and at the same time file affidavit setting forth the facts upon which he
relies. Such application shall be made to the court.

16. Unless the court otherwise orders, notice of the said application and certified copies of the affidavits shall be
served upon the officer and the party or the advocates of the party in whose favour the decree nisi has been
pronounced not less than five clear days before the return day.

17. The party in the petition in whose favour the decree nisi has been pronounced may, unless the court otherwise
orders within three days from the date of service of the notice and the affidavits, file affidavits in answer.

18. The person showing cause against the decree being made absolute shall then be served with certified copies of
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APPENDIX I

the affidavits in answer, and he may thereupon, unless the court otherwise orders, file within three clear days from
the date of service, affidavits in reply.

19. Certified copy of affidavits in answer and affidavits in reply shall also be served on the officer.

20. The rules framed under section 17A of the Indian Divorce Act (4 of 1869) shall be read as part of these rules.

21. All proceedings of the Parsi Chief Matrimonial Court of Madras under the Parsi Marriage and Divorce Act (3 of
1930) shall be regulated by the provisions of the Code, and so far as such provisions are void or modified by these
rules.

14. ORISSA HIGH COURT

(1) RULES UNDER THE HINDU MARRIAGE ACT, 1955

1. Short title and commencement.—

(i) These rules may be called the Hindu Marriage and Divorce Rules, 1956.
(ii) These rules shall come into force with immediate effect:
Provided that nothing contained in these rules will effect the validity of any pending proceeding under the Act,
but the petitions already filed under the Act shall be made consistent with these rules by necessary amendment
or remedy of the defects within a time fixed by the court.

2. Definitions.—
(i) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) ‘Code’ means the Code of Civil Procedure, 1908.
(iii) ‘court’ means the court mentioned in section 3(b) of the Act.

3. Proceedings under the Act and petitions.—

(a) Every proceeding under the Act shall be registered as a suit.
(b) Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of
section 13 of the Act shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights, as the case may be.

4. Contents of petitions.—In addition to the particulars required to be given under Order 7, rule 1 of the Code of
Civil Procedure and section 20 of the Act, every petition for judicial separation, nullity of marriage and divorce shall
contain the following particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband, before and after the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last resided
together;
(d) whether there is living any issue of the marriage and if so, the names and dates of birth or ages of such
issues:
(i) in every petition presented by a husband for divorce on the ground that his wife is living in adultery with
any person or persons or for judicial separation on the ground that his wife has committed adultery with
any person or persons so far as they can be ascertained;
(ii) in every petition presented by a wife for divorce on the ground that her husband is living in adultery
with any woman or women or for judicial separation, on the ground that her husband has committed
adultery with any woman or women, the petitioner shall state the name, occupation and place of
residence of such woman or women, so far as they can be ascertained;
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APPENDIX I

(e) whether there have been in any court in India, and if so, what previous proceedings with reference to the
marriage by or on behalf of either of the parties and the result of such proceedings;
(f) the matrimonial offence or offences charged, set out in separate paragraphs with the time and place of its
or their alleged commission;
(g) property mentioned in section 27 of the Act, if any;
(h) the relief or reliefs prayed for.

5. Necessary parties.—
(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or
has committed adultery with any person, the petitioner shall make such person a co-respondent. The
petitioner may, however, apply to the court by an application supported by an affidavit for leave to dispense
with the joinder of such person as a co-respondent on any of the following grounds:—
(i) that the name of person is unknown to the petitioner although he has made efforts for discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom adultery has been committed; and
(iv) for any other sufficient reason the court may deem fit to consider.
(b) In every petition under section 11 of the Act on the ground that condition in section 5(1) is contravened, the
petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.
(c) In every petition under section 13(2)(i) of the Act the petitioner shall make ‘the other wife’ mentioned in the
section a co-respondent.

6. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within three years of such marriage
he or she shall obtain leave of the court under section 14 of the Act on ex parte application made to the
court in which the petition for divorce is intended to be filed.
(2) The application shall be supported by an affidavit made by the petitioner setting out the particulars of
exceptional hardships to the petitioner or exceptional depravity on the part of the respondent on which
leave is sought.
(3) The evidence in such application may, unless the court otherwise directs, be given by affidavit.
(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. The petitioner within a week of the date of the said order shall file sufficient number of copies of
application for leave and order of the court thereon and of the petition for divorce for service upon the
respondent in the petition.

7. Service of copy of application for and order granting leave on the respondents and procedure after
service.—
(1) When the court grants leave under the preceding rule a copy of the application for leave and order granting
shall be served on each of the respondents along with the notice of the petition for divorce.
(2)
(a) When the respondent desires to contest the petition for divorce on the ground

that leave for filing the petition has been erroneously granted or improperly obtained, he or she shall set
forth in his or her written statement the grounds with particulars on which the grant of leave is sought to
be contested.
(b) The court may, if it so deems fit, frame, try and decide the issue as to the propriety of the leave granted
as a preliminary issue.
(c) The court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.
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APPENDIX I

8. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby in
the manner provided for service of summons under Order V of the Code of Civil Procedure.

9. Written statements in answers to petitions by respondents.—The respondent may, and if so required by the
Court, shall, present a written statement in answer to the petition. The provisions of Order VIII of the Code shall
apply mutatis mutandis to such written statements. In particular, if in any proceedings for divorce the respondent
oppose the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion or, the written
statement shall state the particulars of such adultery, cruelty or desertion.

10. Intervenors petitions.—

(1) Unless the court for good cause shown otherwise directs where the written statement of the respondent
alleges adultery by the petitioner with a named man or woman a copy of such statement or such material
portion thereof containing such allegation shall be served on such man or woman accompanied by a notice
that such person is entitled within the time therein specified to apply for leave to intervene in the case.
(2) Costs regarding intervention.—
(a) Whenever the court finds that an intervener had no sufficient grounds for intervening it may order the
intervener to pay the whole

or any part of the costs occasioned by the application to intervene.

(b) When the court finds that the charge or allegation of adultery against the intervener made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
the person making such charge or allegation against the intervener to pay to the intervener the whole
or any part of the costs ofintervention.

11. Answer.—A person to whom leave to intervene has been granted may file in the court an answer to written
statement containing the charge or allegation against such intervener.

12. Mode of taking evidence.—The witnesses in all proceedings before the court, where their attendance can be
had, shall be examined orally, and any party may offer himself or herself as a witness and shall be examined, and
may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that
the deponent in every such affidavit shall on the application of the opposite party, or by direction of the court, be
subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination may be
re-examined orally as aforesaid by or on behalf of the party by whom affidavit was filed.

13. Application for alimony and maintenance.—

(a) Every application for maintenance pendente lite permanent alimony and maintenance, or for custody,
maintenance and education expenses of minor children, shall state the average monthly incomes of the
petitioner and the respondent, the sources of these incomes, particulars of other moveable property owned
by them, the number of dependents on the petitioner and the respondent, and the names and ages of such
dependents.
(b) Such application shall be supported by an affidavit of the applicant.

14. Taxation of costs.—Unless otherwise directed by the court, the costs of the petition under the Act shall be
costs as taxed in a suit.

15. Order as to costs.—The award of costs shall be within the discretion of the court.

(2) RULES TO REGULATE CASES FOR CONFIRMATION OF A DECREE FOR DISSOLUTION OF MARRIAGE
UNDER SECTION 17 OF THE INDIAN DIVORCE ACT, 1869

Orissa High Court Rules, 1948

PART VII
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APPENDIX I

CHAPTER XXX

(1) In all cases of reference to the High Court by a subordinate court under section 17 of the Indian Divorce
Act, 1869 (4 of 1869), no application for confirmation by the plaintiff in the case need be filed. After the
lapse of three months from the date of the decree passed by the lower court and awaiting confirmation,
notice may be issued to the parties on both sides by the High Court suo motu. Within a reasonable time
after service of notices, and after lapse of the statutory period of six months, the reference itself is to be
posted for disposal irrespective of any motion by the parties concerned.
(2) The paper-books are to be prepared by the court suo motu without awaiting service of notices.
(3) In all such cases, if the parties do not appear through a lawyer at the final hearing, the order finally passed
by the court disposing of the reference (apart from the judgment) should be communicated by the court to
all the parties direct.

(3) THE ORISSA SPECIAL MARRIAGE RULES, 19551

In exercise of the powers conferred by section 50 of the Special Marriage Act, 1954 (Central Act XLIII of 1954), the
Government of Orissa hereby makes the following rules, namely:—

1.
(1) These rules may be called the Orissa Special Marriage Rules, 1955.
(2) They extend to the whole of the State of Orissa.
(3) They shall come into force at once.

2. In these rules,—
(1) “the Act” means the special Marriage Act, 1954 (Central Act 43 of 1954);
(2) “section” means a section of the Act;
(3) “Marriage Officer” means a Marriage Officer appointed under sub-section (1) of section (3) of the Act;
(4) “Registrar-General” means the Registrar-General appointed under Act VI of 1886;
(5) “Marriage Notice Book” means the Marriage Notice Book prescribed under section 7 of the Act;
(6) “Marriage Certificate Book” means the marriage Certificate Book prescribed under section 13 of the Act.

3.

(1) Every Marriage Officer shall cause his name, designation and the regular working hours of his office to be
written in English and in the language or languages of the district and exhibited in a conspicuous part of the building
in which his office is situated.

(2) All registrations at the office shall be made on working days during office hours according as the office sits from
10.30 a.m. to 4.30 p.m. or 7 a.m. to 12.30 p.m. or otherwise.

4. Notice of intended marriage under the Act shall be given to the Marriage Officer by both the parties either in
person or by registered post and fees prescribed therefor under rule 10, shall be paid in the former case in person
and in the latter case by postal money order at the expense of the remitter and the postal receipts shall be attached
to the notice.

5.
(1) The Marriage Officer on receipt of such notice shall scrutinise if the notice is in conformity with the
requirements of the Act and if so shall assign to it distinctive serial number which shall run concurrent with
the calendar year and put the date of receipt and his signature and designation under it and shall enter it in
the Marriage Notice Book in Form I which shall be a bound book the pages of which are machine
numbered consecutively with a nominal index attached to it. If the notice is not in conformity with the
requirements of the Act, it shall be got rectified if the parties are present or returned to them by registered
 Page 163 of 245
APPENDIX I

post forthwith for rectification and retransmission within a date to be fixed. Any erasure or alteration in a
notice shall be attested by the full signatures of both the parties to the notice.
(2) A true copy of the notice under the seal and signature of the Marriage Officer shall be displayed in a
conspicuous place in his office for thirty days before the registration of the marriage.

6.
(1) Where an objection to the solemnisation of an intended marriage together with the fees prescribed therefor
in rule 10 has been received and recorded by the Marriage Officer he shall, unless by an order in writing
recorded in the Marriage Notice Book reject the objection summarily on the ground that the objection does
not contravene any of the conditions laid down in section 4, enquire into the objection on a day to be fixed
by him, not later than thirty days from the date of receipt of such objection. He shall also send a copy of the
objection to the parties to the intended marriage giving them notice of the date and time fixed for the
enquiry in Form II.
(2) At the time of recording the objection, the Marriage Officer shall ascertain from the objector whether he has
any document on which he relies or whether he desires any witness or witnesses to be examined on his
behalf. If the objector states that he has, the Marriage Officer shall require the objector to produce the
documents or the witnesses on the day fixed for the enquiry. If necessary and the objector so desires the
Marriage Officer shall issue summons to the witnesses cited by the objector in Form III, on payment of
process fees prescribed therefor in rule 10 and the reasonable expenses of travelling and subsistence to
the witnesses. The enquiry relating to the objection including the production of documents and the
examination of witnesses shall be completed and the decision of the Marriage Officer arrived at within the
period of thirty days specified in section 8. If either the documents are not produced or the witnesses do
not turn up in time, the Marriage Officer may take a decision without waiting for them, subject however to
the provision of section 9 of the Act.
(3) On the day fixed for enquiry or on any adjourned date, the Marriage Officer shall record in his own hand
the evidence given in the course of the enquiry, his decision on the objection and the reasons therefor.
(4) If the Marriage Officer is satisfied that the objection is baseless, he shall register the marriage, otherwise
the registration shall be refused and the reasons for such refusal shall be entered in the register of
refusals, which shall be maintained by him in Form IV. The order shall be communicated to the parties
concerned, including the objector.

7.

(1) An application under section 16 for the registration of a marriage celebrated in other forms shall be in Form V.

(2) Such application shall be presented to the Marriage Officer by any one of the parties in person or sent to him by
registered post along with fees prescribed therefor in rule 10.

(3) Notice of the application under sub-rule (1) be given by the Marriage Officer by exhibiting a true copy thereof
under his seal and signature in a conspicuous place outside his office. The notice shall also state that objections, if
any, to the registration of the marriage may be preferred by any person in writing to the Marriage Officer within thirty
days from the date on which the notice is exhibited.

(4) Any objection received within the said period together with the fees prescribed therefor in rule 10 shall be
recorded and the enquiry in respect thereto made as nearly as possible in the manner prescribed in rule 6.

8. The Marriage Officer may on application by both the parties to the marriage, solemnise the same at any place
outside his office, provide the additional fee prescribed therefor in rule 10 is paid and the hour is not unreasonable.

9. The Marriage Certificate Book shall be a bound volume, the pages of which are machine numbered
consecutively with a nominal index attached. Every marriage certificate entered therein during each calendar year
shall be consecutively numbered.

10. The following fees shall be levied by the Rs.

Marriage Officers—

(i) For every notice of intended marriage or 3

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APPENDIX I

application for the registration of a

marriage (to be paid by the parties to the
marriage)

(ii) For recording an objection (to be paid by

the objector)

(iii) For every enquiry into an objection (to 50

be paid by the objector)

(iv) For every notice and for every summons 8

to a witness to appear and give evidence
or to produce a document (to be paid by
the objector)

(v) For solemnising or registering a 10

marriage (to be paid by the parties to the
marriage)

(vi) For a certified copy of an entry— 2

(a) in the Marriage Notice Book other

than an entry relating to an objection, or

(b) in the Marriage Certificate Book (to

be paid by the applicant)

(vii) For a certified copy of an entry in the 2

Marriage Notice Book other than a
notice or of any other proceedings not
already provided for (to be paid by the
applicant)

(viii) For solemnising a marriage at any place 10

outride the office of the Marriage Officer
in addition to the fee in entry (v) to be
paid by the parties to the marriage
Note.—This fee may be appropriated by
the Marriage Officer. No travelling or
other allowances shall, however be
claimed in addition.

(ix) For making a search

(to be paid by the
applicant)—

Rs. a. p.

(a) if the entry is of the 0 8 0

current year

(b) if the entry is 1 0 0

related to any previous
year or years for each
year of search

The fees prescribed above shall be paid either in person or remitted by money order to the Marriage Officer.

11. A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and
rules. The receipt books shall be bound volumes of one hundred leaves each with foils and counterfoils which shall
be machine numbered consecutively.
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APPENDIX I

12. All fees received by the Marriage Officer except the fees mentioned in Entry (viii) above shall be remitted into
the local Treasury being credited to Government under the head “XI—registration—Miscellaneous—Fees under the
special Marriage Act”.

13. Copies of entries in the Marriage Certificate Book which Marriage Officers are required to send under section 48
of the Act to the Registrar-General of Births, Deaths and Marriages shall be certified in Form VI and shall be sent
once in every quarter of the year during the first week of January, April, July and October for entries relating to the
preceding quarter. Should no entries have been recorded in the Book during the preceding three months, a
certificate to this effect shall be sent to the said Registrar-General.

14. An annual alphabetical index of all marriages registered under this Act shall be prepared and maintained in the
offices of the Marriage Officer and the Registrar-General in Form VII.

15. Forms and books shall be supplied free of cost to the Marriage Officers by the Registrar-General.

16. The Books and forms shall be

prescribed as given below:

(i) Marriage Notice Book Permanent

(ii) Declaration Permanent

(iii) Marriage Certificate Book Permanent

(iv) Index Permanent

(v) Refusal register 12 years

(vi) Notice of Registration 12 years

(vii) Notice of objection and enquiry 12 years

(viii) Receipt Book 3 Years

FORM I

[ Seerule 5]

MARRIAGE NOTICE BOOK

Male Female
(1) Names of parties
(2) Whether—unmarried

Divorced

Widower, or widow

(3) Age
(4) Occupation
(5) Present address
(6) Permanent address
(7) Length of residence
(8) Date of notice
 Page 166 of 245
APPENDIX I

(9) Nature of objection

(10) Remarks
(11) Signature of Marriage Officer with date

FORM II

[See rule 6(1)]

NOTICE

Before the Marriage Officer.................. (Place)

In the matter of the Special Marriage Act, 1954, and in the matter of the intended marriage/application to register
the marriage between—

AB }

and Give names and address

CD

EF Objector

To,

Whereas notice of an intended marriage/an application for the registration of the marriage between AB and CD was
received by the Marriage Officer on...............................

Whereas EF had preferred certain objections (set out overleaf) to the solemnisation/registration of the marriage;
and

Whereas the Marriage Officer will hold an enquiry into the matter of the said objections on.................. day
of................................. 20..................... at his office:

You are hereby required to be present at.......................... a.m./p.m. on the said day together with all documents on
which you rely and any witness or witnesses whom you may desire to be examined on your behalf.

Take notice that in default of your appearance on the aforesaid day, the inquiry will be made and decided in your
absence.

Should you apprehend that your witness will not attend unless summoned by the Marriage Officer, you should apply
to the Marriage Officer for the issue of such summons sufficiently early together with the prescribed process fee and
the reasonable expenses of travelling and subsistence of the witness.

Given under my hand and seal.

Station

Date

Signature

Marriage Officer

Seal

(Set out the objection on the reverse of this notice)

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APPENDIX I

FORM III

[ Seerule 6(2)]

SUMMONS TO WITNESS

Before the Marriage Officer(Place)

In the matter of the Special Marriage Act, 1954, and

In the matter of the intended marriage/application to register the marriage between—

AB }

and Give names and address

CD

EF Objector

To,

.................

Whereas your attendance is required to give evidence on behalf of...............in the above matter, you are hereby
required to appear personally before me or to cause to be produced before me the document specified hereunder,
on the............................day of............................20.................... at............................a.m./p.m. A sum of
Rs............................being your travelling and other expenses for one day is herewith sent.

If you fail to comply with this summons without lawful cause you will be subject to the consequences of non-
attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.

Take notice that in default of your appearance on the aforesaid day, the inquiry will be made and decided in your
absence.

Given under my hand and seal.

Station:

Date: Marriage Officer

Seal

FORM IV

[See rule 6(f)]

Serial No. Names of Parties Reasons for refusal Date of Date of filing appeal,
communication of if any, and the result
order of such appeal
1 2 3 4 5

Place:

Date: Signature of Marriage Officer

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APPENDIX I

FORM V

[See rule 7(1)]

APPLICATION FOR REGISTRATION OF A MARRIAGE UNDER SECTION 15 OF THE SPECIAL MARRIAGE

ACT, 1954 (ACT 43 OF 1954)

1. Name of parties—

AB (husband)

AD (Wife)
2. Age or date of birth-

Husband

Wife
3. Permanent dwelling place, if any
4. Present dwelling place
5. Relationship, if any, of parties before marriage.
6. A ceremony of marriage was performed between AB and CD on............................................
at............................... and we declare that we have been living together as husband and wife ever since
the date noted above.

15. PATNA HIGH COURT

HINDU MARRIAGE RULES, 19561

The following rules framed by the High Court of Judicature at Patna under sections 14 and 21 of the Hindu Marriage
Act, 1955 (25 of 1955) are published for general information. The rules will take effect from the date of publication.

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955), the High
Court of Judicature at Patna hereby makes the following rules:—

1. Short title and commencement.—

(i) These rules may be called the Hindu Marriage Rules, 1956.
(ii) The rules shall come into force on the date of publication in the Bihar Gazette.

2. Definitions.—
(i) ‘The Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) ‘court’ means the court mentioned in section 3(b) of the Act.

3. Form of the proceeding.—The following proceeding under the Act shall be initiated by original petitions:—
(i) under section 9 for restitution of conjugal rights;
(ii) under sub-section (1) of section 10 for judicial separation;
(iii) under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) under section 11 for declaring a marriage null and void;
(v) under section 12 for annulment of a marriage by a decree of nullity;
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APPENDIX I

(vi) under section 13 for divorce;

(vii) under section 26 to make, revoke, suspend or vary an order for provision regarding the custody,
maintenance or education of minor children.

4. Every other proceeding, subsequent to the original petition mentioned in rule 3, shall be initiated by an
interlocutory application.

5. Every petition, application, affidavit, decree or order under this Act shall be headed by a cause title in Form No. I
given in the schedule to these rules with such variation as may be necessary and shall be drawn up, so far as
possible, in the forms prescribed in the schedule to the Indian Divorce Act, 1869 (4 of 1869).

6. When a husband or a wife is a lunatic or an idiot, any petition under the Act other than a petition for restitution of
conjugal rights may be brought on his or her behalf by the person entitled to his or her custody.

7. Petitions of minors.—
(i) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the court;
and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in
writing to be answerable for costs such undertaking shall be filed in court, and the next friend shall
thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
(ii) The next friend shall file an affidavit along with the petition, which shall state the age of the minor, that the
next friend has no adverse interest that of the minor and the next friend is otherwise a fit and proper person
to act as such.
(iii) The court may on considering the affidavit and such other material as it may require, record its approval to
the representation of the minor by the next friend or pass such order or orders as it may deem fit.

8. Contents of petition.—In addition to the particulars required to be given under Order VII, rule 1 of the Code of
Civil Procedure, every original petition shall state—
(i) the place and the date of the marriage;
(ii) the names of the parties and their occupation;
(iii) the principal permanent address where the parties cohabited including the address where they last resided
together;
(iv) the names of the children, if any, of the marriage together with their dates of birth or ages;
(v) if prior to the date of the petition there has been any proceeding between the parties to the petition with the
reference to their marriage in any court in India, the result and the full particulars, thereof;
(vi) if the petition is for restitution of conjugal rights the date on or from which and the circumstances under
which the respondent withdrew from or terminated conjugal relationship with the petitioner;
(vii) if the petition is for judicial separation or divorce the matrimonial offence alleged or other grounds upon
which the relief is sought, together with full particulars thereof so far as such particulars are known to the
petitioner, e.g.—
(a) in the case of alleged desertion the date and the circumstances under which it began;
(b) in the case of presumption of death, the last place where the parties lived together and the date when
and the place where respondent was last seen or heard of as alive and the steps, if any, taken to
ascertain his whereabouts;
(c) in the case of cruelty or adultery the specific acts of cruelty or adultery and the occasions when and the
places where such acts were committed;
(d) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest
itself, the nature and period of any curative steps taken together with the name and address of the
person, if any, who treated for such unsoundness of mind;
(e) in the case of leprosy, or venereal disease in a communicable form, when such ailment began to
manifest itself, the nature and the period of the curative steps, if any, taken together with the name and
address of the person who treated for such ailment and whether or not such ailment was contacted
from the petitioner;
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(f) in case of an allegation of fraud, a complete specification of the facts which constitute the fraud;
(viii) if the petition is for a decree of nullity of marriage on the ground specified in clause (c) or clause (d) of
section 12 of the Act, the time when the facts relied on were discovered and whether or not marital
intercourse with the consent of the petitioner took place after the discovery of the said facts;
(ix) if the petition is by a husband for divorce on the ground that the wife is living in adultery or judicial
separation on the ground that his wife committed adultery with any person, the name, occupation and
place of residence of such person, so far as they can be ascertained;
(x) if the petition is by a wife for divorce on the ground that the husband is living in adultery or judicial
separation on the ground that her husband committed adultery with any woman, the name, occupation and
place of residence of such woman, so far as they can be ascertained;
(xi) if the petition is by the wife for divorce on the ground that her husband has been guilty of rape, sodomy and
bestiality, all particulars in proof of the same, accompanied by a certified copy of judgment, if any, in case
of conviction;
(xii) if the petition is one for a decree of dissolution of marriage or of nullity or annulment of marriage or for
judicial separation, that there is no collusion or connivance between the petitioner and the other party to
the marriage or alleged marriage;
(xiii) the details of the property, if any, mentioned in section 27;
(xiv) set out at the end the relief or reliefs sought, including any claim for—
(a) damages against the co-respondent;
(b) custody, care and maintenance of children; and
(c) permanent alimony and maintenance; and
(d) costs.

Where a claim is made under clause (c), the petition shall specify the annual or capital value of the husband’s
property, the amount of his annual earning and other particulars relating to his financial resources and also the
annual or capital value of the wife’s property.

9. Verification.—Statements contained in every petition shall be verified by the petitioner or some other competent
person in the manner required by the Code of Civil Procedure for the time being in force for the verification of
plaints.

10. Application for leave under section 14 of the Act.—

(1) Where any party to a marriage desires to present a petition for divorce within three years of such marriage,
he or she shall obtain leave of the court under section 14 of the Act on ex parte application made to the
court in which the petition for divorce is intended to be filed.
(2) The application shall be accompanied by the petition intended to be filed bearing the proper court fee
under the law and in accordance with the rules. The application shall be supported by an affidavit made by
the petitioner setting out the particulars of exceptional hardships to the petitioner or exceptional depravity
on the part of the respondent on which leave is sought.
(3) The evidence in such application may, unless the court otherwise directs, be given by affidavit.
(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. Within a week of the date of the said order or within such further time as may be fixed by the court,
the petitioner shall file sufficient number of copies of application for leave and order of the court thereon
and of the petition for divorce for service upon the respondent in the petition.

11. Service of copy of application for and order granting leave on the respondents and procedure after service.—
(1) When the court grants leave under the preceding rule a copy of the application for leave and order granting
leave shall be served on each respondents along with the notice of the petition for divorce.
(2)
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(a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her
written statement the grounds with particulars on which the grant of leave is sought to be contested;
(b) The court may, if it so deems fit, frame, try and decide the issue as to the property to leave granted as
a preliminary issue;
(c) The court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.

12. Every petition made under the Act shall be accompanied by a certified copy of the certificate from the Hindu
Marriage Registrar, if any, prescribed by the State Government about the solemnisation of the marriage under the
Act. A petition for divorce on any of the grounds mentioned in clauses (viii) and (ix) of sub-section (1) of section 13
of the Act shall be accompanied by a certified copy of a decree for judicial separation or for restitution of conjugal
rights, as the case may be.

13. When a petition is admitted, the Chief Ministerial Officer of the court shall assign a distinctive number to the
petition and all subsequent proceeding on the petition shall bear that number.

14. Along with the petition, the petitioner shall furnish a copy thereof for service on the respondent and if co-
respondent is impleaded, an additional copy for service on him, together with the fee prescribed under the Court-
fees Act for service of notices.

15.
(i) Notice of the petition shall be in Form No. II given in the schedule to these rules for settlement of issue and
shall require the respondent and the co-respondent, if one is named in the petition to enter appearance in
person or by pleader, and file a written statement not less than seven days before the day fixed in the
notice.
(ii) The notice together with a copy of the petition shall be served on the respondent and the co-respondent, if
named, in the manner prescribed in Order V of the Code of Civil Procedure not less than 21 days before
the day appointed therein:

Provided that the court may dispense with such service altogether in case it seems necessary or expedient so to
do.

16. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce on the ground that
the wife is living in adultery or judicial separation on the ground that the wife has, since the solemnisation of the
marriage, been guilty of adultery, the petitioner shall make the alleged adulterer, if alive a co-respondent in the said
petition, unless he is excused from so doing by an order of the court which may be made on any or more of the
following grounds which shall be supported by an affidavit in respect of the relevant facts:—
(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom
the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for its
discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the court may deem fit to consider.

17. Respondent in wife’s petition.—Unless otherwise directed, where a wife’s petition alleges adultery with a woman
named and contains a claim for costs against her, she shall be made a respondent in the case.

18. Intervention.—
(i) Any person other than a party to the proceeding including person charged with adultery or sodomy not
made a respondent or co-respondent, shall be entitled to appear and intervene in the proceedings. The
application shall be supported by an affidavit setting forth the facts on the basis on which the intervention is
sought for.
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(ii) Notice for the application together with a copy of the affidavit shall be served on all parties who shall be at
liberty to the counter affidavit.
(iii) If, after hearing all the parties, the court grants leave, the intervenor may take part in the trial subject to
such terms and conditions as the court may deem fit to impose.
(iv) If the court is satisfied that the intervention was made without sufficient cause it may order the applicant to
pay the whole or part of the costs occasioned the intervention. If on the other hand, the court finds that the
intervention is justified it may pass suitable orders for payment to the applicant the whole or any part of the
costs of intervention.
(v) A person to whom leave to intervene has been granted may file in the court an answer to the petition or
written statement containing the charges, or allegation against such intervener.

19. Written statements in answer to petition filed by respondent.—The respondents may, and if so required by the
court, shall, present a written statement in answer to the petition and the provisions of Order VIII of the Code of Civil
Procedure shall apply mutatis mutandis to such written statements. In particular if in any proceedings for divorce the
respondent opposes the relief sought in the petition on the ground of the petitioner’s adultery, cruelty, or desertion,
the written statement shall state the particulars of such adultery, cruelty or desertion.

20. Damages.—Any husband may, in petition for divorce, claim damages from the co-respondent on the ground of
his having committed adultery with the wife of such petitioner—
(i) Such petition shall be served on the said co-respondent and the wife unless the court dispenses with such
service in accordance with the provisions of rule 15.
(ii) The damages to be recovered on any such petition shall be ascertained by the court although the
respondent or either of them may not appear.

After the decision has been given, the court may direct in what manner the damages shall be paid or applied.

21. Costs.—The court may direct that the whole or any part of the costs of the petition for nullity of marriage or for
divorce incurred by any of the parties to such petitions may be paid by any of the other parties thereto:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of adultery living apart from the husband and leading the life of a
prostitute, or
(ii) if the co-respondent had not, at the time of adultery, reasons to believe the respondent to be a married
woman.

The award of costs shall be in the discretion of the court and the court shall make an order of the same while
passing the decree.

22. Unless otherwise directed by the court, the costs of the petition under the Act shall be cost as taxed in suit
under the Indian Divorce Act (VI of 1869).

23. Appeal under the Act shall be governed by the relevant rules in the Patna High Court General Rules and
Circular Orders, Civil or by the Rules of the High Court at Patna, as the case may be, so far as they may be
applicable.

SCHEDULE

FORM NO. I

(Rule 5)

IN THE COURT OF THE DISTRICT JUDGE

Original Petition Noof 20

In the matter of the Hindu Marriage Act, 1955

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APPENDIX I

A.B. ............................................................................................................................... Petitioner.

C.D. ............................................................................................................................... Respondent.

E.F. ............................................................................................................................... Co-respondent.

Petition under section......................of.................the Hindu Marriage Act, 1955, and rule.................... of the rules
under Hindu Marriage Act.

FORM NO. II

(Rule 5)

IN THE COURT OF THE DISTRICT JUDGE

Original Petition no....................of 20........

In the matter of the Hindu Marriage Act, 1955

A.B. ............................................................................................................................... Petitioner.

C.D. ............................................................................................................................... Respondent.

E.F. ............................................................................................................................... Co-respondent.

Petition presented on............................

Petition filed on....................................

Whereas on the...............day of..................20......., the above-named petitioner filed a petition against the
respondent for.............. (specify the relief). You are hereby required to appear in the Court on the............day
of....................20....... at 10.30 a.m. (6.30 a.m. in the case of morning sitting) in person or by pleader duly instructed
and able to answer all material questions relating to the above proceeding.

Also take notice that in default of your appearance on the aforesaid day the issues will be settled and the petition
heard and determined in your absence. You shall also bring with you or send by your pleader any documents on
which you intend to rely in support of your defence.

You are required to file a written statement in Court on or before the.............day of .................20.......

Given under my hand and the seal of the Court...............……...this day of.................20........

District Judge

Note.—A copy of the petition accompanies this notice.

16. PUNJAB HIGH COURT

(1) HINDU MARRIAGE (PUNJAB) RULES, 19561

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955), the Punjab
High Court has made the following rules:—

1. Short title.—These rules, may be called the Hindu Marriage (Punjab) Rules, 1956.

2. Definitions.—In these rules, unless there is anything repugnant in the subject or context,—
(a) ‘Act’ means the Hindu Marriage Act, 1955 (25 of 1955).
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APPENDIX I

(b) ‘Form’ means a form appended to these rules.

(c) ‘Section’ and ‘sub-section’ means, respectively, section and sub-section of the Act.
(d) All other terms and expressions used herein but not defined shall have the meaning respectively assigned
to them in the Act.

3. Petition to be accompanied by extract or affidavit regarding marriage.—A petition under the Act shall be
accompanied by a certified extract from the Hindu Marriage Register maintained under section 8 of the Act and in
the absence of the same an affidavit, to the effect that petitioner was married to the respondent (unless the
certificate or affidavit is already on the record).

4. Contents of the petition.—All petitions under sections 9 to 13 shall state—

(i) the date and place of the marriage;
(ii) whether the petitioner and the respondent were Hindus by religion at the time of the marriage and whether
they continue to be so up to the date of filing the petition;
(iii) the status and place of residence of the parties to the marriage before the marriage and at the time of filing
the petition;
(iv) the principal permanent address where the parties have cohabited including the address where they last
resided together;
(v) whether there have been previous proceedings with regard to marriage by or on behalf of any party, if so,
the result of those proceedings;
(vi) whether any children were born of the marriage and if so, the date and place of birth and the name and sex
of each child separately, and whether alive or dead;
(vii) the matrimonial offences charged (set in separate paragraphs with the times and places of their alleged
commission).

5.Petition to be accompanied by affidavit to show that there is no collusion or connivance.—A petition for
divorce on grounds of adultery shall state that the petitioner has not in any manner been accessory to or connived
at or condoned the adultery.

6. Full facts of adultery to be given.—In any petition for divorce the petitioner shall be required to give particular
as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents as the
case may be.

7.Affidavit of non-cohabitation for divorce after decree of judicial separation.—A petition for divorce after the
passing of a decree for judicial separation shall be accompanied by an affidavit made by the petitioner to the effect
that he or she has not resumed cohabitation for a period of two years or upwards after the passing of a decree for
judicial separation.

8. Presentation of petition.—Every petition or application under the Act shall be presented to the court in person
or through an advocate or a recognised agent.

9.Notice to respondent.—
(1) A notice, of every petition or application under the Act shall be issued to the respondent in Form A to
appear and answer the claim on a day to be therein specified:

Provided that no such notice would be necessary when the respondent appears at the time of the presentation
of the petition or application.
(2) Copies of respondent.—Every such notice shall be accompanied by a copy of the petition or application.
The required number of copies of the petition or application shall be supplied by the petitioner or applicant
at the time of its presentation in court.

10. Petition on ground of adultery: Adulterer to be impleaded as party.—Upon a petition presented by a

husband for divorce on the ground of adultery, the petitioner shall make the alleged adulterer a co-respondent. The
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APPENDIX I

petitioner may, however, be excused from so doing on any of the following grounds with the permission of the
Court:—
(a) that the respondent is leading the life of a prostitute and that the petitioner knows of no particular person
with whom the adultery has been committed;
(b) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to
discover the same; and
(c) that the alleged adulterer is dead.

11. True copy of pleadings to be served on adulterers.—Where a husband is charged with adultery with a
named person a true copy of the pleadings containing such charge shall unless the court for good cause shown
otherwise directs, to be served upon the person with whom adultery is alleged to have been committed,
accompanied by a notice that such person is entitled, within the time therein specified, to apply for leave to
intervene in the cause.

12. Pleading of respondents and intervener to be verified.—

(a) A respondent or a co-respondent or a woman to whom leave to intervene has been granted under these
rules, may file in the court an answer to the petition.
(b) Any answer which contains matters other than a simple denial of the facts stated in the petition shall be
verified in respect of such matters by the respondent, or co-respondent, as the case may be in the manner
required by the rules for the verification of petitions and when the respondent is husband or wife of the
petitioner, the answer shall contain declaration that there is not any collusion or connivance between the
parties.
(c) Where the answer of a husband alleges adultery and prays for relief a certified copy thereof shall be
served upon the alleged adulterer together with a notice to appear in like manner as on a petition. When in
such a case no relief is claimed, the alleged adulterer shall not be made a co-respondent but a certified
copy of the answer shall be served upon him together with a notice that he is entitled within the time
therein specified to apply for leave to intervene in the proceedings and upon such application, he may be
allowed to intervene, subject to such direction, as may then be given by the court.

13.Permission of court necessary to intervene.—Any person, not a party to the proceedings, may be permitted
by the court to intervene and show that the allegations made by the petitioner are contrary to facts and that the
proceedings are collusive. Such permission shall not be granted unless the person seeking to intervene files an
affidavit in support of his petition and satisfies the court that it is proper to give such permission. Such person shall,
when he first appears in court file a proceeding stating his or her address for service.

14.Adulterer to pay whole or part of costs.—Whenever in any petition presented by a husband, the alleged
adulterer has been made a co-respondent and the adultery has been established, the court may order the co-
respondent to pay the whole or any part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petition’s costs—
(i) if the respondent was, at the time of adultery living apart from her husband and was leading the life of a
prostitute, or
(ii) if the co-respondent had not, at the time to adultery, reason to believe the respondent to be a married
woman.

15. Register to be maintained.—Every court shall maintain a register in which the details regarding petitions shall
be entered and it shall conform to Civil Register No. III maintained for divorce and matrimonial cases.

16.Forms.—The forms given in the Appendix to these rules may, with necessary modifications, be used in the
proceedings under the Act.

APPENDIX

FORM A

(Rule 5)
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APPENDIX I

In the District Court at .............................................

MATRIMONIAL AND DIVORCE JURISDICTION

Case No ............................... date of Institution ..............................

.................................................................................................................................................. Petitioner

versus

.............................................................................................................................................. Respondent

......................................................................................................................................... Co-respondent

To:

WHEREAS ....................... has presented a petition/application against you for ....................... under section
....................... of the Hindu Marriage Act, 1955 (25 of 1955). A copy of the said petition/application is sent herewith,
you are hereby summoned to appear in this Court on the ....................... at 10 o’clock in the forenoon to answer the
said petition/application, either in person or by recognised agent duly instructed and able to answer all material
questions relating to case, or who shall be accompanied by some other person able to answer all such questions or
by an Advocate or pleader similarly instructed or accompanied and you are directed to produce on that day all
documents upon which you intend to rely in support of your defence. Your may file an answer to the
petition/application on the date mentioned above.

You are further informed that in default of your appearance on the day and in the manner above mentioned the
petition/application will be heard and determined in your absence.

Give under my hand and the seal of this Court, this ................ day of ................ 20 .......................

.......................

District Judge

at ...................

Dated .......................

NOTE.—Hours of attendance at the Court are from 10 a.m. till 4 p.m.

FORM B

In the District Court

................................................................................................................................................. Petitioner

versus

............................................................................................................................................. Respondent

Petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (25 of 1955)

The petition prays as follows:

1. A marriage was solemnised between the parties on .................. at .................. A extract from the Hindu
Marriage Register/An affidavit duly attested, is filed herewith.
2. The status and place of residence of the parties to the marriage, before the marriage and at the time of
filing the petition were as follows:
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APPENDIX I

Husband Wife

Status Age Place of residence status Age Place of residence

(i) Before marriage

(ii) At the time of filing

the petition
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APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated ..........
4. The respondent has, without reasonable excuse, withdrawn from the society of petitioner with effect from
....................... (cause of the estrangement, as known to the petitioner may be stated).
5. The petition is not presented in collusion with the respondent.
6. There has not been any unnecessary or improper delay in filing this petition.
7. There is no other legal ground why relief should not be granted.
8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnised/The husband and wife reside/The husband and wife last resided together
within the local limits of the ordinary original civil jurisdiction of this Court.
10. The petitioner prays for a decree for restitution of conjugal rights against the respondent.

Sd/-

.......................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to ....................... of the petition are true to
the best of the petitioner’s information and belief.

Verified at ...................... (Place).

Date .................................

......................

Petitioner

FORM C

In the District Court as .........................................................

.................................................................................................................................................. Petitioner
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APPENDIX I

versus

.............................................................................................................................................. Respondent

......................................................................................................................................... Co-respondent

Petition for judicial separation under section 10 of the Hindu Marriage Act, 1955 (25 of 1955)

The petitioner prays as follows:

1. A marriage was solemnised between the parties on ....................... at .... ................... An extract from the
Hindu Marriage Register/An affidavit, duly attested, is filed herewith.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
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APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
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APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated ............
4. The respondent has ....................... (Any one or more of the grounds specified in section 10 may be
pleaded here. The matrimonial offences charged should be set in separate paragraphs, with times and
places of their alleged commission. The facts on which the claim to relief is founded should be stated as
distinctly as the nature of the case permits. If adultery is pleaded, the petitioner should give particulars, as
nearly as he can, of the acts of adultery alleged to have been committed).
5. Where the ground of petition is the ground specified in clause (f) of section 10. The petitioner has not in
any manner been accessory to or connived at or condoned the act(s) complained of.
6. (Where the ground of petition is cruelty) the petitioner has not in any manner condoned the cruelty.
7. The petition is not presented in collusion with the respondent.
8. There has not been any unnecessary or improper delay in filing this petition.
9. There is no other legal ground why the relief should not be granted.
10. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

11. The marriage was solemnised/1the husband and wife reside/1the husband and wife last resided together
within the local limits of the ordinary originally civil jurisdiction of this Court.
12. The petitioner, therefore, prays for a decree for judicial separation against the respondent.

........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to ........................ of the petition are true to
the best of the petitioner’s information and belief.

Verified at ........................ (Place).

Date ...................................

Sd/-.......................

Petitioner

FORM D
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APPENDIX I

In the District Court at ...............................................................

................................................................................................................................................. Petitioner

versus

............................................................................................................................................. Respondent

Petition for a decree of nullity of marriage under section 11 of the Hindu Marriage Act, 1955 (25 of 1955)

The petitioner prays as follows:

1. A marriage was solemnised between the parties after the commencement of the Hindu Marriage Act on
.................. at ............... An extract from the Hindu Marriage Register/Affidavit is filed herewith.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
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APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
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APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated) ...........
4. The respondent had a spouse living at the time of the marriage.

OR

The parties are within the degrees of prohibited relationship and there is no custom or usage governing each of
them which permits of a marriage between the two.

OR

The parties are sapindas of each other and there is no custom or usage governing each of them which permits of a
marriage between the two.

(One or more of the above grounds may be pleaded, and portions, which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraphs with times and places of their alleged
commission).
5. The petition is not presented in collusion with the respondent.
6. There has not been any unnecessary or improper delay in filing the petition.
7. There is no other legal ground why the relief should not be granted.
8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and location Result
proceedings with of the case of the court
section of the Act

(i)

(ii)

(iii)

(iv)

9. The marriage was solemnised/the husband and wife reside/the husband and wife last resided within the
local limits of the ordinary civil jurisdiction of this Court.
10. The petitioner, therefore, prays, that the marriage solemnised between the parties being null and void may
be so declared by the Court by a decree of nullity.

Sd/- .......................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to ........................ of the petition are true to
the best of the petitioner’s information and belief.
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APPENDIX I

Verified at........................(Place). Sd/-

Dated................................... ......................

Petitioner

FORM E

In the District Court at ........................

................................................................................................................................................. Petitioner

versus

............................................................................................................................................. Respondent

Petition for the annulment of a marriage under section 12 of the Hindu Marriage Act, 1955 (25 of 1955)

The petitioner prays as follows:

1. A marriage was solemnised between the parties after the commencement of the Hindu Marriage Act on
................. at ................... An extract from the Hindu Marriage Register/An affidavit, duly attested, is filed
herewith.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
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APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
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APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated.].......
4. The respondent was impotent at the time of the marriage and continued to be so until the institution of
these proceedings.

OR

The respondent was an idiot/lunatic at the time of marriage.

OR

The consent of the petitioner/guardian of petitioner was obtained by force/fraud and the petition is presented within
one year after the force had ceased to operate/fraud had been discovered and the petitioner has not discovered
with his/her full consent, lived with the other party to the marriage as husband/wife after the force has ceased to
operate/fraud had been discovered.

OR

The respondent was at the time of the marriage pregnant by some person other than the petitioner and the
petitioner was at the time of marriage ignorant of this fact and the proceedings have been instituted within one year
from the date of the marriage and marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of respondent’s pregnancy by some person other than the petitioner.

(One or more of the above grounds may be pleaded and the portions which are not applicable should be scored
out. Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits.
The matrimonial offences charged should be set in separate paragraphs with times and places of their alleged
commission).
5. The petition is not instituted in collusion with the respondent.
6. There has not been any unnecessary or improper delay in filing this petition.
7. There is no other legal ground why the relief should not be granted.
8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnised/the parties reside/the parties last resided together within the local limits of
the ordinary original civil jurisdiction of this Court.
10. The petitioner, therefore, prays that the marriage solemnised between the parties being null and void may
be so declared by the Court by a decree of nullity.
 Page 188 of 245
APPENDIX I

.......................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to........................of the petition are true to the
best of the petitioner’s information and belief.

Verified....................... (Place) .........................

Dated....................................... Petitioner

Form F

In the District Court at........................

..................................................................................................................................................Petitioner

versus

..............................................................................................................................................Respondent

.........................................................................................................................................Co-respondent

Petition for dissolution of marriage under section 13 of the Hindu Marriage Act, 1955 (25 of 1955)

The petitioner prays as follows:

1. A marriage was solemnised between the parties after the commencement of the Hindu Marriage Act
on..................at ........................An extract from the Hindu Marriage Register/An affidavit, duly attested, is
filed herewith.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
 Page 189 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 190 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated]..........
4. The respondent........................

[One or more of the grounds specified in section 13 may be pleaded here. The facts on which the claim to relief is
founded should be stated as distinctly as the nature of the case permits. If adultery is pleaded the petitioner should
give particulars as nearly as he can, of the acts of adultery alleged to have been committed. The matrimonial
offences charged should be set in separate paragraphs, with times and places of their alleged commission. If the
ground specified in clause (viii) of section 13(1) is pleaded the petition should be accompanied by an affidavit of the
petitioner to the effect that he or she has not resumed co-habitation for a period of two years or upwards of the
passing of the decree for judicial separation.]
5. [Where the ground of petition is the ground specified in clause (i) of sub-section (1) of section 13.] The
petitioner has not in any manner been accessory to or connived at or condoned the act(s) complained of.
6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.
7. The petition is not presented in collusion with the respondent.
8. There has not been any unnecessary or improper delay in filing this petition.
9. There is no other legal ground why the relief should not be granted.
10. There has not been any previous proceeding with regard to the marriage by or on behalf of any party—

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

11. The marriage was solemnised/The husband and wife reside/The husband and wife last resided together
within the local limits of the ordinary civil jurisdiction of this Court.
12. The petitioner, therefore, prays that the marriage between the petitioner and the respondent may be
dissolved by a decree of divorce.

Sd/-

........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to........................of the petition are true to the
best of the petitioner’s information and belief.

Verified at........................(Place). Sd/-

 Page 191 of 245
APPENDIX I

Dated............................................ ..................

Petitioner

FORM G

In the District Court at........................

.................................................................................................................................................Applicant

versus

.............................................................................................................................................Respondent

Application under section 14 of the Hindu Marriage Act, 1955 (25 of 1955), praying that a decree ofdivorce may be
allowed to be presented before three years1 have elapsed since the date of marriage.

The applicant prays as follows:

1. A marriage was solemnised between the parties after the commencement of the Hindu Marriage Act
on........................ at ........................ An extract from the Hindu Marriage register/An affidavit, duly attested,
is filed herewith.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:—
 Page 192 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 193 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether alive or dead should also be stated.]
4. This is a case of exceptional hardship to the petitioner/exceptional depravity on the part of the respondent
as........................ (state as distinctly as the nature of the case permits the particulars about the exceptional
hardship or depravity, as the case may be).
5. The marriage was solemnised/the parties reside/the parties last resided together, within the ordinary
original civil jurisdiction of this Court.
6. The applicant, therefore, prays that he/she may be allowed to present a petition for divorce before three
years1 have elapsed since the date of marriage.

Sd/-..............

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to.........................of the petition are true to the
best of the petitioner’s information and belief.

Verified at.........................(Place).

Dated.................................

Sd/- ..................

Applicant

FORM H

In the district Court at.........................

..........................................................................................................Applicant

versus

..........................................................................................................respondent

Application for maintenance pendente lite and for expenses of proceedings under section 24 of the Hindu Marriage
Act, 1955 (25 of 1955) the applicant prays as follows:

1. A proceeding for........................under section........................of the Hindu Marriage Act, 1955, is pending

between the parties in this Court. The particulars are as follows:

Number and year of the Names of parties Next date of hearing Remarks
case

2. The applicant owns no other moveable or immovable property and has no other source of income
except........................ (give full particulars of the petitioner’s property and income).
3. The applicant has no independent income sufficient for his/her support and the necessary expenses of the
proceeding.
4. The respondent has sources of income and owns property mentioned below—...................... (give full
particulars about respondent’s income and property).
 Page 194 of 245
APPENDIX I

5. The petitioner prays that the respondent should be ordered to pay a sum of Rs........................ as the
petitioner’s expenses of the proceeding and a sum of Rs........................monthly for petitioner’s
maintenance during the proceeding.

Sd/- ........................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to........................of the petition are true to the
best of the petitioner’s information and belief.

Verified at.........................(Place). Sd/-........................

Dated...................................... Applicant

FORM I

In the District Court ........................

..............................................................................................................Applicant

versus

..............................................................................................................Respondent

Application for permanent alimony and maintenance under section 25 of the Hindu Marriage Act, 1955 (25 of 1955).

The applicant prays as follows:

1. A proceeding between the parties for.......................under section ....................... of the Hindu Marriage Act,
1955, is pending is/was decided by this Court, particulars of which are given below:

Number and year of the Names of parties Next date of hearing Remarks
case

2. The applicant owns no other moveable or immovable property and has no other source of income
except......................... (give full particulars of the petitioner’s property and income).
3. The respondent has sources of income and owns property mentioned below—......................... (give full
particulars about respondent’s income and property).
4. The applicant has not remarried and has not been guilty of any conduct which would disentitle him/her to
receive maintenance from the respondent.
5. The petitioner prays that having regard to the incomes of the parties and their conduct, the respondent may
be ordered to pay to the petitioner for his/her maintenance and support until death or remarriage a
gross/monthly/periodical sum of Rs........................ and (score out portion not necessary) such payment
may be secured by a charge on the immovable property of the respondent.

Sd/-........................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to........................of the petition are true to the
best of the petitioner’s information and belief.
 Page 195 of 245
APPENDIX I

Verified at........................ (Place).

Dated................................... Sd/-.........................Applicant

(2) THE SPECIAL MARRIAGE (PUNJAB HIGH COURT) RULES, 19561

In exercise of the powers conferred by section 41 of the Special Marriage Act, 1954 (43 of 1954), the Punjab High
Court has made the following rules:—

1. Short title.— These rules may be called the special Marriage (Punjab High Court) rules, 1956.

2. Definitions.—In these rules, unless there is anything repugnant in the subject or context,—
(a) ‘Act’ means the special Marriage Act, 1954 (43 of 1954).
(b) ‘Form’ means a form prescribed in the Act, or appended to these rules.
(c) ‘section’, ‘sub-section’ and ‘chapter’ means, respectively, section, sub-section and Chapter of the Act.
(d) All other terms and expressions used herein but not defined shall have the meaning assigned to them in
the Act.

3. Petition to be accompanied by certificate of marriage.—A petition under the Act shall be accompanied by a
certified copy of the certificate of marriage (unless the certificate is already on the record).

4.Contents of the petition.—

(1) A petition under Chapter V or Chapter VI shall state—
(i) the date and place of marriage;
(ii) the status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition;
(iii) the principal permanent addresses where the parties have cohabited, including the address where they
last resided together;
(iv) whether there have been previous proceedings with regard to marriage by or on behalf of any party; if
so, the result of those proceedings;
(v) whether any children were born of the marriage and, if so, the date and place of birth and the name
and sex of each child separately; and whether alive or dead;
(vi) the matrimonial offences charged set in separate paragraphs with the times and places of their alleged
commission.
(2) Presentation of petition.—Every petition under Chapters V and VI shall be presented to the court in
person or through an advocate or a pleader or a recognised agent.

5. Notice to respondent.—
(1) A notice of every petition or application under the Act shall be issued to the respondent in Form A to
appear and answer the claim on a day to be therein specified:

Provided that no such notice would be necessary when the respondent appears at the time of the presentation
of the petition or application.
(2) Copies for respondent.—Every such notice shall be accompanied by a copy of the petition or application.
The required number of copies of the petition or application shall be supplied by the petitioner or applicant
at the time of its presentation in court.

6. Petition on ground of adultery. Adulterer to be impleaded as party.—upon a petition presented by a

husband for divorce on the ground of adultery, the petitioner shall make the alleged adulterer a co-respondent. The
 Page 196 of 245
APPENDIX I

petitioner may, however, be excused from so doing on any of the following grounds with the permission of the
court:—
(a) that the respondent is leading the life of a prostitute and that the petitioner knows of no particular person
with whom the adultery has been committed;
(b) that the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to
discover the same;
(c) that the alleged adulterer is dead.

7. Full acts of adultery to be given.—In any petition for divorce the petitioner shall be required to give particulars
as nearly as he can of the acts of adultery alleged to have been committed by the respondent or respondents, as
the case may be.

8. True copy of pleadings to be served on adulterers.—Where a husband is charged with adultery with a named
person, a true copy of the pleadings containing such charge shall, unless the court for good cause shown otherwise
directs, be served upon the person with whom adultery is alleged to have been committed, accompanied by a
notice that such person is entitled, within the time therein specified, to apply for leave to intervene in the cause.

9. Pleadings of respondents and intervener to be verified.—

(a) A respondent or a co-respondent or a woman to whom leave to intervene has been granted under these
rules, may file in the court an answer to the petition.
(b) Any answer which contains matters other than a simple denial of the facts stated in the petition, shall be
verified in respect of such matters by the respondent or co-respondent, as the case may be, in the manner
required by the rules for the verification of petitions and when the respondent is husband or wife of the
petitioner, the answer shall contain a declaration that there is not any collusion or connivance between the
parties.
(c) Where the answer of a husband alleges adultery and prays for relief, a certified copy thereof shall be
served upon the alleged adulterer, together with a notice to appear in like manner as on a petition. When in
such a case no relief is claimed, the alleged adulterer shall not be made a co-respondent but a certified
copy of the answer shall be served upon him together with a notice that he is entitled within the time
therein specified to apply for leave to intervene in the proceedings and upon such application, he may be
allowed to intervene, subject to such direction, as may then be given by the court.

10. Affidavit of non-co-habitation for divorce after decree of judicial separation.—A petition for divorce, after
the passing of a decree for judicial separation, shall be accompanied by an affidavit made by the petitioner to the
effect that he or she has not resumed co-habitation for a period of two years or upwards after the passing of a
decree for judicial separation.

11. Permission of court necessary to intervene.—Any person, not a party to the proceedings under sections 23,
24, 25, 27 and 28 of the Act, may be permitted by the court to intervene in those proceedings and to show that the
allegations made by the petitioner in those proceedings were contrary to facts and that those proceedings were
collusive. such permission shall not be granted, unless the person seeking to intervene puts in an affidavit in
support of his allegations, and the court holds that it is proper to give such permission. Every party or person
intervening in the case, when he first appears in court, shall file a proceeding stating his or her address for service.

12. Dismissal in default and restoration of petition.—

(a) If any petition has been dismissed in default for non-appearance or for non-prosecution of the same the
court may restore the same on a petition, presented within 60 days from the date of the order of dismissal,
if sufficient cause is shown for the restoration. But in all cases, where the petition has been dismissed in
the presence of the respondent the same shall not be restored, unless a notice is issued to the respondent.
(b) When can ex parte orders be set aside.—When ex parte proceedings have been taken in a case under
Chapters V, VI and VII of the Act, the same may be set aside on sufficient cause being shown. The petition
for setting aside the ex parte proceedings shall be made within 60 days from the date of service and where
no service has been effected from the date of knowledge. sections 5 and 12 of the Indian limitation Act
shall apply to proceedings for restoration or setting aside ex parte decree and for purposes of appeal.
 Page 197 of 245
APPENDIX I

13. Claim for damages and mode of its assessment.—In cases where damages are claimed from the adulterer
co-respondent, the ground on which such damages are founded shall be fully and clearly stated in the petition for
divorce as also the mode of its assessment.

The petitioner shall specify the amount claimed as damages from the adulterer co-respondent, and if the adultery is
proved, such damages as the court may deem proper be assessed and paid to the petitioner, although the
respondents or either of them may not appear.

14. Payment by co-respondent of the costs of petition.—Whenever in any petition presented by a husband the
alleged adulterer has been made a co-respondent and adultery has been established, the court may order the co-
respondent to pay the whole or any part of the costs of the proceedings, provided that the co-respondent shall not
be ordered to pay the petitioner’s costs—
(i) if the respondent was at the time of adultery living apart from her husband and was leading a life of a
prostitute, or
(ii) if the co-respondent had not, at the time of adultery, reason to believe the respondent to be a married
woman.

15. register to be maintained.—Every court shall maintain a register in which the details regarding petitions shall
be entered and it shall conform to Civil register no. 3 maintained for divorce and matrimonial cases.

16. Forms.—the forms given in the Appendix to these rules may, with necessary modifications, be used in the
proceedings under the Act.

APPENDIX

FORM A

(RULE 5)

NOTICE

In the district Court at ...............................................

Matrimonial and Divorce Jurisdiction

Case no ........................ Date of Institution........................

........................................................................................................................Petitioner

versus

.................................................................................................................Respondent

.................................................................................................................Co-respondent

To..........................

WHEREAS.......................... has presented a petition/application against you for........................... under

section..............................of the Special Marriage Act, 1954 (43 of 1954). (A copy of the said petition/application is
sent herewith). You are hereby summoned to appear in this Court on the.......................... at 10 o’clock in the
forenoon to answer the said petition/application, either in person or by recognised agent duly instructed and able to
answer all material questions relating to the case, or who shall be accompanied by some other person able to
answer all such questions or by an Advocate or Pleader similarly instructed or accompanied and you are directed to
produce on that day all documents upon which you intend to rely in support of your defence. You may file an
answer to the petition/application on the date mentioned above.

You are further informed that in default of your appearance on the day and in the manner above mentioned the
petition/application will be heard and determined in your absence.
 Page 198 of 245
APPENDIX I

Given under my hand and the seal of this Court, this ....................... day of.......................two thousand and
.......................

By order,

Sd/- .......................

District Judge,

at...........................

Dated...........................

Note.—Hours of attendance at the Court are from 10 a.m. till 4 p.m.

FORM B

(Rule 16)

In the district Court at.....…………………………..........................

.....…………………………......…………………………..........................Petitioner

versus

.....…………………………......…………………………..........................Respondent

Petition for the restitution of conjugal rights under section 22 of the Special Marriage Act, 1954 (43 of 1954)

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnised
under Chapter II/registered under Chapter III of the Act by the Marriage Officer
of.....………………………….... at .....…………………………....on.....………………………….... .A certified
copy of the certificate of marriage is attached with this petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:—
 Page 199 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 200 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated]............................
4. The respondent has, without reasonable excuse, withdrawn from the society of the petitioner with effect
from............................ (give below the cause of the estrangement, as known to the petitioner)
............................
5. There has not been any unnecessary or improper delay in filing this petition.
6. The petition is not presented in collusion with the respondent.
7. There is no other legal ground why the relief should not be granted.
8. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of court
section of the Act
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnised/parties reside/parties last resided together, within the local limits of the
jurisdiction of this Court.
10. The petitioner, therefore, prays for a decree for restitution of conjugal rights against the respondent.

Sd/-

…………

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to............................ of the petition are true to
the best of the petitioner’s information and belief.

Verified at........................... (Place).

Date...........................

FORM C

(Rule 16)

In the district Court at ........................

.......................................................................................................................... Petitioner

versus

.......................................................................................................................... Respondent
 Page 201 of 245
APPENDIX I

Petition for judicial separation under section 23 of the Special Marriage Act, 1954 (43 of 1954)

The petitioner prays as follows:—

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnised
under Chapter II/registered under Chapter III of the Act by the Marriage Officer of .......................... at
.......................... on .......................... A certified copy of the certificate of marriage is attached with this
petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
 Page 202 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 203 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated].............................
4. The respondent ............................. [here any one or more of the grounds specified in section 27 (other than
specified in clauses (i) and (j) of that section) and clause (b) of sub-section (1) of section 23 may be
pleaded. The matrimonial offences charged should be set in separate paragraphs, with the times and
places of their alleged commission. The facts on which the claim to relief is found should be stated as
distinctly as the nature of the case permits. If adultery is pleaded, the petitioner should give particulars, as
nearly as he can of the acts of adultery alleged to have been committed].
5. (Where the ground of petition is adultery). The petitioner has not in any manner been accessory to or
connived at or condoned the adultery.
6. (Where the ground of the petition is cruelty). The petitioner has not in any manner condoned the cruelty.
7. There has not been any unnecessary or improper delay in filing this petition.
8. The petition is not presented in collusion with the respondent.
9. There is no other legal ground why the relief should not be granted.
10. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

11. The marriage was solemnised/the husband and wife reside/the husband and wife last resided together,
within the local limits of the jurisdiction of this Court.
12. The petitioner, therefore, prays for a decree for judicial separation against the respondent.

Sd/- ........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to..............................of the petition are true to
the best of the petitioner’s information and belief.

Verified at........................ (Place) Sd/-........................

Date........................ Petitioner

FORM D

(Rule 16)

In the District Court at ..............................

 Page 204 of 245
APPENDIX I

....................................................................................................................................Petitioner

versus

.................................................................................................................................Respondent

Petition for a decree of nullity of marriage under section 24(1) of the Special Marriage Act, 1954 (43 of 1954).
(When petitioner is a party to the marriage)

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was solemnised under
Chapter II of the Act by the Marriage Officer of.......................... at ......................... on......................... A certified
copy of the certificate of marriage is attached with this petition.

2. The status and place of residence of the parties to the marriage before the marriage and at the time of filing the
petition were as follows:
 Page 205 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 206 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated]..............................
4. At the time of the marriage (i) the respondent/petitioner had a spouse living (ii) the respondent/petitioner
was an idiot or a lunatic (iii) the respondent, being the husband of the petitioner had not completed the age
of twenty-one years (iv) the respondent being the wife of the petitioner had not completed the age of
eighteen years (v) the respondent was impotent and is so on the date of the institution of the suit (vi) the
parties were within the prohibited degree of relationship.

(One or more of the above grounds may be pleaded and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraphs with the times and places of their alleged
commission).
5. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

6. There has not been any unnecessary or improper delay in filing this petition.
7. The petition is not presented in collusion with the respondent.
8. There is no other legal ground why the relief should not be granted.
9. The marriage was solemnised/parties reside/parties last resided together within the local limits of the
jurisdiction of this Court.

OR

(Where the petition is by a wife domiciled in the territories of India except the state of Jammu and Kashmir). The
petitioner is resident within the territories of India except the state of Jammu and Kashmir and has been ordinarily
resident therein for a period of three years immediately preceding the presentation of the petition and the
respondent is not resident in the said territories.

The petitioner, therefore, prays that the marriage solemnised between the parties under the Act being null and void
may be so declared by the court by a decree on nullity.

sd/- ........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to..............................of the petition are true to
the best of the petitioner’s information and belief.

Verified at ..............................(Place).
 Page 207 of 245
APPENDIX I

Dated ..............................

sd/- ..............................

Petitioner

FORM E

(rule 16)

In the District Court at ..............................

..................................................................................................................................................Petitioner

versus

Shri .............................................................................................................................Respondent No. 1

Smt. .............................................................................................................................Respondent No. 2

Petition for a decree of nullity of marriage under section 24(1) of the Special Marriage Act, 1954 (43 of 1954) (When
petitioner is not a party to the marriage).

The petitioner prays as follows:

1. A marriage between the respondents was solemnised under Chapter II of the Act by the Marriage Officer of
..............................at ........................ on ..............................A certified copy of the certificate of marriage is
attached with this petition.
2. The petitioner is related to Respondent(s) No .............................. being .............................. (state
relationship).
3. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows :
 Page 208 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 209 of 245
APPENDIX I

4. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated.]..............................
5. At the time of the marriage (i) respondent No.......................had a spouse living (ii) respondent
No.......................was an idiot or a lunatic (iii) respondent No.......................being the husband of
respondent No.......................had not completed the age of 21 years ........... (iv) respondent No ........
..................................... being the wife of respondent No ............................. had not completed the age of
eighteen years, (v) respondent No .............................. was impotent and is so on the date of institution of
the suit, (vi) respondents were within the prohibited degree of relationship.

(One or more of the above grounds may be pleaded and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraphs with the times and places of their alleged
commission).
6. There has not been any previous proceedings with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

7. There has not been any unnecessary or improper delay in filing this petition.
8. There is no other legal ground why the relief should not be granted.
9. The marriage was solemnised/the respondents reside/the respondents last resided together within the
local limits of the jurisdiction of this Court.
10. The petitioner therefore prays that the marriage solemnised under Chapter II of the Act between the
respondents being null and void may be so declared by the Court by a decree of nullity.

sd/- ..........................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to .............................of the petition are true to
the best of the petitioner’s information and belief.

Verified at ........................(Place).

Date .........................................

Sd/- .......................

Petitioner

FORM F
 Page 210 of 245
APPENDIX I

(Rule 16)

In the District Court at..........................................................

..............................................................................................................................................Petitioner

versus

..........................................................................................................................................Respondent

Petition under section 24(2) of the Special Marriage Act, 1954 (43 of 1954) for having the registration of a marriage
under Chapter III of that Act declared to be of no effect. (When the petitioner is a party to the marriage.)

The petitioner prays as follows:—

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was registered
under Chapter III of the Act by the Marriage Officer of.............................. at.........................
on..............................and it may be deemed to be a marriage solemnised under the Act by virtue of the
provisions of section 18. A certified copy of the certificate of marriage is attached with this petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:—
 Page 211 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 212 of 245
APPENDIX I

3. In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated.
4. At the time of the said registration (i) a ceremony of marriage had not been performed between the parties,
(ii) a ceremony of marriage had been performed between the parties but they had not been living together
as husband and wife ever since then, (iii) the petitioner/respondent had more than one spouse living, (iv)
the petitioner/respondent was an idiot or a lunatic, (v) the petitioner/respondent/parties had not completed
the age of twenty-one years, (vi) the parties were within the degrees of prohibited relationship and (only in
case of marriages celebrated before the commencement of the Act) there was no law, custom or usage
having the force of law governing each of the parties which permitted a marriage between them.

(One or more of the above grounds may be pleaded and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraphs with the times and places of their alleged
commission).
5. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

6. There has not been any unnecessary or improper delay in filing this petition.
7. The petition is not presented in collusion with the respondent.
8. There is no other legal ground why the relief should not be granted.
9. The marriage was solemnised or registered/parties reside/parties last resided together, within the local
limits of the jurisdiction of this Court.
10. The petitioner, therefore, prays that the registration of the said marriage under Chapter III of the Act may
be declared by the Court to be of no effect.

sd/-......................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to..............................of the petition are true to
the best of the petitioner’s information and belief.

Verified at........................ (Place) sd/-......................

Dated ....................................... Petitioner

FORM G
 Page 213 of 245
APPENDIX I

(rule 16)

In the District Court at ...............................…………………....................................

..................................................................................................................................................Petitioner

versus

Shri ..............................................................................................................................Respondent No. 1

Shrimati .......................................................................................................................Respondent No. 2

Petition under section 24(2) of the Special Marriage Act, 1954 (43 of 1954) for having the registration of marriage
under Chapter III of that Act declared to be of no effect

The petitioner prays as follows:—

1. A marriage between the respondents was registered by the Marriage Officer of .................. at
............................ on ...................... under Part III of the Act and may be deemed to be a marriage
solemnised under the Act by virtue of the provisions of section 18. A certified copy of the certificate of
marriage is attached with this petition.
2. The petitioner is related to respondent(s) No .............................. being .............................. (state
relationship).
3. The status and place of residence of the parties to the marriage, before the marriage and at the time of
filing the petition were as follows:
 Page 214 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 215 of 245
APPENDIX I

4. [In these paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated]..............................
5. At the time of the said registration (i) a ceremony of marriage had not been performed between the
respondents, (ii) a ceremony of marriage had been performed between the respondents but they had not
been living together as husband and wife ever since then, (iii) respondent No......................... had more
than one spouse living, (iv) respondent No...............................was idiot or a lunatic, (v) respondent
No..............................had not completed the age of twenty-one years, (vi) the respondents were within the
degrees of prohibited relationship and (only in case of marriages celebrated before the commencement of
the Act) there was no law, custom or usage having the force of law, governing each of the respondents
which permitted a marriage between them.

(One or more of the above grounds may be pleaded and portions which are not applicable should be scored out.
Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits. The
matrimonial offences charged should be set in separate paragraphs with the times and places of their alleged
commission).
6. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

7. There has not been any unnecessary or improper delay in filing this petition.
8. There is no other legal ground why the relief should not be granted.
9. The marriage was solemnised/the respondents reside/the respondents last resided together, within the
local limits of the jurisdiction of this court.
10. The petitioner, therefore, prays that the registration of the marriage between the respondents under
Chapter III of the Act may be declared by the court to be of no effect.

sd/-

.............................

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I to ..............................of the petition are true
to the best of the petitioner’s information and belief.

Verified at ........................(Place).

Dated.................................

sd/-..............................
 Page 216 of 245
APPENDIX I

Petitioner

FORM H

(rule 16)

In the district Court at ................................................................................................

..............................................................................................................................................Petitioner

versus

...............................................................................................................................Respondent No. 1

Petition for the annulment of a marriage under section 25 of the Special Marriage Act, 1954 (43 of 1954)

The petitioner prays as follows:

1. The petitioner is the husband/wife of the respondent. The marriage between the parties was
solemnised/registered under Chapter II/under Chapter III of the Act by the Marriage Officer of ....................
at .................... on .................... A certified copy of the certificate of marriage is attached with this petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
 Page 217 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 218 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated]..............................
4. the petitioner prays for the annulment of this marriage on the ground(s) that (i) the marriage has not been
consummated owing to the wilful refusal of the respondent to consummate it, (ii) the respondent was at the
time of the marriage pregnant by some person other than the petitioner and the petitioner was ignorant of
the fact at the time of the marriage and marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of these grounds for a decree and the
proceedings have been instituted within a year of the date of the marriage, (iii) the consent of the petitioner
to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872)
and within one year of the cessation of the coercion or the discovery of the fraud, as the case may be, the
petitioner (a) has instituted the proceedings and (b) has not with his/her free consent lived with the
respondent as husband/wife.

(One or more of the above grounds may be pleaded and the portions which are not applicable should be scored
out. Facts on which the claim to relief is founded should be stated as distinctly as the nature of the case permits.
The matrimonial offences charged should be set in separate paragraphs with the times and places of their alleged
commission.)
5. There has not been any unnecessary or improper delay in the institution of the proceedings.
6. The petition is not presented in collusion with the respondent.
7. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

8. There is no other legal ground why the relief should not be granted.
9. The marriage was solemnised/parties reside/parties last resided together, within the local limits of the
jurisdiction of this court.

OR

(Where the petition is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
petitioner is resident within the territories of India, except the State of Jammu and Kashmir and has been ordinarily
resident therein for a period of three years immediately preceding the presentation of this petition and the
respondent is not resident in the said territories.

10. The petitioner, therefore, prays that the marriage between the parties being voidable, may be annulled by the
court by a decree of nullity.

sd/-

.............................

Petitioner
 Page 219 of 245
APPENDIX I

Verification

The above-named petitioner states on solemn affirmation that Paras I to ........................ of the petition are true to
the best of the petitioner’s information and belief.

Verified at ........................ (Place).

Dated ........................

Sd/-

.............................

Petitioner

FORM I

(Rule 16)

In the District Court at ........…………………….......................................................

.................................................................................................................................................. Petitioner

versus

.............................................................................................................................................. Respondent

......................................................................................................................................... Co-respondent

Petition for divorce under section 27 of the Special Marriage Act, 1954 (43 of 1954)

The petitioner prays as follows:—

1. The petitioner is the husband/wife of the respondent. The marriage between the said parties was
solemnised under Chapter II/registered under Chapter III of the Act by the Marriage Officer of
....................... at.......................on.......................A certified copy of the certificate of marriage is attached
with this petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
 Page 220 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 221 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated.]......................
4. The respondent has ............................................................

(One or more of the grounds specified in section 27 may be pleaded here. The facts on which the claim to relief is
founded should be stated as distinctly as the nature of the case permits. If adultery is pleaded, the petitioner should
give particulars, as nearly as he can, of the acts of adultery alleged to have been committed. The matrimonial
offences charged should be set in separate paragraphs with the times and places of their alleged commission. If the
ground specified in clause (i) of section 27 is pleaded, the petition should be accompanied by an affidavit that the
petitioner has not resumed co-habitation for a period of two years or upwards after passing of the decree for judicial
separation against the respondent).
5. (Where the ground of petition is adultery). The petitioner has not in any manner been accessory to or
connived at or condoned the adultery.
6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned the cruelty.
7. The petition is not presented in collusion with the respondent.
8. There has not been any unnecessary or improper delay in instituting the proceeding.
9. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

10. (In petitions by a husband for divorce on grounds of adultery where damages are claimed against the co-
respondent). (Grounds on which the claim to damages is founded should be fully and clearly stated and the
amount claimed and the mode of assessment should be specified )..............................
11. There is no other legal ground why the relief should not be granted.
12. The marriage was solemnised/husband and wife reside/husband and wife last resided together, within the
local limits of the jurisdiction of this Court.

OR

(Where the petition is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
petitioner is resident within the territories of India except the State of Jammu and Kashmir and has been ordinarily
resident therein for a period of three years immediately preceding the presentation of this petition and the
respondent is not resident in the said territories.
13. The petitioner, therefore, prays that he may be granted a decree of divorce against the respondent, and (to
be scored out if unnecessary) may further be granted a decree for recovery of Rs....................... as
damages against the adulterer co-respondent.

sd/-

......................
 Page 222 of 245
APPENDIX I

Petitioner

Verification

The above-named petitioner states on solemn affirmation that Paras I toof the petition are true to the best of the
petitioner’s information and belief.

Verified at ...................... (Place).

Dated ......................

sd/-

......................

Petitioner

FORM J

(Rule 16)

In the District Court at ................................................

........................................................................... (Husband)

........................................................................... (Wife).

Petitioners.

Petition for divorce by mutual consent under section 28 of the Special Marriage Act, 1954 (43 of 1954)

The petitioners pray together as follows:

1. A marriage between the petitioners was solemnised under Chapter II/registered under Chapter III of the
Act by the Marriage Officer of ........... at ........... ........... on ........... A certified copy of the certificate of
marriage is attached to this petition.
2. The status and place of residence of the parties to the marriage before the marriage and at the time of
filing the petition were as follows:
 Page 223 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 224 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated]
4. The petitioners have been living separately for a period of one year or more and have not been able to live
together and the petitioners have mutually agreed that the marriage should be dissolved.
5. The consent of either party has not been obtained by force, fraud or undue influence.
6. There is no collusion between the petitioners.
7. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

8. There has not been any unnecessary or improper delay in filing this petition.
9. There is no other legal ground why the relief should not be granted.
10. The marriage was solemnised/petitioners reside/petitioners last resided together, within the local limits of
the jurisdiction of this Court.

The petitioners, therefore, pray for a decree declaring the marriage to be dissolved with effect from the date of the
decree.

sd/-

....................

(Husband)

sd/-

....................

(Wife)

Petitioners

Verification

The above-named petitioners (husband) states on solemn affirmation that Paras I to .......... of the petition are true
to the best of the petitioners’ information and belief.

Verified at....................(Place).

Dated......................................

Sd/-
 Page 225 of 245
APPENDIX I

..............................

(Husband) Petitioner

The above-named petitioner (wife) states on solemn affirmation that Paras I to of the petition are true to the best of
the petitioner’s information and belief.

Verified at .................... (Place).

Date ....................

Sd/-

....................

(Wife) Petitioner

FORM K

(Rule 16)

In the District Court at ........................................

................................................................................................................................................. Applicant

versus

................................................................................................................................................. Respondent

Application that a petition for divorce may be allowed to be presented before three years have elapsed since the
date of entering of the certificate of marriage in the Marriage Certificate Book under section 29 of the Special
Marriage Act, 1954 (43 of 1954)

The applicant prays as under:

1. The applicant is the husband/wife of the respondent. The marriage between the parties was solemnised
under Chapter II/registered under Chapter III of the Act by the Marriage Officer of .................... at
.................... on ...................., and a certificate of marriage was entered in the Marriage Certificate Book on
.................. A certified copy of the certificate of marriage is attached with this application.
2. the status and place of residence of the parties to the marriage before the marriage and at the time of filing
the application were as follows:
 Page 226 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 227 of 245
APPENDIX I

3. [In this paragraph particulars and place(s) of co-habitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact
whether the child is alive or dead should also be stated.]
4. This is a case of (i) exceptional hardship suffered by the applicant, (ii) exceptional depravity on the part of
the respondent, as ......................... (state as distinctly as the nature of the case permits the particulars
about the exceptional hardship or depravity, as the case may be. The matrimonial offences charged should
be set in separate paragraphs with the times and places of their alleged commission).
5. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

6. The marriage was solemnised/parties reside/parties last resided together, within the local limits of the
jurisdiction of this Court.

OR

(Where the application is by a wife domiciled in the territories of India except the State of Jammu and Kashmir). The
applicant is resident within the territories of India excluding the State of Jammu and Kashmir and has been
ordinarily resident therein for a period of three years immediately preceding the presentation of this application and
the respondent is not resident in the said territories.
7. The applicant, therefore, prays that he/she may be allowed to present a petition for divorce before the
expiration of three years from the date of marriage.

Sd/-

.........................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to ......................... of the application are true
to the best of the applicant’s information and belief.

Verified at ......................... (Place).

Date .........................

Sd/-

.........................

Applicant
 Page 228 of 245
APPENDIX I

FORM L

(Rule 16)

In the district Court at ........................................................

Shrimati ........................................................................................................................ Applicant;

versus

Shri ..............................................................................................................…….... Respondent.

Application for alimony pendente lite under section 36 of the Special Marriage Act, 1956 (43 of 1956)

The applicant prays as under:

1. A proceeding under Chapter V/VI of the Act is pending in this Court between the parties. (Give particulars
like section of the Act, number and title of the case, date of hearing, etc.)
2. The applicant owns no other movable or immovable property and has no other income except (Give full
particulars of the applicant’s property and income, etc.)
3. The applicant has no independent income sufficient for her support and for the necessary expenses of the
proceedings.
4. The respondent has sources of income and owns property mentioned below ........................ (Give full
particulars about respondent’s income and property, etc.)
5. The respondent may be ordered to pay a sum of Rs ....................... as the applicant’s expenses of the
proceedings and a sum of Rs ....................... monthly/weekly for applicant’s support during the
proceedings.

sd/-

shrimati

................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to ....................... of the application are true to
the best of the applicant’s information and the belief.

Verified at................(Place).

Date.....................................

Sd/-

.........................

Applicant

FORM M

(Rule 16)

In the District Court at ... .................................................

 Page 229 of 245
APPENDIX I

Shrimati ................................................. Applicant;

versus

Shri ................................................. Respondent.

Application for permanent alimony and maintenance under section 37 of the Special Marriage Act, 1954 (43 of
1954)

The applicant prays as under:

1. A proceeding under Chapter V/VI of the Act is pending in this Court between the parties. (Give particulars
like section of the Act, number and title of the case, date of hearing, etc.)
2. The applicant owns no other movable or immovable property and has no other source of income
except.........................(Give full details of applicant’s property and income, etc.)
3. The applicant has no independent income sufficient for her support and for the necessary expenses of
proceedings.
4. The respondent has sources of income and owns property mentioned below: (Give full particulars about
respondent’s income and property, etc.)
5. The respondent is able and legally bound to maintain and support the applicant in a manner benefiting his
and applicant’s social position.
6. The applicant has not conducted herself in any manner which would disentitle her from receiving
maintenance and support from the respondent and has not remarried.
7. The applicant prays that the respondent may be ordered to secure to the applicant for her maintenance
and support until her death or remarriage gross monthly/yearly sum of Rs. ...................... and (score out if
unnecessary) the said sum should be made a charge on the respondent’s property.

Sd/-

......................

Applicant

Verification

The above-named applicant states on solemn affirmation that Paras I to ...................... of the application are true to
the best of the applicant’s information and belief.

Verified at ...................... (Place).

Date ......................

Sd/-

..................

Applicant
(3) THE INDIAN DIVORCE (PUNJAB) RULES, 19561

In exercise of the powers conferred by section 62 of the Indian Divorce Act, 1869 (4 of 1869), the Punjab High
Court has made the following rules:—

1. Short title.—These rules may be called the Indian Divorce (Punjab) Rules, 1956.

2. How proceedings to be originated.—Proceedings under the Act shall be originated by filing a petition to which
shall be attached a certified copy of the certificate of the marriage.
 Page 230 of 245
APPENDIX I

3. Title of petition.—

(a) All such petitions shall be instituted as follows:

In the Punjab High Court at .......................

District Court at .......................

Matrimonial Jurisdiction

In re: the Indian Divorce Act

A.B. ....................... Petitioner;

versus

C.D. ....................... Respondent;

E.F. .......................Co-Respondent.

Petition under section(s) of the Indian Divorce Act

(b) Contents of petition.—In the body of the petition shall be stated—

(i) the place and date of the marriage and the name, status and domicile of the wife before the marriage;
(ii) whether the petitioner or respondent professes the Christian religion at the time when the petition is
presented;
(iii) the domicile of the husband at the time when the petition is presented, and his occupation and the place or
places of residence of the parties respectively at the time of the presentation of the petitions;
(iv) the principal permanent addresses where the petitioner and respondent cohabited within the jurisdiction,
and in particular the place where they last resided together;
(v) whether there is living issue of the marriage and, if so, the names and dates of birth or ages, of such issue;
(vi) whether there have been in any Court, and if so, what previous proceedings with reference to the marriage
by or on behalf of either of the parties to the marriage, and the result of such proceedings;
(vii) the matrimonial offences charged, set out in separate paragraphs including particulars of the times and
places of their alleged commission.

4. Collusion or connivance.—In cases where the petitioner is seeking a decree of nullity of marriage or of
dissolution of marriage or of judicial separation, the petition shall further state that no collusion or connivance exists
between the petitioner and the other party to the marriage, or alleged marriage.

5. Prayer of petition.—The petition shall conclude with a prayer setting out particulars of the relief claimed,
including the amount of any claim for damages and any order for custody of children which is sought.

6. Signature of petitioner.—Every petition shall be signed by the petitioner. In the case of a minor it shall be
signed both by the minor and his or her next friend and shall be accompanied by the undertaking mentioned in
section 49 of the Act and by a petition for approval of the next friend by the court. In the case of a petition brought
under section 48 of the Act it shall be signed by the person bringing the suit.

7. Verification of petition.—Pursuant to section 47 of the Act every petition shall be verified in manner provided by
Order VI, Rule 15, Code of Civil Procedure.

8. Alleged adulterers to be co-respondent.—In every husband’s petition for dissolution of marriage on the ground
of adultery the alleged adulterers shall be made co-respondents in the suit unless the Judge shall otherwise direct
by order on a petition, supported by affidavit, pleading one or more of the grounds enumerated in section 11 of the
Act.
 Page 231 of 245
APPENDIX I

9. Respondent includes co-respondent.—The term “respondent” in these rules shall include a co-respondent so
far as the same is applicable.

10. Copy(ies) for respondent(s) to accompany the petition.—Every petition under the Act shall be accompanied
by true copy(ies) thereof to be supplied to respondent(s).

11. How served.—the notice of petition shall be served by the court on each respondent by delivery of a copy
thereof together with a true copy of the petition, in the manner prescribed in the Code of Civil Procedure for the
service of summons or notice on a defendant or respondent.

12. Application for substituted service.—Where personal service cannot be effected leave to substitute, some
other mode of service may be granted upon an application.

13. Service by advertisement.—When it is ordered that a notice to respondent(s) shall be advertised the form of
advertisement shall be settled by the court and a copy of the newspaper containing the advertisement shall be
placed on record.

14. Order dispensing with service of petition.—no order dispensing with service of a petition upon a party to be
affected thereby shall be made by the Court.

15. Application to stay restitution proceedings.—At any time after the commencement of proceedings for
restitution of conjugal rights the respondents may apply to the judge for an order to stay the proceedings by reason
that he or she is willing to resume or to return to cohabitation with the petitioner.

16. Answer to petition.—A respondent who has entered an appearance may within time limited by the notice file
with the Court an answer to the petition. such answer will be signed and verified in the manner required by law for
the verification of pleadings. A copy of the answer shall be delivered to the petitioner on the first hearing in the case.

17. Reply to answer.—Where in any suit for the dissolution of marriage it appears from the answer that the
respondent prays for relief under section 15 of the Act, the petitioner shall file a reply to the answer within fourteen
days from the date of filing the answer. save as aforesaid no pleading subsequent to the answer shall be delivered
except by the leave of the court.

18. No answer necessary if question of costs or custody of children.—After entering an appearance a

respondent in a suit may without filing an answer be heard in respect of any question as to costs and a respondent
who is husband or wife of the petitioner may be heard also as to custody of or access to children.

19. Evidence by affidavit.—Where any party proposes under section 51 of the Act to verify his case by affidavit
such affidavit or affidavits must be filed and copy(ies) supplied to the other party at least two days before the next
date fixed for the hearing of the case. The other party shall forthwith apply, if necessary to the court for directions as
to the dependents being produced for cross-examination at the hearing.

20. Security for costs of commission.—When an order is made for the examination of a witness on commission
or de bene esse, a wife may apply for security for her costs of the examination at the time of the order or
subsequently by petition.

21. Separate trial of issues.—A Judge may direct, and any petitioner and any party to a cause who has entered
an appearance may apply to the court for a direction, for the separate trial of any issue or issues of fact, or any
question as to the jurisdiction of the court.

22. Petition to reverse decree.—A petition to the court for reversal of a decree of judicial separation must set out
the grounds on which the petitioner relies.

23. Appearance of party praying reversal.—Before such a petition can be filed an appearance on behalf of the
party praying for a reversal of the decree of judicial separation must be entered in the suit in which the decree has
been pronounced.

24. Subsequent pleadings and proceedings.—All subsequent pleadings and proceedings arising from such
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APPENDIX I

petition and answer shall be filed and carried on in the same manner as before directed in respect of an original
petition and answer thereto so far as such directions are applicable.

25. Application to show cause.—Any person other than an officer appointed under section 17A of the Act wishing
to show cause under section 16 of the Act against making absolute a decree nisi shall apply ex parte by petition to
the court for leave to show cause. If the leave be granted such person shall within seven days from the date of the
order enter an appearance in the case in which such decree nisi has been pronounced and file affidavits setting
forth the facts upon which he relies, and shall within seven days from appearance serve certified copies of such
affidavits on the party or the counsel for the party in whose favour the decree nisi has been pronounced.

26. Affidavits in answer.—the party in the suit in whose favour the decree nisi has been pronounced may within
fourteen days after delivery of the affidavits file affidavits in answer, and the person showing cause against the
decree nisi being made absolute may within fourteen days file affidavits in reply.

27. No affidavit in rejoinder without leave.—no affidavits shall be filed in rejoinder to the affidavits in reply without
leave of the Judge and subject to any direction by the Judge the matter shall be heard and decided in the same
manner as provided in the case of an original petition.

28. Six months between decree nisiand absolute.—the decree nisi shall not be made absolute till after the expiry
of not less than six months from the day on which the nisi decree was pronounced.

29. Petition for alimony.—A wife who is petitioner in a suit, after service on the husband of the notice of petition,
and a wife who is respondent, may, after entering appearance, file a petition for alimony pending the suit under
section 30 of the Act.

30. Answer thereto.— the husband may within fourteen days or such further time as may be allowed file an
answer thereto duly verified as required by law for a pleading.

31. Hearing of summons.—such notice shall be returnable before the Judge who may make an order on the said
petition or give such directions as to further evidence as he may think fit.

32. Applications under sections 37 and 38 of the divorce act.—All applications under section 37 of the Act shall
be made to the court and shall be supported by affidavit. such applications must be brought within one month of the
completion of the decree absolute declaring a marriage to be dissolved or decree for judicial separation, as the
case may be, provided that an extension of time may be obtained from the Judge on a petition. Applications for the
appointment of a new trustee under section 38 of the Act shall be made by petition to the Court.

33. Date of payments under section 37 to commence.—Monthly or weekly sums ordered to be paid to a wife for
her maintenance and support under section 37 of the Act shall, unless otherwise ordered, commence from the date
of the decree absolute or decree for judicial separation, as the case may be.

34. Interim order.—Pending the final determination of an application under section 37 of the Act an interim order
may be made upon such terms as shall appear to the court to be just and without prejudice to the effect of the order
to be ultimately made.

35. Applications under sections 39 and 40 of the act.—Applications under sections 39 and 40 of the Act shall be
made on petition to the court. The court may make such reference for enquiry or report and to such officer as it may
think fit but no order for the settlement of a wife’s property or for the settlement of damages or for variation of
settlements shall be made except by the court.

36. Applications under sections 41 and 43 of the act.—Applications for interim orders under sections 41 and 43
of the Act shall be made by petition to the Judge and shall be supported by affidavit.

37. Applications under sections 42 and 44 of the act.—Applications under sections 42 and 44 of the Act shall be
made by petition, which shall be verified as required by law for a plaint and which together with a notice returnable
before the Judge shall be served personally upon the party or parties to be affected thereby except where leave
shall have been obtained from the Judge to dispense with such service or to substitute some other form of service.

38. Showing cause.—Any such party may show cause against the petition by filing affidavits or by filing an answer
verified as required by law in the case of a pleading.
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APPENDIX I

39. Taxation.—All bills of costs shall be referred to the deputy registrar or the superintendent in the district Court for
taxation and may be taxed by him without any special order for that purpose.

40. Procedure to obtain order for wife’s costs.—When the pleadings are complete, or by orders of a Judge
obtained on petition, at any earlier stage, a wife who is a petitioner or has filed an answer, may file her bill or bills of
costs for taxation as against her husband and the Judge may ascertain or cause to be ascertained what is a
sufficient sum of money to be paid into court or what is a sufficient security to be given by the husband to cover the
cost of the wife for and incidental to the hearing of the cause, and may thereupon, unless the husband shall prove
to the satisfaction of the Judge that wife has sufficient separate estate or shows other cause, issue an order to the
husband to pay her costs up to the setting down of the cause and to pay into court or secure the costs of hearing
within a time to be fixed by the Judge. The Judge may in his discretion order the costs up to setting down of the
cause to be paid into court.

41. Application under section 8 of the act.—An application to the High Court to remove a suit or proceeding
under section 8 of the Act shall be made an application to the Judge in open court for a rule upon the party or
parties concerned to show cause against such removal.

42. Extension of time.—the time fixed by these rules for the performance of any act may, in any particular case, be
enlarged by the orders of a Judge subject to such terms and conditions as to costs or other matters as the Judge
may think fit to impose.

43. Forms.—the forms given in the Appendix to these rules may be used in the proceedings under the Indian
divorce Act, 1869.

APPENDIX

FORM A

In the Punjab High Court at ...................................... district

(Rrule 11)

MATRIMONIAL JURISDICTION

Suit no ........ of 20

....................................................................................................... Petitioner

versus

....................................................................................................... respondent

....................................................................................................... Co-respondent

To

WHEREAS ................... has instituted a suit in this Court against you for ................... under the provisions of the
Indian divorce Act, section(s) ................... (a copy of this petition presented by the said petitioner is sent to you
herewith) and you are hereby summoned to appear in this Court on the ................... day of ................... at
................... o’clock in the forenoon to answer the said suit, either in person or by recognised agent duly instructed
and able to answer all material questions relating to the suit, or who shall be accompanied by some other person
able to answer all such questions, or by an Advocate/Pleader of this Court similarly instructed or accompanied, and
you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.
You may file an answer with this Court within ................... days of the service of this notice.

Take notice that, in default of your appearance on the day and in the manner above-mentioned the suit will be
heard and determined in your absence.

Given under my hand and the seal of the Court this ................... day of ...................
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APPENDIX I

By order,

Superintendent for district Judge/

Superintendent, (Judicial) for deputy

Registrar,

at ...................

note. —Hours of attendance at the Court are from 10 a.m. till 4 p.m. daily. sundays and holidays excepted.

FORM B

In the Punjab High Court at ...................

JUDICIAL DEPARTMENT MATRIMONIAL JURISDICTION

Reference side Case no of 20

....................................................................... Petitioner

versus

....................................................................... respondent

....................................................................... Co-respondent

Suit:—For dissolution of marriage.

To

...................................................................................................

WHEREAS a decree for dissolution of marriage between the parties above-named was made by the district Judge
of the .................... district on the .................... day of .................... 20 ...................., subject to confirmation by the
Punjab High Court for which proceedings have been forwarded under section 17 of the Indian divorce Act, 1869,
notice is hereby given to you that the day of ........................................ 20 .................... has been fixed by this Court
for the hearing of the reference; you are hereby informed that unless you move this Court, on or before the date,
either in person or by duly authorised agent fully instructed by you and able to answer all material questions relating
to the suit or who shall be accompanied by some person able to answer all such questions, or by an Advocate or
Vakil of this Court, so instructed, to confirm the said decree, the Court will not take the proceedings into
consideration.

Given under my hand and the seal of the Court, this .................... day of .................... 20 ....................

17. RAJASTHAN HIGH COURT

(1) HINDU MARRIAGE AND DIVORCE RULES, 1956

RAJASTHAN HIGH COURT RULES, 1952

In exercise of the powers conferred by sections 14 and 21 of the Hindu Marriage Act, 1955 (25 of 1955), the
Hon’ble Chief Justice and Judges are pleased to make the following rules for carrying out the purposes of the
Act:—

The following shall be added as Chapter xxxii-A after Chapter xxxii in the Rajasthan High Court Rules:—
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APPENDIX I

801A. Short title and commencement.—

(i) These rules may be called the Hindu Marriage and divorce rules, 1956.
(ii) These rules shall come into force on 1st June, 1956.

801B. Definitions.—
(i) “Act” means the Hindu Marriage Act, 1955 (25 of 1955).
(ii) “Code” means the Code of Civil Procedure, 1908.
(iii) “Court” means the court mentioned in section 3(b) of the Act.

801C. Petition.—Every petition under the Act shall be accompanied by a certified extract from the Hindu Marriage
register maintained under section 8 of the Act.

801D. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby
in the manner provided for service of summons under Order V of the Code:

Provided that the court may dispense with such service altogether in case it seems necessary or expedient so to
do.

801E. Contents of petitions.—

(i) In addition to the particulars required to be given under Order VII, rule 1 of the Code and section 20(1) of
the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following
particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband, before and after the marriage;
(c) the principal permanent address where the parties cohabited including the address they last resided
together;
(d) whether there is living any issue of the marriage and, if so, the names and dates of birth, or ages of
such issues;
(e) whether there have been in any court in India, and if so, what previous proceedings with reference to
the marriage by or on behalf of either of the parties, and the result of such proceedings;
(f) the matrimonial offence or offences charged set out in separate paragraphs with the time and place of
its or their alleged commission;
(g) property mentioned in section 27 of the Act, if any;
(h) the relief or reliefs prayed for.
(ii) In every petition presented by a husband for divorce on the ground that his wife is living in adultery with
any person or persons or for judicial separation, on the ground that his wife has committed adultery with
any person or persons, the petitioner shall state the name, occupation and place of residence of such
person or persons, so far as they can be ascertained.
(iii) In every petition, presented by a wife for divorce on the ground that her husband is living in adultery with
any woman or women or for judicial separation, on the ground that her husband has committed adultery
with any woman or women, the petitioner shall state the name, occupation and place of residence of such
woman or women, so far as they can be ascertained.

801F. Every petition for divorce on any of the grounds mentioned in clause (viii) or (ix) of sub-section (1) of section
13 of the Act shall be accompanied by a certified copy of the decree for judicial separation or for restitution of
conjugal rights as the case may be.

801G. Necessary parties.—

(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery with
any person, the petitioner shall make such person a co-respondent. The petitioner may, however, apply to
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APPENDIX I

the Court by an application supported by an affidavit for leave to dispense with the joinder of such person
as a co-respondent on any of the following grounds:—
(i) that the name of such person is unknown to the petitioner although he has made due efforts for
discovery;
(ii) that such person is dead;
(iii) that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no
person with whom adultery has been committed;
(iv) for any other sufficient reason the court may deem fit to consider.
(b) In every petition under section 13(2)(i) of the Act the petitioner shall make “the other wife” mentioned in that
section a co-respondent.
(c) In every petition under section 11 of the Act on the ground that the condition in section 5(1) is contravened,
the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

801H. Verification of petition.—statements contained in every petition shall be verified by the petitioner or some
other competent person in the manner required by the Code for the verification of plaints.

801-I. Forms of petition.—the petitions made under the Act shall, so far as possible, be made in the forms
prescribed in the schedule to the Indian divorce Act, 1869 (4 of 1869).

801J. Notice.—the Court shall issue notice to the respondent and co-respondent, if any. The notice shall be
accompanied by a copy of the petition. The notice shall require, unless the court otherwise directs, the respondent
or co-respondent to file his or her statement in court within a period of four weeks from the service of the notice and
to serve a copy thereof upon each of the other parties to the petition within the aforesaid period.

801K. Written statements in answers to petitions by respondents.—the respondent may, and if so required by
the court shall, present a written statement in answer to the petition. The provisions of Order VIII of the Code shall
apply mutatis mutandis to each written statement. In particular, if in any proceedings for divorce the respondent
opposes the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion, the written
statement shall state the particulars of such adultery, cruelty or desertion.

801L. Intervenor’s petitions.—

(1) Unless the court for good cause shown otherwise directs, where the written statement of the respondent
alleges adultery by the petitioner with the named man or woman, a certified copy of such statement or such
material portion thereof containing such allegation shall be served on such man or woman accompanied by
a notice that such person is entitled within the time therein specified to apply for leave to intervene in the
case.
(2) Costs regarding intervention.—
(a) Whenever the court finds that an intervenor had no sufficient grounds for intervening, it may order the
intervenor to pay the whole or any part of the costs occasioned by the application to intervene.
(b) When the court finds that the charge or allegation of adultery against the intervenor made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
the person making such charge or allegation against the intervenor to pay to the intervenor the whole
or any part of the costs of intervention.

801M. Answer.—A person to whom leave to intervene has been granted may file in the Court an answer to written
statement containing the charges or allegation against such intervenor.

801N. Mode of taking evidence.—the witnesses in all proceedings before the court, where their attendance can
be had, shall be examined orally and any party may offer himself or herself as a witness and shall be examined,
and may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that
the deponent in every such affidavit, shall on the application of the opposite party or by direction of the court be
 Page 237 of 245
APPENDIX I

subject to be cross-examined, by or on behalf of the opposite party orally and after such cross-examination may be
re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

801-O. Costs.—Whenever in any petition presented by a husband the alleged adulterer has been made a co-
respondent and the adultery has been established, the court may order the co-respondent to pay the whole or any
part of the costs of the proceedings:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs:—
(i) if the respondent was at the time of the adultery living apart from the husband and leading the life of a
prostitute, or
(ii) if the co-respondent had not at the time of adultery reason to believe the respondent to be a married
person.

801P. Application for alimony and maintenance.—

(a) Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody,
maintenance and education expenses of minor children, shall state the average monthly incomes of the
petitioner and the respondent, the sources of these incomes, particulars of other movable and immovable
property owned by them, the number of dependents on the petitioner and the respondent and the names
and ages of such dependents.
(b) such application shall be supported by an affidavit of the applicant.

801Q. Application for leave under section 14 of the act.—

(1) Where any party to a marriage desires to present a petition for divorce within three year of such marriage,
he or she shall obtain leave of the court under section 14 of the Act on ex parte application made to the
court in which the petition for divorce is intended to be filed.
(2) The application shall be accompanied by the petition intended to be filed bearing the proper court-fee
under the law and in accordance with the rules. The application shall be supported by an affidavit made by
the petitioner setting out the particulars of exceptional hardships to the petitioner or exceptional depravity
on the part of the respondent on which leave is sought.
(3) The evidence in such application may, unless the court otherwise directs, be given by affidavit.
(4) When the court grants leave, the petition shall be deemed to have been duly filed on the date of the said
order. The petitioner within a week of the date of the said order shall file sufficient number of copies of
application for leave and order of the court thereon and of the petition for divorce for service upon the
respondent in the petition.

801R. Service of copy of application for and order granting leave on the respondents and procedure after
service.—
(1) When the court grants leave under the preceding rule, a copy of the application for leave and order
granting leave shall be served on such of the respondents along with the notice of the petition for divorce.
(2)
(a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the
petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her
written statement the grounds with particulars on which the grant of leave is sought to be contested.
(b) The court may, if it so deems fit, frame, try and decide the issue as to the propriety of the leave granted
as a preliminary issue.
(c) The court may, at the instance of either party, order the attendance for examination or cross-
examination of any deponent in the application for leave under the preceding rule.

801S. Taxation of costs.—unless otherwise directed by the court, the costs of the petition under the Act shall be
costs as taxed in a suit.

801T. Orders as to costs.—the award of costs shall be within the discretion of the court.
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APPENDIX I

801U. Transmission of certified copy of the decree.—the court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the registrar of Marriages in-charge of the Hindu Marriage register.

SPECIMEN FORMS OF PETITIONS UNDER HINDU MARRIAGE ACT, 1955FORM B

In the district Court at .................................

................................. Petitioner;

versus

.................................Respondent.

Petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (25 of 1955)

The petitioner prays as follows:—

1. A marriage was solemnised between the parties at An extract from the Hindu Marriage register/An affidavit, duly
attested, is filed herewith.

2. The status and place of residence of the parties of the marriage before the marriage and at the time of filing the
petition were as follows:—
 Page 239 of 245
APPENDIX I

Husband Wife
Status Age Place of residence Status Age Place of residence
(i) Before marriage

(ii) At the time of filing

the petition
 Page 240 of 245
APPENDIX I

(Whether a party is a Hindu by religion or not is a part of his or her status).

3. (In this paragraph particulars and place(s) of cohabitation as husband and wife and the children from the
marriage, if any, may be given. The date and place of birth and name and sex of each child and the fact whether
alive or dead should also be stated.)

4. The respondent has without reasonable excuse, withdrawn from the society of the petitioner with effect from
.............. (cause of the estrangement as known to the petitioner may be started).

5. The petition is not presented in collusion with the respondent.

6. There has not been any unnecessary or improper delay in filing this petition.

7. There is no other legal ground why relief should not be granted.

8. There has not been any previous proceeding with regard to the marriage by or on behalf of any party.

OR

There have been the following previous proceedings with regard to the marriage by or on behalf of the parties:—

Sl. No. Name of parties Nature of Number and year Name and Result
proceedings with of the case location of the
section of the Act court
(i)

(ii)

(iii)

(iv)

9. The marriage was solemnized/the husband and wife reside/the husband and wife last resided together
within the local limits of the ordinary original civil jurisdiction of this Court.
10. The petitioner prays for a decree for restitution of conjugal rights against the respondent

sd/- ................

Petitioner

Verification

The abovenamed petitioner states on solemn affirmation that Paras I to true to the best of petitioner’s information
and belief.

sd/- ................

Petitioner

Verified at ...................... (Place)

Dated ......................
(2) RULES UNDER SECTION 16 OF THE INDIAN DIVORCE ACT, 1869

RAJASTHAN HIGH COURT RULES, 1952

799. Decree nisi.—A decree nisi shall not be made absolute till after expiration of a period of six months or such
 Page 241 of 245
APPENDIX I

longer period as may be specially fixed by the court at the time of the passing of the decree from the pronouncing
thereof.

800. Entering appearance of a person showing cause against decree nisibeing made absolute.—

(1) Any person other than the officer appointed under section 17A of the Indian divorce Act, 1869, wishing to show
cause against a decree nisi being made absolute may after obtaining the leave of the court enter an appearance in
the proceeding in which the said decree was pronounced, and at the same time file an affidavit setting forth the
facts upon which he relies.

(2) A certified copy of the affidavit shall thereafter be served upon the party in whose favour the said decree was
pronounced or his advocate and such party may, within a time to be fixed by the court, file an affidavit in answer.
The person showing cause against the said decree being made absolute may, within a further time to be so fixed,
file an affidavit in reply thereto.

801. Affidavit not required in the case of an officer appointed under section 17A of the divorce act.—no such
affidavit shall be required when cause is shown by the officer appointed under section 17A of the Indian divorce Act.
(3) SPECIAL MARRIAGE RULES, 1955

RAJASTHAN HIGH COURT RULES, 1952

CHAPTER XXXIVA

818A. Short title and commencement.—

(i) These rules may be called the special Marriage rules, 1955.
(ii) The rules shall come into force from the date of publication.

818B. Definitions.—
(i) ‘Act’ means the special Marriage Act, 1954 (43 of 1954).
(ii) ‘Code’ means the Code of Civil Procedure, 1908.
(iii) ‘court’ means the district Court.

818C. Petition.—Every petition made under the Act shall be accompanied by a certified copy of the certificate from
the Marriage Certificate Book about the solemnization of the marriage under the Act.

818D. Contents of petitions.—

(i) In addition to the particulars required to be given under Order VII, rule I, of the Code of Civil Procedure,
every petition for judicial separation, nullity of marriage and divorce shall contain the following
particulars:—
(a) the place and date of marriage;
(b) the name, status and domicile of the wife and husband before the marriage;
(c) the principal permanent address where the parties cohabited including the address where they last
resided together;
(d) whether there is living any issue of the marriage and if so, the names and dates of birth, or ages of
such issues;
(e) whether there have been in any court in India, and if so, what previous proceedings with reference to
the marriage by or on behalf of either of the parties and the result of such proceedings;
(f) the matrimonial offence charged set out in separate paragraphs with the time and places of their
alleged commission;
(g) the claims for damages, if any, with particulars;
(h) if the petition is one for a decree of dissolution of marriage, or of nullity or annulment of marriage or for
judicial separation it shall further state that there is no collusion or connivance between the petitioner
and the other parties to the marriage or alleged marriage;
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APPENDIX I

(i) the relief or reliefs prayed for.

(ii) In every petition presented by a husband for divorce or judicial separation, on the ground that the wife has
committed adultery with any person or persons the petitioner shall state the name, occupation and place of
residence of such person or persons so far as they can be ascertained.
(iii) In every petition presented by a wife for divorce or judicial separation, on the ground that her husband has
committed adultery with any woman or women, the petitioner shall state the name, occupation and place of
residence of such woman or women, so far as they can be ascertained.

818E. Co-respondent in husband’s petition.—In any petition presented by a husband for divorce or judicial
separation on the ground that his wife has, since the solemnization of the marriage, been guilty of adultery, the
petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing
by an order of the court which may be made on any one or more of the following grounds which shall be supported
by an affidavit in respect of the relevant facts:—
(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom
the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for
discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the court may deem fit to consider.

818F. Verification of petitions.—statements contained in every petition shall be verified by the petitioner or some
other competent person in a manner required by the Code of Civil Procedure for the time being in force for the
verification of plaints.

818G. Forms of petitions.—the petitions made under the Act, shall, so far as possible be made in the forms
prescribed in the schedule to the Indian divorce Act, 1869 (4 of 1869).

818H. Petitions on behalf of lunatics.—When a husband or a wife is a lunatic or an idiot, any petition under the
Act, other than the petition for restitution of conjugal rights, may be brought on his or her behalf, by the person
entitled to his or her custody.

818-I. Petitions by minors.—

(1) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the court;
and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in
writing to be answerable for costs such undertaking shall be filed in court, and the next friend shall
thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
(2) the next friend shall file an affidavit along with the petition which shall state the age of the minor, that the
next friend has no adverse interest to that of the minor and that the next friend is otherwise a fit and proper
person to act as such.
(3) the court may on considering the affidavit and such other material as it may require, record its approval to
the representation of the minor by the next friend or pass such other orders as it may deem fit.

818J. Notice.—the court shall issue notice to the respondent and co-respondent, if any. The notice shall also
require, unless the court otherwise directs, the respondent or co-respondent to file his or her statement in court
within a period of four weeks from the service of the notice and to serve a copy thereof upon each of the other
parties to the petition, within the aforesaid period.

818K. Service of petitions.—Every petition and notice under the Act shall be served on the party affected thereby
in a manner provided for service of summons under Order V of the Code of Civil Procedure:

Provided that the court may dispense with such service altogether in case it seems necessary or expedient so to
do.

818L. Written statements in answers to petitions by respondents.—the respondent may and, if so, required by
the court shall present a written statement in answer to the petition. The provisions of Order VIII of the Code shall
 Page 243 of 245
APPENDIX I

apply mutatis mutandis to such written statements. In particular, if in any proceedings for divorce the respondent
opposes the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion, the written
statement shall state the particulars of such adultery, cruelty or desertion as required in the case of petition under
clauses (d), (e) and (f) of sub-rule (i), rule 818d and sub-rules (ii) and (iii) of the same rule and the particulars of any
relief which he claims on the said grounds.

818M. Interveners in wife’s petition.—

(1) unless the court for good cause shown otherwise directs:—
(a) where the husband is charged with adultery a named female person a certified copy of pleading or
material portion thereof containing such charge shall be served upon the person with whom adultery is
alleged to have been committed, accompanied by a notice that such person is entitled within the time
therein specified to apply for leave to intervene in the cause;
(b) where the written statement of the respondent alleges adultery by the petitioner with a named man or
woman, as the case may be, a certified copy of such statement or such material portion thereof
containing such allegation shall be served upon such man or woman, accompanied by a notice that
such person is entitled within the time therein specified to apply for leave to intervene in the cause.
(2)
(a) Costs regarding intervention.—Whenever the court finds that an intervener has no sufficient grounds
for intervening, it may order the intervener to pay the whole or any part of the costs occasioned by the
application to intervene.
(b) Whenever the court finds that the charge or allegation of adultery against the intervener made in any
petition or written statement is baseless or not proved and that the intervention is justified, it may order
the person making such charge or allegation against the intervener to pay to the intervener the whole,
or any part of the costs of intervention.

818N. Answer.—A person to whom leave to intervene has been granted may file in the court an answer to the
petition or written statement containing the charges or allegations against such intervener.

818-O. Intervention by third party.—during the progress of the petition under Chapter V or VI of the Act, any
person suspecting that any parties to the petition are or have been acting in collusion, or the petitioner has
committed fraud or he has concealed some material facts from the court for the purpose of obtaining the decree
prayed for shall be at liberty to apply to the court stating the circumstances and facts of such collusion, fraud and
concealment as the case may be. The application shall be supported by an affidavit. When such application is filed,
the court shall give notice thereof to the parties concerned and after hearing them and taking necessary evidence
pass the necessary orders:—
(i) if the court comes to the conclusion that such collusion, fraud or concealment of material facts is proved,
then the original petition shall be dismissed and the intervening third party shall be awarded his costs from
the parties, guilty of such collusion, fraud or concealment of facts;
(ii) whenever such application is made and the court comes to the conclusion that the intervening third party
had no grounds or no sufficient grounds for intervening, it may order him to pay the whole or any part of the
costs occasioned by his intervention.

818P. Competency of husband and wife to give evidence as to cruelty or desertion or judicial separation.—
On any petition presented by a wife, praying for divorce or judicial separation by reason of her husband having
been guilty of adultery coupled with cruelty or of adultery coupled with desertion without reasonable excuse, the
husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or
desertion.

818Q. Mode of taking evidence.—the witnesses in all proceedings before the court, where their attendance can
be had, shall be examined orally, and any party may offer himself, or herself as a witness, and shall be examined
and may be cross-examined and re-examined like any other witness:

Provided that the parties shall be at liberty to verify their respective cases in whole or in part by affidavit but so that
the deponent in every such affidavit shall, on the petition of the opposite party, or by direction of the court, be
 Page 244 of 245
APPENDIX I

subject to be cross-examined by or on behalf of the opposite party orally, and after such cross-examination the
party by whom such affidavit was filed.

818R. Damages.—Any husband may, either in a petition for divorce or judicial separation, claim damages from any
person on the ground of his having committed adultery with the wife of such petitioner:—
(i) such petition shall be served on the alleged adulterer and the wife unless the court dispenses with such
service in accordance with the provision of rule 818K;
(ii) the damages to be recovered on any such petition shall be ascertained by the said court, although the
respondent or either of them may not appear. After the decision has been given, the court may direct in
what manner the damages shall be paid or applied.

818S. Costs.—Whenever in any petition presented by a husband the alleged adulterer has been made a co-
respondent and the adultery has been established, the court may order the co-respondent to pay the whole or any
part of the costs of the proceeding:

Provided that the co-respondent shall not be ordered to pay the petitioner’s costs:—
(i) if the respondent was at the time of the adultery living apart from her husband and leading the life of a
prostitute, or
(ii) if the co-respondent had not, at the time of adultery reason to believe the respondent to be a married
woman.

818T. Taxation of costs.—unless otherwise directed by the court, the costs of the petition under the Act shall be
costs as taxed in suits under the Indian divorce Act, 1869 (4 of 1869).

818U. Order as to costs.—the award of costs shall be within discretion of the court and the court shall make an
order about the same while passing the decree.

818V. Power to adjourn.—the court may from time to time adjourn the hearing of any petition under the Act, and
may require further evidence thereon if it seems fit so to do.

818W. Transmission of certified copy of the decree.—the court shall send a certified copy of every decree for
divorce or nullity or dissolution of marriage to the Marriage Officer appointed under section 3 of the Act.

1. Vide No. 250/VHC 22, dated 18th September, 1956.

2. Now clauses (i) and (ii) of section 13(1A).
* Under Government of India, Home Department (Judicial) Notification No. F. 928/27, dated 28th July, 1928, published in
the Gazette of India, dated 4th August, 1928, Part I, p. 692, the Government Advocate has been appointed under
section 17A.
1. Vide Rec. No. 422/56B-1.
1. No. HC XI-3/53/1320-R.C., published in the Assam Gazette, Pt. II-B, dated March 21, 1956, p. 763
2. See the Special Marriage (Assam) Rules, 1957, published in the Assam Gazette, Pt. II-A, dated October 30, 1957, p.
2914 & dated May 13, 1959, p. 1751.
1. High Court Notification No. P. 0102/55, dated 12th November, 1955.
1. Vide No. 262/Gaz/OSD(R) Delhi, dated 6th October, 1980.
1. Vide No. 261/Gaz/OSD(R), dated 6th October, 1980.
1. Vide No. HHC/Admn. 22(7)78, dated 10th January, 1983, published in H.P. Rajpatra, Ext. dated 5th February, 1983,
pp. 41-63.
1. Vide No. H.C. XI-3/53/1429-R.C.
1. Now one year.
1 Vide No. H.C. XI-3/53/1320-R.C., published in the Assam Gazette, Part II-B, dated 21st March, 1956, p. 763.
 Page 245 of 245
APPENDIX I

2 See the Special Marriage (Assam) Rules, 1957, published in the Assam Gazette, Pt. II-A, dated 30th October, 1957, p.
2914 and dated 13th May, 1959, p. 1751.
1 Vide Noti. No. C.2002/93, dated 30th March, 1993, published in the Gujarat Government Gazette, Extra., Pt. IV-C,
dated 24-6-1993 (w.e.f. 24-6-1993).
1 Ins. by No. 1, dated 5-4-1995.
1 Vide R.O.C. 1277-55, dated 27th March, 1956.
2 Now one year.
1 Now only one year see Marriage laws (Amendment) Act, 1976.
1 No. B1-1827/62A, dated 24th July, 1963.
* Now clause (i) of section 13(1A).
* Now in a petition for either remedy on the ground of extra-marital sex.
** Now one year.
* Now one year.
1 M.P. Rajpatra, Pt. 4(G), dated 17th May, 1975, pp. 375-77.
1 No. 8266 (Nagpur), dated 11th September, 1956.
1 All District Registrars in the Registration Department in the State within their respective jurisdictions are Marriage
Officers under the Act.
1 Noti. no. 6407-H, dated 19th October, 1955, published in the Orissa gazette, Extra., no. 298, dated 19-10-1955 (w.e.f.
19-10-1955).
1 Vide no. 221-R, dated 23rd July, 1957.
1 Vide no. 271-GENL./XXVH-19, dated 22nd November, 1956.
1 now only one year.
1 No. 272-gem 1/XXVII-12.
1 No. 291-rules/XXVII(16), dated 13th December, 1956, published in Punjab gazette, Pt. (III), dated 21st December,
1956.

End of Document
 APPENDIX II REGISTRATION OF MARRIAGE
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX II REGISTRATION OF MARRIAGE

1. ANDHRA PRADESH
THE ANDHRA PRADESH HINDU MARRIAGE REGISTRATION RULES, 19651

In exercise of the powers conferred by section 8 of the Hindu Marriage act, 1955 (Central act 25 of 1955) the
Governor of Andhra Pradesh hereby makes the following rules,—

1. These rules may be called the Andhra Pradesh Hindu Marriage Registration Rules, 1965.
2. In these rules, unless the context otherwise requires,—
(a) “Act” means the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(b) “compulsory registration area” means the area in which registration of marriages is directed by the
Government to be compulsory under sub-section (2) of section 8;
(c) “form” means a form appended to these rules;
(d) “Government” means the Government of Andhra Pradesh;
(e) “Hindu marriage” means a marriage including remarriage solemnized in accordance with the provisions
of the Act;
(f) “Hindu Marriage Register” means a Hindu Marriage Register kept in Form B;
(g) “Inspecting Officer” means any Officer authorised by the Registrar General to inspect the marriage
records;
(h) “Registrar General” means the Registrar General of Births, Deaths and Marriages appointed by the
Government under section 6(1)(b) of the Births, Deaths and Marriages Registration Act, 1886 (Central
Act 6 of 1886) or section 2(1)(b) of the Andhra Pradesh (T.A.) Registrar General of Births, Deaths and
Marriages Act, 1953 (8 of 1953);
(i) “Registrar” means a Registrar appointed for registering Hindu Marriages under the Act;
(j) “section” means a section of the Act.

3. (1) The Government may, by notification published in the Andhra Pradesh Gazette appoint as many persons as
may be necessary as Registrars for the purpose of registering the Hindu Marriages under the Act, with jurisdiction
over such area as may be specified in the notification.

(2) Every Registrar shall reside within the local limits of his jurisdiction and shall cause his name, designation and
the working hours of his office to be written in English, Telugu and in the regional language of the area and
displayed in a conspicuous part on the outer side of the building in which the office is located.

4. (1) A Hindu marriage which has been solemnized may be registered by the Registrar in the Hindu Marriage
Register which shall be maintained by him in Form B.

(2) The Hindu Marriage Register shall be a bound volume of one hundred leaves, the pages having been machine
numbered consecutively.
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APPENDIX II REGISTRATION OF MARRIAGE

5. (1) An application for the registration of a Hindu Marriage shall be in Form A and shall be signed by each party to
the marriage or by the guardian of such party and shall be presented in person before the registrar in whose
jurisdiction the marriage is solemnized or before the Registrar in whose jurisdiction either party to the marriage has
been residing for at least six months immediately preceding the date of marriage:

Provided that an application for the registration of marriage solemnized beyond the territories of India excluding the
State of Jammu and Kashmir may be presented within one month from the date on which the parties arrive in the
State of Andhra Pradesh before any Registrar in the said State of Andhra Pradesh.

(2) It shall be attested by any one of the following persons if any applicant is illiterate:—
(i) a Village Munsif;
(ii) Magistrate of any Class including an Honorary Magistrate;
(iii) a Government servant whose emoluments are not less than Rs. 50 per month;
(iv) a Government pensioner whose pension is not less than Rs. 25 per month;
(v) a member of a Zila Parishad, a Panchayat Samithi, or a Gram Panchayat;
(vi) a member of a Municipal Council or a Municipal Committee;
(vii) any person authorised to solemnize a marriage under the Special Marriage Act, 1954 (Central Act 43 of
1954);
(viii) A Medical Officer in a Government, Local Fund or Municipal employment or a private medical practitioner
holding a University diploma or degree recognised by the Government;
(ix) a member of Parliament or of the Andhra Pradesh State Legislature.

(3) It shall be presented within one month from the date of solemnisation of the marriage:

Provided that if it is not so presented within the prescribed period, the Registrar may, if satisfied with the reasons
adduced for the failure to present it within the prescribed period, condone the delay not exceeding one month:

Provided further that the Registrar General may condone the delay beyond the period of one month.

6. (1) On receipt of the application in Form A the Registrar shall, unless both the parties to the marriage and the
guardians if any, appear before him personally and are identified to his satisfaction give notice of the application to
the other party or parties and make such enquiries of summary character as he thinks fit regarding the marriage.

(2) Evidence, if any required by the Registrar shall be taken by him on oath:

Provided that the examination of pardanashin ladies who do not appear before the Registrar may be conducted
through a Hummamnee or Mama.

(3) On being satisfied about the marriage the Registrar shall enter the particulars of the marriage in his own hand in
the Hindu Marriage Register. Every entry relating to such particulars shall be signed by both the parties to the
marriage:

Provided that the Registrar may in his discretion require that one or more witnesses shall also sign in the Hindu
Marriage Register.

7. (1) When the Registrar is not satisfied about the identity of the parties or about the fact of the marriage, he shall
by an order in writing refuse to register a marriage and shall record the reasons for his decision.

(2) An appeal against such order of the Registrar shall lie to the Registrar General who may pass suitable order
after giving an opportunity to both the parties and his order shall be final.

8. (1) Every erasure or interlineation occurred in making entries in the Hindu Marriage Register shall be attested by
the Registrar, and a note of the number of erasures and interlineations in the entries shall be made at the foot of the
 Page 3 of 139
APPENDIX II REGISTRATION OF MARRIAGE

page containing the entries by the Registrar in his own hand and attested with his initials. He shall then authenticate
the entries with his signature and date.

(2) No corrections or alterations in material particulars like name, age, date or place, shall be made in the Hindu
Marriage Register without obtaining the sanction of the Registrar General.

(3) Every correction made after obtaining the required sanction under sub-rule (2) shall be made by the Registrar by
a note in the foot note, without any alteration of the original entry, and shall be signed and dated by him.

9. All applications for registration of Hindu Marriages and for copies of certified extracts from the Hindu Marriage
Register shall be serially numbered separately for each calendar year, and preserved as a permanent record.

10. Every Registrar shall cause to be maintained indices in Form C of all entries made in the Hindu Marriage
Register. Every entry in an index shall be made alphabetically with reference to the surname of the party wherever
it is given and in other cases with reference to the name of the party.

11. The Hindu Marriage Register shall at all reasonable times be open for inspection in the presence of the
Registrar by any person applying to inspect it.

12. The Registrar General may authorise any officer to be an Inspecting Officer for the purpose of inspecting the
Hindu Marriage Register and other marriage records.

13. The Inspecting Officer shall inspect the marriage records of Hindu Marriages and submit an inspection report in
duplicate to the Registrar General.

14. The Registrar General shall scrutinise the report and forward a copy thereof to the Registrar with his further
remarks, if any, added on them through the Inspecting Officer concerned.

15. (1) Every application for grant of copies of records or for an extract from the Hindu Marriage Register may be
made either in person or by post addressed to the Registrar, with the court fee stamp duly affixed and accompanied
by such number of stamps as are necessary to prepare the required copy and in the case of a request for grant of
extract from the Hindu Marriage Register, a sum of Rs. 5 being the fee.

(2) Certified extracts from the Hindu Marriage Register and certified copies of other records shall be granted under
the official seal of the Registrar on payment of the fees.

(3) In addition to the fees prescribed in sub-rule (1) the following fees shall be levied, by the Marriage Registrar:—

Schedule Fees.

Rs. P.
(i) For the registration (to be paid by the 5.00
parties to the marriage) which will be
exclusive of any other fees levied by
temple authorities for marriages in
temples

(ii) For making a search in any record

relating to (to be paid by the applicant):

(a) the current year 1.00

(b) any other year or years 1.00

for each

such year

(iii) For certified copy of any record (other 2.00

than the certified copy of an extract from
 Page 4 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Rs. P.
Hindu Marriage Register) (to be paid by
the applicant).

(iv) For registering a marriage at any place 10.00

outside the office of the Marriage
Registrar (to be appropriated by the
Marriage Registrar) (Under rule 21)

Note.—The application for a search and a certified copy should be affixed with necessary court fee labels. No
search fee shall be levied for granting a certified extract from the Hindu Marriage Register on application at the time
of registration of the marriage.

16. All fees realised shall at once be brought on account in Form D and shall be remitted into the Government
Treasury under the head of account “Miscellaneous, Social and Developmental Organisations (d) Miscellaneous (iii)
Births, Deaths and Marriages Registration fees”.

17. A receipt in Form E shall be granted for the fee paid in person under rule 15.18.(1) The following records shall
be maintained by the Registrar:—
(a) Applications made for registration of Hindu marriages or for correction thereof together with concerned
records.
(b) Hindu Marriage Register.
(c) File of application for certified extracts.
(d) Register of fees.
(e) Challans for the money remitted into the treasury.
(f) Fee Receipt Book.
(g) General correspondence.
(h) File of G.Os. and Circulars.
(i) Indices.

(2) The records referred to in clauses (a), (b), (c), (d), (e), (f), (h) and (i) of sub-rule (1) shall be preserved
permanently.

19. The Registrar General may specify any other records to be maintained by the Registrar and determine the
period of preservation of such records.

20. (1) Any Registrar who discovers any error in the form or substance of any entry in the Hindu Marriage Register
may, within one month next after the discovery of such error in the presence of the persons married and in case of
their death or absence, in the presence of two other credible witnesses, and subject to the provisions contained in
rule 8 direct the correction of the error:

Provided that where any correction was made in the absence of the persons married, the nature of such correction
shall be intimated to them by registered post with acknowledgement due at their last known address.

(2) Every correction made under this rule shall be attested by the parties or the witnesses, as the case may be, in
whose presence it is made.

21. For the registration of a marriage, the Registrar may, upon being provided with a conveyance, attend any place
outside his office provided there is an application in writing in this behalf and signed by either of the parties to the
marriage and the additional fees prescribed therefor in rule 15 is paid and the hour is not unreasonable.

APPENDIX

To
 Page 5 of 139
APPENDIX II REGISTRATION OF MARRIAGE

The Registrar, Date of receipt..............................

.............................. district

FORM A

[See rule 5(1)]

APPLICATION FOR REGISTRATION OF HINDU MARRIAGE

Sir,

We request you to register the particulars relating to our marriage solemnised

on..................................at...........................village/town/.................................taluk..............................
 Page 6 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Full names of Age at Rank of profession Permanent place of Date of birth Place with names of Date of
parties solemnisation of the residence before taluk and district at solemnisation of
marriage solemnisation of which marriage was marriage
marriage solemnized
(1) (2) (3) (4) (5) (6) (7)
 Page 7 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Information to be furnished in case of divorced persons who may marry again [See section 15]

Name in full of
 Page 8 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Father Mother Guardian if any of Address of the Date of the decree in Whether the period Remarks
the wife with guardian the court of the first of one year has
relationship [See instance elapsed from the
section 6] date noted in
column (12) to the
date of the
application [See
proviso to section
15]
(8) (9) (10) (11) (12) (13) (14)
 Page 9 of 139
APPENDIX II REGISTRATION OF MARRIAGE

We hereby declare that the particulars mentioned above are correct to the best of our knowledge and belief, that
our marriage is one to which the Hindu Marriage Act, 1955 (Central Act 25 of 1955), applies and that we have
fulfilled the conditions, laid in section 5, 6 or 15 wherever necessary.

If the wife is a minor, Station............ Signature ... Husband..............

signature of the guardian in
marriage at the time of Date with date Wife......................
marriage. Witnesses

Name: Name:

Address: Address:

Signature: Signature:

Signature of the Registrar with date

(For Official use only)

(No. ........................of the application of........................Year)

1. Date and hour of presentation.
2. Date of ...................... Registration
3. Page and volume of the Register at which the particulars of marriage have been registered.

Signature of the Registrar

FORM B

[See rule 4(1)]

THE HINDU MARRIAGE REGISTER

 Page 10 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Sl. No. Full names of Age at the time of Rank or profession Permanent place Date of birth Place with names Date of
parties solemnisation of of residence before of taluk and district solemnisation of
the marriage solemnisation of at which marriage marriage
marriage was solemnised

(1) (2) (3) (4) (5) (6) (7)

 Page 11 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Information to be furnished in case of divorced persons who may marry again [See section 15]

Name in full of
 Page 12 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Father Mother Guardian if any of Address of the Date of the decree in Whether the period Remarks
the wife with guardian the court of the first of one year has
relationship [See instance elapsed from the
section 6] date noted in
column (13) to the
date of the
application [See
proviso to section
15]
(8) (9) (10) (11) (12) (13) (14)
 Page 13 of 139
APPENDIX II REGISTRATION OF MARRIAGE

We hereby declare that the particulars mentioned above are correct to the best of our knowledge and belief, that
our marriage is one to which the Hindu Marriage Act, 1955 (Central Act 25 of 1955), applies and that we have
fulfilled the conditions laid in sections 5, 6 or 15 wherever necessary.

Signature of three witnesses, 1. Signature of Husband:

with address.
2. Wife:

3.

If the wife is a minor signature of the legal guardian in The marriage between the above parties has this
marriage at the time of marriage ......................day of ...................... 20 ........, been registered
under the Hindu Marriage Act, 1955 (Central Act 25 of 1955)
as No ......................of 20 ......................

Station:

Date:

Signature of the Registrar

FORM C

(See rule 10)

INDEX REGISTER

Name of husband or Date of solemnisation Place at which Reference to entry in Initials of the
wife of marriage solemnised the Hindu Marriage Registrar
Register
(1) (2) (3) (4) (5)

FORM D

(See rule 16)

FEES REGISTER

Date Particulars Amount Remarks

(1) (2) (3) (4)

FORM E

(See rule 17)

RECEIPT IN DUPLICATE

1. Serial No.
2. Date of receipt.
3. From whom received.
4. On what account received.
 Page 14 of 139
APPENDIX II REGISTRATION OF MARRIAGE

5. Provisions of the Act or the rules under which chargeable.

6. Amount of fees.

Signature of Registrar.

2. ASSAM
THE HINDU MARRIAGE (ASSAM) RULES, 1961

1. These rules may be called the Hindu Marriage (Assam) Rules, 1961 and they shall come into force at once.

Note.—Under section 8 of the Hindu Marriage Act, the State Government is empowered to make rules whenever it
is considered necessary within the provisions of the Act. Contravention of the rules made by the State Government
is punishable even under the Act. The question whether marriage should be registrable, whether compulsory or
otherwise, is left to the discretion of the State Government. The present rules were made as such in exercise of the
power conferred under section 8 of the Act, vide Notification No. R.G. 45/58/13, dated the 7th February, 1961.
Section 8(5) clarifies that omission to register a marriage will not effect its validity. 2. In these rules, unless the
context otherwise requires,—

(a) ‘Act’ means the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(b) ‘section’ means a section of the Act;
(c) ‘Registrar General of Births, Deaths and Marriages’ appointed under Act VI of 1886, shall be Registrar
General for the purposes of this Act;
(d) ‘District Registrars’ and ‘Sub-Registrars’ appointed under Act XVI of 1908, shall be ‘Marriage Officer’ for
the purposes of this Act;
(e) ‘Form’ means a form appended under the Schedule to these rules.

3. Every Registrar or Marriage Officer shall cause his name, designation and the working hours of his office to be
written in English and in the language or languages of the district, place or area in which he functions as such and
displayed in a conspicuous part of the building in which his office is situated.

4. (1) When a marriage is intended to be solemnized under the Act by a Marriage Officer, the parties to the intended
marriage shall give notice thereof in writing in the Form I specified in the Schedule appended to these rules to such
Officer either in person or by registered post.

(2) Where the notice is delivered in person, the fee prescribed therefor in rule 14 shall be paid in cash to the
Marriage Officer.

(3) Where the notice is sent by registered post, the fee shall be remitted by money order at the remitter’s expenses
and the receipt issued to the remitter by the post office through which the remittance is made shall be attached to
the notice.

5. (1) As soon as the notice is received, the Marriage Officer shall enter a distinctive serial number on it and he shall
attest by his signature such number and date of receipt of the notice.

(2) If the notice is in conformity with the requirements of the Act it shall be entered in the Marriage Notice Book and
copied correctly in verbatim in a Marriage Notice Register which shall be certified to be correctly copied by the
Marriage Officer. The Notice Book and the Notice Register shall be a bound volume, the pages of which are
machine-numbered consecutively with a nominal index attached.

(3) If the notice is not in conformity with the requirements of the Act, it shall be returned to the parties for
rectification and transmission within a date to be fixed for the purpose.

(4) Every item of rectification shall be attested by both the parties to the intended marriage.
 Page 15 of 139
APPENDIX II REGISTRATION OF MARRIAGE

6. The Marriage Officer shall cause the notice of the intended marriage to be published by affixing a true copy of the
notice under his seal and signature at a conspicuous part of the office.

7. Where an objection to the solemnization of an intended marriage together with fee prescribed thereof in rule 14,
has been received within 30 days from the date of publication of the notice of the marriage and recorded by the
Marriage Officer he shall, unless he rejects the objection summarily by an order in writing on the ground that the
objection is not based on contravention of any of the conditions specified in section 5, enquire into the objection on
a date to be fixed by him.

The date so fixed shall not be later than fifteen days from the date of the objection.

8. The Marriage Officer shall, at the time of recording the objection ascertain from the objector whether he has any
document on which he relies or whether he desires any witness or witnesses to be examined on his behalf. If the
objector states that he has, the Marriage Officer shall require the objector to produce the documents or the
witnesses on the day fixed for the enquiry. If the objector desires that summons shall be issued to the witnesses to
appear and give evidence or to produce any documents, the Marriage Officer shall issue such summons to the
witnesses cited, on payment of the process fee prescribed under Rule 14, and the reasonable expenses of
travelling and subsistence allowance of the witness. The enquiry relating to the objection including the production of
documents and the examination of witnesses shall be completed and the decision of the Marriage Officer arrived at
within the period of 15 days. If, within the prescribed period the documents are not produced and the witnesses do
not appear before the Marriage Officer, the Marriage Officer, shall take a decision without waiting for the production
of such documents or the appearance of such witnesses.

9. The Marriage Officer shall give notice of the date and time fixed for enquiry to the parties to the intended
marriage.

10. (1) The notice or summons to any party or witness under rule 8, shall be in Form II or Form III, as the case may
be, and shall be sent by registered post.

(2) Any witness who being so summoned intentionally fails to attend at the place and at the time or departs from the
place where he has been summoned to attend, shall be punishable under section 174 of the Indian Penal Code.

11. On the date fixed for enquiry or on any adjourned date the Marriage Officer shall record in his own hand the
evidence given in the course of the enquiry, his decision on the objection and the reasons therefor.

12. The Marriage Officer may, on application by both the parties to the marriage, solemnize the same at any place
outside his office provided the additional fee prescribed therefor in rule 14, is paid and the hour is not unreasonable.

13. The Marriage Certificate Book shall be bound volume, the pages of which are machine-numbered consecutively
with a nominal index attached. Every marriage certificate entered therein during each calendar year shall be
consecutively numbered and every authenticated copy of a certificate issued to the parties shall bear this number
and the date, month and year in which the certificate was issued.

14. The following fees shall be levied by the Marriage Officer:—

(i) For every notice of intended marriage or for application for registration of a marriage (to be paid by the
parties to the marriage)— Rs. 2;
(ii) For recording an objection (to be paid by the person making the objection)— Rs. 3;
(iii) An enquiry to be made thereupon (to be paid by the person making the objection)—Rs. 3;
(iv) For every notice and for every summons (to be paid by the person making the objection)—Re. 1;
(v) For solemnizing or registering a marriage (to be paid by the parties to the marriages)—Rs. 6;
*(vi) For solemnizing or registering a marriage outside the office of Marriage Officer (to be paid by the parties to
the marriages):—
(a) upto a distance of 5 miles from office—Rs. 5;
(b) for a distance more than 5 miles—at 25 P. per mile in addition to what has been prescribed under
clause (a);
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APPENDIX II REGISTRATION OF MARRIAGE

(vii) For a certified copy of an entry (to be paid by the applicant)—

(a) in Marriage Notice Book other than an entry relating to an objection— Re. 1;
(b) in the Marriage Certificate Book—Re. 1.
(viii) For certified copy of an entry in the Marriage Book other than a notice or of any other proceeding not
already provided for (to be paid by the applicant)—Rs. 6;
(ix) For making a search (to be paid by the applicant).
(a) if the entry is of the current year—Re. 1;
(b) if the entry related to any previous year or years—additional fee of 50 paise per year;
(x) For issue of commission (to be paid by the applicant)—Rs. 10;
(xi) For every other application which may be necessary under the Act (to be paid by the applicant)—Re. 1.

The fees prescribed above shall be paid either in person or remitted by money order to the Marriage Officer.

15. A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and
these Rules. The receipt books shall be bound volumes of one hundred leaves each with foils and counter-foils
which shall be machine-numbered consecutively (Form IV).

All money received by the Marriage Officer except the fee mentioned in entry (vi) of Rule 14 shall be remitted to the
local treasury.

16. Copies of entries in the Marriage Certificate Book shall be certified in Form V, apprehend to these rules and
shall be sent at intervals of three months to the Registrar General of Births and Deaths and Marriages, Assam.
Should no entries have been made during the preceding three months, a certificate to this effect shall be sent to the
Registrar General of Births, Deaths and Marriages, Assam.

17. The Marriage Officer shall maintain a cash book in Form VI. All fees received under the Act and the rules shall
be brought to account in the cash book every day and the Marriage Officer shall sign the same in token of his
verifying the correctness of the day’s total collection of fees.

18. The Marriage Officer shall keep in this custody the fees received by him each day, and shall credit the same on
the day following into the nearest treasury of Banks, as the case may be.

19. Notwithstanding anything contained in the Act and these rules, registration of Hindu Marriages in Assam
excepting those areas where the Indian Registration Act, 1908 does not apply, shall be optional.

FORM I

[See rule 4(1)]

NOTICE OF INTENDED MARRIAGE

To

Marriage Officer for the..........................District

We hereby give you notice that a marriage under the Hindu Marriage Act, 1955, is intended to be solemnized
between us within three calendar months from the date hereof.
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APPENDIX II REGISTRATION OF MARRIAGE

Name Condition Occupation Age Dwelling place, Permanent dwelling Length of residence
place if present
dwelling place not
permanent
A.B. Unmarried/Widower/D
ivorced

C.D. Unmarried/Widower/D
ivorced
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APPENDIX II REGISTRATION OF MARRIAGE

Witness our hands this......................day of...................20......

Sd/- .....A.B.

Sd/- .....C.D.

Form II

[See rules 8 and 10(1)]

NOTICE

Before the Marriage Officer..................(Place).

In the matter of the Hindu Marriage Act, 1955 (25 of 1955).

In the matter of intended marriage between

............................ Application to register the marriage between.

A.B

and (Give names and addresses)

C.D.

E.F. Objector.

To............................

Whereas notice of an intended marriage..................... an application for the registration of marriage between A.B.
and C.D. was received by the Marriage Officer on.................whereas E.F. has preferred certain objections (set out
overleaf) to the.............solemnisation................. of the marriage; whereas the Marriage Officer will hold an enquiry
into the matter of the said objections on................. day of....................20, at his office; you are hereby required to be
present at....................a.m./p.m. on the said day together with all documents on which you rely and any witness or
witnesses whom you may desire to be examined on your behalf.

Take notice that in default of your appearance on the aforesaid day the inquiry will be made and decided in your
absence.

Should you apprehend that your witness will not attend unless summoned by the Marriage Officer, you should apply
to the Marriage Officer for the issue of such summons sufficiently early together with the prescribed process fee and
the reasonable expenses of travelling and subsistence allowance of the witness.

Given under my hand and seal.

Station: ........................... Signature...........................

Date: :................... Marriage Officer.

Seal

Note.—Strike out whichever is not applicable.

FORM III

[See rules 8E and 10(1)]

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APPENDIX II REGISTRATION OF MARRIAGE

SUMMONS TO WITNESS

Before the Marriage Officer................................ (Place)

In the matter of the Hindu Marriage Act, 1955 (25 of 1955) and

In the matter of intended marriage/application to register marriage, between—

A.B

and (Give names and addresses)

C.D.

E.F. Objector.

To................................

Whereas your attendance is required to give evidence on behalf of................................ in the above matter, you are
hereby required to appear personally before me or to cause to be produced before me the document specified
hereunder on the................................day of................................ 20................................,
at...........................a.m./p.m. A sum of Rs................................ being your travelling and other expenses have been
deposited.

If you fail to comply with this summons without lawful excuse you will be subject to the consequences of non-
attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure, 1908.

Take notice that, in default of your appearance on the aforesaid day, the inquiry will be made and the matter
decided in your absence.

Given under my hand and seal.

Station: ................................ Signature................................

Date: ................................ Marriage Officer

Seal

FORM IV

(See rule 15)

Receipt No................................

Book No................................

Date................................

By whom paid................................

In the matter of marriage between................................and................................Fees received as follows:—

Rs. P.

Total................................

Signature................................Marriage Officer
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APPENDIX II REGISTRATION OF MARRIAGE

FORM V

(See rule 16)

FORM OF CERTIFICATE

Certified that the above entries from the Marriage Certificate Book in this office bearing Serial
Nos................................to................................ regarding marriage ................................ solemnised/registered
................................ are true copies of all the entries in the Marriage Certificate Book maintained under section 16
of the Rule kept by me for the three months ending................................ day of................................
20................................

Signature................................Marriage Officer OR

Certified that no entries have been made in the Marriage Certificate Book in this office during the three months
ending the................day of................20................

Station: ................ Signature................

Date: ................ Marriage Officer

FORM VI

(See rule 17)

FORM OF CASH BOOK

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APPENDIX II REGISTRATION OF MARRIAGE

Rs. P. Rs. P.
Receipt No. and Details of amount Amount Signature of Amount credited Challan No. and Signature of Remarks
date of realisation realised Marriage Officer into Treasury date Treasury Officer
and date and date
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APPENDIX II REGISTRATION OF MARRIAGE

Total

3. BIHAR
THE BIHAR MARRIAGE REGISTRATION RULES, 20061

Whereas marriage is an important and almost universal ritual in the life of the parties, and Whereas procedure of
marriage is guided by various legislations related to the faith and religion of the parties; and

Whereas at present there is no compulsion of getting marriage registered; and

Whereas lack of registration of marriage deprives the affected individuals in claiming their statutory rights for want
of an evidence; and

Whereas the Supreme Court of India has, in its order dated 14th February, 2006 in Transfer Petition (C) No. 291 of
2005 has directed all States to frame rules with respect to the compulsory registration of marriages;

The Governor of Bihar in exercise of the powers vested under Article 162 read with Article 154 of the Constitution of
India makes following Rules for its application in the State of Bihar:

1. Short title, extent and commencement.—(1) These rules may be called the Bihar Marriage Registration Rules,
2006.

(2) It shall extend to the whole of the State of Bihar and shall be applicable to the Marriages of all citizens of India
solemnized in the State.

(3) It shall come into force from the date of its notification in the Official Gazette.

2. Definitions.—In these rules unless there be some thing repugnant in the subject or context:—

(i) “Solemnization of marriage” means Solemnization of marriage under provisions of any custom, personal
law or under Special Marriages Act, 1954, or any other Act.
(ii) “Marriage Registrar” means Mukhia of a Gram Panchayat or Ward Commissioner/Counsellor of an urban
local body for the marriages solemnized in his jurisdiction.
(iii) “Marriage Register” means the Register maintained under rule 5(2) of these rules.
(iv) “Marriage Deputy Registrar-General” means the Sub-Registrar appointed under section 6 of the
Registration Act, 1908 of relevant jurisdiction.
(v) “Marriage Registrar-General” means the Collector of the District.
(vi) “Inspector-General of Registration” means the Inspector-General of Registration appointed by the State
Government under Registration Act, 1908.
(vii) “Registration of Marriage” means registration of marriages under rule 3 of these rules,
(viii) “Marriage Records” means Applications filed, Marriage Registration Register and Information maintained in
computer of the office of Marriage Deputy Registrar-General under rules 3, 5 and 8 these rules.
(ix) “Community Marriage Place” means those places where generally marriages are solemnized. They may
include Community Halls, Clubs, Hotels, Public places, Temples, Churches, Religious places etc.
(x) “Marriage Reporter” means a Manager of the Community Marriage Place authorized by the Marriage
Registrar under rule 5(1) of these rules.

3. Registration of Marriages.—Every couple shall get their marriage compulsorily registered before the Marriage
Registrar within 30 days of solemnization of their marriage, in accordance with the procedure as laid down under
rule 5 of these Rules.
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APPENDIX II REGISTRATION OF MARRIAGE

Provided that in case of marriage not getting registered within 30 days for some reason it may be got registered
thereafter after paying the penalty as laid down in rule 9(1) of these rules.

4. Registration to be no proof of validity of the marriage.—The Registration of marriage under these rules shall
not be an irrebuttable proof of validity of marriage under any law. This registration shall be rebuttable proof of the
marriage having taken place.

5. Procedure for registration of marriage.—(1) Every married couple shall furnish information and photograph
and sign a declaration as required in prescribed application form in triplicate in Form A of Appendix of these rules
before the Marriage Registrar having jurisdiction over the place of solemnization of marriage. A witness each of
both sides shall affix his signature on the application form as a token of affirmation of the said marriage having been
solemnized legally. The three copies of the application shall be for the use of Applicants (Form A-1), Marriage
Deputy Registrar-General (Form A-2) and Marriage Registrar (Form A-3) respectively:

Provided that the Marriage Registrar may authorize caretakers in community marriage places of his jurisdiction to
receive the applications from the married couples married in his establishment by appointing them as Marriage
Reporters.

(2) The Marriage Registrar shall enter the information of the application form in ‘Marriage Register maintained in
Form B of the Appendix to these rules. He shall record serial number (hereinafter known as Application Number) of
marriages on all copies of the application and return applicants’ copy to the couple after signing the certificate
mentioned therein:

Provided that, the declaration made and signature affixed by the couple and the witnesses before Marriage
Reporter in Community Marriage Places, shall be deemed to have been done before the Marriage Registrar
himself:

Provided further that on the application forms received through Marriage Reporter the serial number shall be
recorded by the Marriage Registrar only and if he feels that an inquiry is needed then he may make necessary
inquiry.

(3) Marriage Registrar shall make available, one copy of the remaining two copies of the applications to Marriage
Deputy Registrar-General of his area by the 15th day of the next month and maintain the receipt in his record.
Marriage Registrar shall maintain his copies of the applications in his record.

(4) The Marriage Deputy Registrar-General shall maintain the information regarding marriage of his area in his
computer. In addition to maintaining this in Form B-2, panchayat/ward wise, he shall maintain a record of the
names, tenure and specimen signature of Mukhias/Ward Commissioners in Form B-1:

Provided that the Marriage Deputy Registrar-General till the arrangement of computer in his office, may maintain
such information in a Register.

(5) Where Marriage Registrar finds apparent objection in registering the marriage in any case, he shall record the
objections on the application (Form A-2) and solicit guidance of Marriage Deputy Registrar-General of his area.
Such cases shall also be entered in the Marriage Register and objections shall be recorded in the relevant column.
In such cases, Marriage Registration Number shall not be given at that instant. Marriage Registration Certificate
shall also be not given at that time. The married couple shall be advised to appear before the Deputy Marriage
Registrar-General of the area.

(6). In such cases the Marriage Deputy Registrar-General if satisfied after making necessary inquiry will provide his
guidance in writing to the Marriage Registrar who shall enter it in relevant column of the Marriage Register.

Marriage Registration Number shall be given in such cases only when permitted by the Marriage Deputy Registrar-
General, otherwise Registration number shall not be filled up.

6. Disposal of objections related to Registration by Marriage Deputy Registrar general.—In cases where
guidance is solicited by the Marriage Registrar from Marriage Deputy Registrar-General under rule 5(5), he shall
examine the objections received, after hearing the couple and their witnesses and making necessary inquiry, in the
 Page 24 of 139
APPENDIX II REGISTRATION OF MARRIAGE

light of the provisions of marriage law applicable to them and shall record his finding in writing and he will send his
finding to the Marriage Registrar, a copy of which shall be provided to the married couple.

7. Appeal against the findings of Marriage Deputy Registrar-General.—The married couple may file appeal
against the findings of the Marriage Deputy Registrar-General under rule 6 before the Marriage Registrar-General
of his area.

8. Marriage Registration Certificate.—The Marriage Registrar may issue Marriage Registration Certificate to the
husband or wife or to both on their request in Form C of the Appendix on the basis of entries in the Marriage
Register:

Provided that in cases where any objection is received, Marriage Registration Certificate shall not be issued without
getting guidance of the Marriage Deputy Registrar-General and if the Marriage Deputy Registrar-General has
concluded that the said marriage cannot be registered, then Marriage Registration Certificate shall not be issued to
the couple.

9. Powers of Inquiry.—Marriage Deputy Registrar-General and Marriage Registrar-General shall have, all such
powers to call for the applicants, objectors and witnesses at such time and place fixed by them for making enquiry
to execute their function under these rules which is conferred by Civil Procedure Code.

10. Disposal of amount of fine.—The amount of fine received under rule 3 or 12 shall form part of Panchayat fund
or urban body fund.

11. Control and supervision.—All Marriage Registrar-Generals, Marriage Deputy Registrar-Generals and
Marriage Registrars shall be under the control and supervision of Inspector-General of Registration for discharge of
their duties under these rules.

12. Penalty and Fines.—(1) Any person who does not get his/her marriage registered within 30 days of
solemnization of marriage shall be liable to pay a fine of Rs. 100 upto 90 days and thereafter for Rs. 50 for each
month delay, upto a maximum of Rs. 1000 only. In case of couple being guilty, fine amount shall be payable by the
husband:

Provided that no fine will be imposed in those cases where applications have been submitted in time under the
provisions of rule 5(1) and rule 5(5).

(2) Any person who wilfully furnishes wrong declaration and witness thereto shall be liable for action under section
192 of Indian Penal Code.

13. Penalty on Public Servants.—(1) Non-acceptance of application for registration of marriage, omission in
entering them in Marriage Register and failure to make applications available to the Marriage Deputy Registrar-
General by 15th day of next month by Marriage Registrar/Marriage Reporter may form a ground for their removal
from their elected posts. Marriage Reporter shall be deemed to be a public servant for the purposes of discharging
responsibilities under these rules.

(2) Those Marriage Deputy Registrar-Generals who show dereliction of duty in maintaining information of marriage
registration shall be liable for department action under their service rules and on this basis they may be liable for
dismissal from service.

14. Maintenance of records.—(1) Panchayats/urban local bodies shall maintain Marriage Registration Register
permanently. It will be the personal responsibility of Marriage Registrar to get it received to his successor in office in
writing.

(2) The hard copy of the information maintained on computer in the office of Marriage Deputy Registrar-General
shall be printed each year and shall be got bound which shall be the permanent record of that office and read as
public document within the meaning of the Indian Evidence Act, 1872.

15. Power of issuing instructions.—The Inspector-General of Registration may from time to time issue directions
to Marriage Registrar-Generals, Marriage Deputy Registrar-Generals and the Marriage Registrars for proper
implementation of these Rules.
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APPENDIX II REGISTRATION OF MARRIAGE

Applicant’s copy Appendix

FORM NO. A-1

APPLICATION FOR REGISTRATION OF MARRIAGE UNDER THE BIHAR MARRIAGE REGISTRATION

RULES, 2006

To

The Marriage Registrar,

................

Please register our marriage for which particulars are given below:

Sl. No. Particulars Bridegroom Bride

1. Name

2. Age

3. Father’s Name

4. Mother’s Name

5. Status on the date of Unmarried/widower/divorcee/ Unmarried/widow/divorcee

marriage married

6. Address

7. Solemnization of Marriage.—Date................, Place................

8. Declaration: (1) I, ................ and ................ have been married on ................ at ................ according to under the
provisions of our Customs/Personal Law/Special Marriage Act, 1954 and since then we are living together as
husband and wife.

(2) We declare that all the above particulars are true to the best of our knowledge and belief.

Signature of Bride Signature of Bridegroom

Signature of witness Signature of Signature of witness from Bridegroom’s

witness from from Bride’s side side

Application No. ............................/ (Panchayat/Block/District) Date................

(Ward/town/District)

Certified that Shri ................ S/o ................ and Smt. ................ D/o ................ have applied for registration of their
marriage solemnized at (Place) ................on (Date) ................ .

It has been registered under the provisions of Bihar Marriage Registration Rules, 2006 with Regn. No. ................
dated ................in the Marriage Registration Register of this Panchayat/Ward.

OR

Their case has been referred to Marriage Deputy Registrar-General and they have advised to appear before him.

Marriage Registrar

Marriage Deputy Registrar’s General copy

 Page 26 of 139
APPENDIX II REGISTRATION OF MARRIAGE

FORM NO. A-2

APPLICATION FOR REGISTRATION OF MARRIAGE UNDER THE BIHAR MARRIAGE REGISTRATION

RULES, 2006

To

The Marriage Registrar, ................

Please register our marriage for which particulars are given below:

Sl.No. Particulars Bridegroom Bride

01 Name

02 Age

03 Father’s Name

04 Mother’s Name

05 Status on the date of Unmarried/widower/divorcee/ Unmarried/widow/divorcee

marriage married

06 Address

07. Solemnization of Marriage.—Date................, Place................

08. Declaration: (1) I, ................ and ................ have been married on ................ at ................ according to under
the provisions of our Customs/Personal Law/Special Marriage Act, 1954 and since then we are living together as
husband and wife.

(2) We declare that all the above particulars are true to the best of our knowledge and belief.

Signature of Bride Signature of Bridegroom

Signature of witness Signature of Signature of witness from Bridegroom’s

witness from from Bride’s side side

Application No. ............................/ (Panchayat/Block/District) Date................

(Ward/town/District)

Shri ................ and Smt. ................ have applied for registration of their marriage claiming this to have been
solemnized on ................ at ................ Guidance of Marriage Deputy Registrar-General is solicited on following
objections:—

Marriage Registrar

Marriage Registrar’s copy

FORM NO. A-3

APPLICATION FOR REGISTRATION OF MARRIAGE UNDER THE BIHAR MARRIAGE REGISTRATION

RULES, 2006

To

The Marriage Registrar, ................

 Page 27 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Please register our marriage for which particulars are given below:

Sl.No. Particulars Bridegroom Bride

1. Name

2. Age

3. Father’s Name

4. Mother’s Name

5. Status on the date of Unmarried/widower/divorcee/ Unmarried/widow/divorcee

marriage married

6. Address

7. Solemnization of Marriage.—Date................, Place................

8. Declaration: (1) I, ................ and ................ have been married on ................ at ................ according to under the
provisions of our Customs/Personal Law/Special Marriage Act, 1954 and since then we are living together as
husband and wife.

(2) We declare that all the above particulars are true to the best of our knowledge and belief.

Signature of Bride Signature of Bridegroom

Signature of witness Signature of Signature of witness from Bridegroom’s

witness from from Bride’s side side

Application No. ............................/ (Panchayat/Block/District) Date................

(Ward/town/District)

Whether registered? Yes/No

If yes, Marriage Registration Number & Date ................

If no,
(i) Date of reference to Marriage Deputy Registrar-General ................
(ii) Date of receipt of reference ................
(iii) Date of entering the guidance ................

Marriage Registrar

Page No. ...............

FORM B-1

MARRIAGE REGISTRATION REGISTER

(Under the Bihar Marriage Registration Rules, 2006)

Ward No. and Name Gram Panchayat/Municipal Block Town District

body
 Page 28 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Name and tenure of Ward member

Name from to Specimen Signature

FORM B-2

MARRIAGE REGISTRATION REGISTER

 Page 29 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Application No. Marriage Solemnization of Bridegroom Bride Objection, if any Summary

Registration No. Marriage findings of
Registrar
Date Place Name, Age, Name, Age,
Status*, Father’s Status**, Father’s
name, Address name, Address

* Unmarried or **Unmarried or
widower or widow or divorcee
divorcee or
married
 Page 30 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Serial No................ Date................

FORM C

MARRIAGE REGISTRATION CERTIFICATE

(Under the Bihar Marriage Registration Rules, 2006)

Application No................/ (Name of Ward/Panchayat/Block/District)/Bihar Registration No................

Date................It is hereby certified that the marriage of Sri ................ (bridegroom) S/o ................ resident of
................ and Smt................ D/o Shri ................ resident of................ solemnized at ................ on ................ is
registered in Marriage Registration Register maintained in this office.

*The findings of Marriage Deputy Registrar-General in this matter are noted overleaf.

Marriage Registrar (Seal)

Strike out, if not applicable

4. CHHATTISGARH
THE CHHATTISGARH COMPULSORY REGISTRATION OF MARRIAGES RULES, 20061

In exercise of the powers conferred by Entry 5 and 30 of List III given (Concurrent List) of Schedule VII of
Constitution of India and the direction by Hon’ble Supreme Court of India in T.P. No. 291/2005, Seema v. Aswini
and in view to take effective steps to restrain Child Marriage and Proper Custody of Children, to ensure the rights of
Children born from the wedlock of the spouses, (Proposed rules having been published vide Department
Notification No. 11456/XXI-Vet/C.G./06, dated 14-9-2006 inviting objections and suggestions), the State
Government hereby makes the following rules, namely:—

1. Short title, extent and commencement.—(1) These rules may be called the Chhattisgarh Compulsory
Registration of Marriages Rules, 2006.

(2) If extends to the whole of State of Chhattisgarh.

(3) It shall come into force from the date of its publication in the Official Gazette.

2. Definitions.—In these rules, unless the context otherwise, requires,—

(a) “Chief Registrar” means Chief Registrar appointed under rule 3;

(b) “Collector” means the Collector of the District;
(c) “Government” means State Government of Chhattisgarh;
(d) “Local area” means the area comprising of Gram Panchayat or Municipality of Municipal Corporation as the
case may be;
(e) “Local Authority” means Gram Panchayat or Municipality or a Municipal Corporation as the case may be;
(f) “Marriage” means and includes all marriages solemnized, performed or contracted between a male and
female, irrespective of the religion or caste or either party to the marriage, and also includes marriages
performed as per law, custom practice or any tradition of either party to the marriage and includes a re-
marriage;
(g) “Memorandum” means a memorandum of marriage referred to in rule 4;
(h) “Priest” means any person who solemnizes marriage;
(i) “Register” means the Register of marriage maintained under the rules;
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APPENDIX II REGISTRATION OF MARRIAGE

(j) “Registrar” means Registrar under the provision of sub-rule (2) of rule 3 of the Rules.

3. Appointment of Chief Registrar and Registrar.—(1) The State Government may by notification appoint any
officer as Chief Registrar for the State.

(2) Local Authority shall be the registrar for its local area for the purpose of these Rules.

4. Registration of Marriage.—(1)
(a) From the date of coming into force of these rules every marriage solemnized in the State shall be
registered.
(b) The parties to a marriage shall submit a memorandum in the Form specified in Schedule ‘A’ and shall
deliver or send by registered post in duplicate to the Registrar of the area where marriage is solemnized or
performed within a period of thirty days from the date of marriage.
(c) The Registrar of Marriage may accept memorandum of the marriage beyond the limitation prescribed, if
party to the marriage establishes that he was prevented by any cause beyond his control;
(d) After examining the memorandum submitted by the parties Registrar shall enter the entries of the
memorandum in the register specified in Schedule ‘C’.
(e) Each memorandum filled in the Registrar shall be treated as a separate entry and each entry shall be
numbered in a consecuting services which will commence and terminate with each calendar year a fresh
series being commenced with the beginning of each year.
(f) The Registrar shall send the records of all marriages in form specified in Schedule ‘B’ to the Chief
Registrar.

(2) Where the Registrar, before whom the memorandum is submitted on scrutiny of the document submitted with
the memorandum or, on the other facts noticed or brought to his notice is satisfied or has reasons to believe that—
(a) the marriage between the parties is not performed in accordance with any law for the time being in force; or
(b) the marriage between the parties is not performed in accordance with the personal law of the parties; or
(c) the identity of the parties or the witnesses or the persons testifying the identity of the parties and the
solemnization of the marriage is not established beyond reasonable doubt; or
(d) the documents tendered before him do not prove the marital status of the parties,

he may, after hearing the parties and recording the reasons in writing, refuse to register the marriage and may—
(i) call upon the parties to produce such further information or documents as deemed necessary, for
establishing the identity of the parties and the witnesses or correctness of the information or documents
presented to him, or
(ii) if deemed necessary, also refer the papers to the local police station within whose jurisdiction the parties
reside [1]1[or Superintendent of Police], for verification.

(3) Where on further verification as provided in sub-rule (2) the Registrar is satisfied that there is no objection to
register the marriage he may register the same. If in the opinion of the Registrar, the marriage is not fit for
registration, he may pass an order of refusal in writing, recording the reasons and send the duplicate copy to the
Chief Registrar.

5. Appeal against the order of Registrar.—(1) Any person aggrieved by the order of the Registrar refusing to
register the marriage under rule 4 may within a period of thirty days from the date of receipt of such order, appeal to
the Collector or an Officer nominated by him accompanied by fees of Rs. 30.

(2) The Collection or the Officer nominated by him after giving an opportunity of being heard to the parties pass an
order in writing, recording the reason, directing the Registrar to register the marriage or confirm the order of the
Registrar.

6. Appeal to District Judge.—Any person aggrieved by the order of the Collector or the Officer nominated by him
may, within period of thirty days from the date of the order, appeal to the District Judge within the local limits of
whose jurisdiction the Registrar of Marriage has his office and the decision of the District Judge shall be final.
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APPENDIX II REGISTRATION OF MARRIAGE

7. Register of Marriages.—(1) The Registrar shall maintain a Register of marriages solemnized/performed in the
local area for which he is appointed, in such form as specified in Schedule ‘C’ and enter description given by parties
in memorandum and authenticate the same and send a copy of the entry to the Chief Registrar.

(2) The Registrar shall issue a certificate of the Registration of the marriage to the parties in the form shown in the
Schedule ‘D’.
1[(3) And in case of NRI marriage, the marriage certificate shall be issued in duplicate to both husband and wife.]

8. Register to be open for public inspection.—-The Register of marriages shall, at all reasonable times, be open
to inspection and the certified extracts therefrom shall, on application, be given by the Registrar to the applicant on
payment of fees of Rs. 20.

9. Non-Registration of marriages.—No marriage performed to which these rules apply shall be deemed to be
invalid solely by reason of the fact that it was not registered under the rules.

10. Procedure to be followed by the Registrar upon receipt of memorandum of marriage.—The Registrar
shall maintain a register of all marriages for which a memorandum is submitted to him, and shall on receipt of the
memorandum in the register registering the marriage.

11. Responsibilities of employer etc., verification of marriage registration certificate.—No employer or a

Government or Semi Government Authority or Company or Public Sector Undertaking or Local Authority shall carry
out any change in their office record or in any office documents, such as change in the marital status or change of
nomination of its employee or in their dealing with any person, customer or client unless the employee or as the
case may be, the applicant, applying for carrying out or recording of such change, submits a certified copy of the
certificate or registration of marriage granted under rule 7 or granted under any other law for the time being in force.

12. Penalty for falling to submit memorandum.—Whoever wilfully fails to submit the memorandum under rule 4
shall be punished with fine which may extend to five hundred rupees.

13. Penalty for destroying or altering register.—Whoever destroys, tampers the register or dishonestly submits
false information, shall be punished with fine of rupees two thousand, in addition to punishment awardable under
any other law for the time being in force.

14. Registrar to be public servant.—Every Registrar including the Chief Registrar shall be deemed to be public
servant within the meaning of section 21 of Indian Penal Code (45 of 1860).

15. Indemnity to persons acting under these rules.—No suit, prosecution or other legal proceeding shall lie
against the Registrar/Chief Registrar or any employee subordinate to him for anything which is in good faith done or
purporting to be done under the rules.

16. Provision of these rules to be in addition to and not in derogation of other laws.—The provisions of these
rules are in addition to and not in derogation of any other law for the time being in force.

17. Power of State Government to give direction.—The State Government may from time-to-time issue such
directions not inconsistent with the provisions of these rules to the Chief Registrar, as it may deem fit in this regard
for the effective and smooth implementation of the provisions of the rules.

18. Power to remove difficulties.—If any difficulty arises in giving effect to the provisions of these rules the State
Government may, by order published in the Official Gazette make such provisions not inconsistent with the
provisions of these rules, as may be necessary for removing the difficulty.

SCHEDULE ‘A’

[See rule 4(b)]

PROFORMA OF MEMORANDUM

1. (A) Name and address of the Male/Bridegroom — .......................

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APPENDIX II REGISTRATION OF MARRIAGE

(B) Date of Birth — .......................

(C) Name of Father — .......................
(D) Age at the time of marriage — .......................

(1) (2) (3) (4) (5) (6) (7)

Laboratory 18 30 Desirable.—Two
years’

Assistant years years experience of

working in
Scientific
Laboratory.

Essential.—
Higher Secondary
Examination
passed with
Science subjects
or in 10+2
Education System
with Science
subjects.Desirable
.—One year
experience of
working in
Scientific
Laboratory.

Laboratory 18 30 Essential.—High
school/

Attendant years years Higher Secondary

(with Science) in
10+2 Education
System
Examination
passed.

Viscera 18 30 Essential.—Fifth
Class

Cutter years years Examination

(Primary
Education System)
passed.

SCHEDULE IV

(See rule 14)

Name of Department Name of post from Name of post to Minimum Service in Composition of the
which promotion is to which promotion is to the post of col. (2) for Departmental
be made be made eligibility for Promotion
promotion in col. (3) Committee
(1) (2) (3) (4) (5)
Home (Police) Laboratory Attendant Laboratory Assistant 5 years Chairman—Director-
Department General of Police or
member nominated by
him Member- 1.
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APPENDIX II REGISTRATION OF MARRIAGE

Name of Department Name of post from Name of post to Minimum Service in Composition of the
which promotion is to which promotion is to the post of col. (2) for Departmental
be made be made eligibility for Promotion
promotion in col. (3) Committee
(1) (2) (3) (4) (5)
Director F.S.L., (C.G.)
2. Joint Director,
F.S.L., (C.G.)

Laboratory Assistant Laboratory Technician 5 years —do—

Laboratory Scientific 8 years, 1. Chairman—

Technician Officer with B.Sc. Chairman Public

Service Commission or
member nominated by
him.

Laboratory Scientific Officer 8 years 2. Member—Addl.

Chief

Technician (Store/Photo/Library/Ex (10+2 Examination Secretary (Home)

hibit) passed)
3. Member—Director-
General of Police

4. Member—Director,
F.S.L.

5. GUJARAT
(1) THE GUJARAT REGISTRATION OF MARRIAGES ACT, 20061

(Gujarat Act No. 16 of 2006)

An Act to provide for registration of marriages in the State of Gujarat and for the matters connected, therewith or
incidental thereto.

1. Short title and commencement.—(1) This Act may be called the Gujarat Registration of Marriages Act, 2006.

(2) It extends to the whole of the State of Gujarat.

(3) This section shall come into force at once and the remaining provisions shall come into on such date as the
State Government may, by notification in the Official Gazette, appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “to contract a marriage” means to solemnize or enter into a marriage under any law for the time being in
force or by custom or usage in any form or manner;
(b) “marriage” includes re-marriage;
(c) “memorandum” means a memorandum of marriage referred to in sections 5 and 6;
(d) “priest” means any person who solemnizes a marriage;
(e) “prescribed” means prescribed by rules made under this Act;
(f) “Registrar” means the Registrar of Marriages appointed under this Act;
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APPENDIX II REGISTRATION OF MARRIAGE

(g) “Registrar-General” means the Registrar-General of Births, Deaths and Marriages appointed for the State
of Gujarat under the Births, Deaths and Marriages Registration Act, 1886.

3. Appointment of Registrar of Marriage.—(1) The State Government may, by general or special order, appoint
either by name or by virtue of their office, such number of persons as it thinks necessary, to be the Registrars of
marriages for such local areas as may be specified in the order, and one or more Registrar may be appointed for
one or more such areas for carrying out the purposes of this Act.

(2) The Registrar shall exercise such powers and perform such duties as may be prescribed by or under this Act
and shall work under the general supervision and control of the Registrar-General and the State Government.

4. Marriage to be registered.—From the date of the coming into force of this Act, every marriage contracted in the
State shall be registered in the manner provided in section 5 or, as the case may be, section 6.

5. Memorandum of marriage.—The parties to a marriage shall prepare a memorandum in the Form specified in
the Schedule and shall deliver or sent by registered post the said memorandum in duplicate to the registrar of the
area where marriage is contracted, within a period of thirty days from the date of the marriage.

6. Memorandum of marriage submitted after thirty days.—(1) A memorandum of marriage may be submitted by
the parties to the marriage to the Registrar of the area where marriage is contracted after the expiry of the period of
thirty days prescribed in section 5.

(2) Nothing in sub-section (1) shall affect the liability of any person to any penalty under section 15, who has
omitted or neglected to deliver or send the memorandum within the period of thirty days specified in section 5.

7. Signature on memorandum and fees to be paid.—Every memorandum submitted under section 5 or 6 shall be
signed by the parties to the marriage and by the priest and the witnesses and shall be accompanied by such fees
as may be prescribed.

8. Power to refuse registration of marriage.—(1) Where the Registrar, before whom the memorandum is
presented under section 5 or 6, on scrutiny of the documents submitted with the memorandum or, on the other facts
noticed or brought to his notice, it satisfied or has reason to believe that,—

(a) the marriage between the parties is not performed in accordance with the personal law of the parties; or
(b) the identity of the parties or the witnesses or the persons testifying the identity of the parties and the
solemnization of the marriage is not established beyond reasonable doubt; or
(c) the documents tendered before him do not prove the marital status of the parties, he may, after hearing the
parties and recording the reasons in writing, refuse to register the marriage and may—
(i) call upon the parties to produce such further information or documents as deemed necessary, for
establishing the identity of the parties and the witnesses or correctness of the information or
documents presented to him, or
(ii) if deemed necessary, also refer the papers to the local police station within whose jurisdiction the
parties reside, for verification.

(2) Where on further verification as provided in sub-section (1), the Registrar is satisfied that there is no objection to
register the marriage, he may register the same. If in the opinion of the Registrar, the marriage is not fit for
registration, he may pass an order of refusal in writing, recording the reasons therefore and send duplicate copy
thereof to the Registrar-General.

9. Appellate power of Registrar-General.—(1) Any person aggrieved by the order of the Registrar refusing to
register the marriage under section 8, may, within a period of thirty days from the date of receipt of such order,
appeal to the Registrar-General in such manner and accompanied by such fees as may be prescribed.

(2) The Registrar-General, after giving an opportunity of being heard to the parry concerned, pass an order, after
recording the reasons in writing, directing the Registrar to register the marriage or confirming the order of the
Registrar.

10. Appeal from order under section 9.—Any person aggrieved by the order of the Registrar-General made
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APPENDIX II REGISTRATION OF MARRIAGE

under section 9 may, within a period of thirty days from the date of the order, appeal against such order to the
District Court within the local limits of whose jurisdiction the Registrar of marriage has his office and the decision of
the District Court on such appeal shall be final and thereupon the Registrar shall act in conformity with such
decision.

11. Register of marriages.—(1) The Registrar shall maintain a register of marriages contracted in the State in such
form and in such manner as may be prescribed. On receipt of the memorandum of marriage under section 5 or 6,
the Registrar shall file the same in the register and shall send the duplicate copy thereof to the Registrar-General.

(2) On registration of the marriage, the Registrar shall issue a certificate of registration of marriage to the parties in
the prescribed form.

12. Register to be open for public inspection.—The register of marriages shall, at all reasonable times be open
to inspection and the certified extracts therefrom shall, on application, be given by the Registrar to the applicant on
payment of such fees as may be prescribed.

13. Non-registration not to invalidate marriage.—No marriage contracted in the State shall be deemed to be
invalid solely by reason of the fact that it was not registered under this Act or that the memorandum was not
delivered or sent to the Registrar or that such memorandum was defective or incorrect.

14. Responsibility of employer, etc., of verification of marriage registration certificate.—No employer or a

Government or Semi-Government Authority or Company or Public Sector Undertaking or Local Authority shall carry
out any change in their office record or in any office documents, such as change in the marital status or change of
nomination, of its employee or in their dealings with any person, customer or client unless the employee or, as the
case may be, the applicant, applying for carrying out or recording of such change, submits a certified copy of the
certificate of registration of marriage granted under section 11 or granted under any other law for the time being in
force.

15. Penalty for neglecting to comply with provisions of section 5 or for making false statement in
memorandum.—Any person who—

(a) omits or neglects to deliver or send the memorandum as required by section 5; or

(b) makes any statement in the memorandum which is false in any material particular, and which he knows or
has reason to believed to be false, shall, on conviction, be punished with fine which may extend to one
thousand rupees.

16. Penalty for failing to file memorandum.—The Registrar who wilfully fails to file the memorandum pursuant to
section 5 or 6 shall, on conviction, be punished with imprisonment for a term which may extend to three months or
with fine which may extend to one thousand rupees or with both.

17. Penalty for secreting, destroying or altering register.—Any person secreting, destroying or dishonestly or
fraudulently altering the register of marriage or any part thereof shall, on conviction, be punished with imprisonment
for a term which may extend to two years or with fine which may extend to ten thousand rupees or with both.

18. Sanction for prosecution.—No prosecution for an offence punishable under this Act shall be instituted except
by an officer authorized by the Registrar-General by general or special order, in this behalf.

19. Registrar to be public servant.—Every Registrar while acting or purporting to act in pursuance of the
provisions of this Act or rules made there under, be deemed to be a public servant within the meaning of section 21
of the India Penal Code (XLV of 1860).

20. Indemnity to persons acting under this Act.—No suit, prosecution or other legal proceeding shall lie against
the Registrar or any employee subordinate to him for anything which is in good faith done or purporting to be done
under this Act or rules made there under.

21. Power to make rules.—(1) The State Government may, by notification the Official Gazette, and subject to the
previous publication, make rules for carrying out the purposes of this Act.
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APPENDIX II REGISTRATION OF MARRIAGE

(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any
of the following matters, namely:

(a) the powers and duties of the Registrar under section 3;

(b) the form and the manner in which register of marriages and records required to be maintained and the form
of certificate of registration of marriage to be issued under section 11;
(c) the custody in which the register and records are to be kept and the preservation of such registers and
records:
(d) the fees to be paid under sections 7 and 12;
(e) creating awareness for registration of marriages;
(f) any other matter which may be or requires to be prescribed.

(3) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon
as possible after they are made and shall be subject to recession by the State Legislature or to such modifications
as the State Legislature may make during the session in which they are so laid or the session immediately
following.

(4) Any recession or modification so made by the State Legislature shall be published in the Official Gazette, and
shall thereupon take effect.

22. Provisions of this Act to be in addition to and not in derogation of other laws.— The provisions of this Act
are in addition to and not in derogation of any other law for the time being in force.

23. Power of State Government to give directions.—The State Government may, from time-to-time, issue such
directions not inconsistent with the provisions of this Act, to the Registrar and to the Registrar-General, as it may
thinks fit in this regard, for the effective and smooth implementation of the provisions of this Act and the Registrar
and the Registrar-General shall comply with such directions.

24. Power to remove difficulties.—(1) If any difficulty arises in giving effect to the provisions of this Act, the State
Government may, by order published in the Official Gazette, make such provisions not inconsistent with the
provisions of this Act, as may be necessary for removing the difficulty:

Provided that no order under sub-section (1) shall be made after the expiry of two years from the date on which this
Act comes into force.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before the State
Legislature.

25. Repeal and savings.—(1) The Bombay Registration of Marriages Act, (V of 1954) is hereby repealed.

(2) Nothing in this Act shall affect—

(a) the marriages duly contracted and registered under the repealed Act;
(b) anything done or any action taken or any extracts of register given under the repealed Act; or
(c) any rules made or any register of marriages maintained under the repealed Act until they are rescinded or
modified.

SCHEDULE

FORM

[See section 5]

MEMORANDUM OF MARRIAGE

1. Date of marriage.
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APPENDIX II REGISTRATION OF MARRIAGE

2. Place of marriage (with sufficient particulars to locate the place).

3.
(a) Full name of the bridegroom.
(b) His age. (Attach true copy of birth registration certificate or affidavit in the prescribed form)
(c) Religion.
(d) Usual place of residence.
(e) Address
(f) Status of the bridegroom at the time of marriage whether (Please √ tick whichever is applicable)
(g) Signature of the bridegroom with date.
4.
(a) Full name of the bride
(b) Her age. (Attach true copy of birth registration certificate or affidavit in the prescribed form)
(c) Religion
(d) Usual place of residence
(e) Address
(f) Status of the bridegroom at the time of marriage whether

(Please √ tick whichever is applicable)

(g) Signature of the bride with date.
5.
(a) Full name of the father or mother or guardian of the bridegroom.
(b) Age.
(c) Usual place of residence.
(d) Address.
6.
(a) Full name of the father or mother or guardian of the bride.
(b) Age.
(c) Usual place of residence.
(d) Address.
7.
(a) Full name of the priest
(b) Age.
(c) Usual place of residence.
(d) Address.
(e) Signature of the priest with date.
8.
(1)
(a) Full name of first witness.
(b) Age.
(c) Address.
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APPENDIX II REGISTRATION OF MARRIAGE

(d) Signature with date.

(2)
(a) Full name of second witness.
(b) Age.
(c) Address.

(2) THE GUJARAT REGISTRATION OF MARRIAGES RULES, 20061

WHEREAS the draft rules were published as required by section 21 of the Gujarat Registration of Marriages Act, 2006
(Guj. Act of 16 of 2006), at paged 290-1 to 290-12 of the Gujarat Government Gazette, Extraordinary, Part IV-B,
dated 7-9-2006 under the Government Notification, Health and Family Welfare Department No. GP-19-of 2006 LNK
102006-302-Y, dated 7-9-2006 inviting objections or suggestions from all persons likely to be affected thereby for a
period of 30 days from the dated of publication of the said Notification in the Official Gazette:

AND WHEREAS no objections or suggestion have been received by the Government from any person with respect to
the aforesaid draft rules;

NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of section 21 of the Gujarat Registration of
Marriages Act, 2006 (Guj. Act 15 of 2006), the Government of Gujarat hereby makes the following rules namely:—

1. Short title.—These rules may be called the Gujarat Registration of Marriages Rules, 2006

2. Definitions.—
(1) In these rules, unless the context otherwise requires,—
(a) “Act” means the Gujarat Registration of Marriage Act, 2006;
(b) “Form” means Form appended to these rules;
(c) “section” means a section of the Act;
(d) “Table” means a Table appended to these rules;
(e) “Witness” means any person who is present at the time of the solemnization of the marriage.
(2) Words and expressions used but not defined in these rules shall have the meanings respectively assigned
to them in the Act.

3. Powers and duties of Registrar.—The Registrar of Marriage appointed by the State Government under sub-
section (1) of section 3 of the Act, shall exercise all such powers and perform all such duties for carrying out the
purposes of the Act, which inter alia include the following, namely:
(a) to verify the memorandum for registration of marriage to verify and identify parties and witnesses, issue
certificate of registration of marriage and send the copies of entries in the Marriage Certificate Book to the
Registrar-General;
(b) to call upon the parties to produce other information or documents, if deemed necessary refer the papers
to the local police station for verification and to refuse to register the marriage;
(c) to sent the duplicate copy of an order of refusal to register a marriage to the Registrar-General;
(d) to file the memorandum of marriage in the register of marriages and to maintain the same, and send the
duplicate copy thereof to the Registrar-General;
(e) to provide certificate copies of extracts of the register of marriages and all other certificates and orders
issues or passed by him to the applicant;
(f) to act according to the directions issued by the State Government for the effective and smooth
implementation of the provisions of the Act.

4. Procedure for Registration of Marriage.—(1) Every memorandum for registration of marriage shall be in the
form specified in the schedule to the Act and shall be delivered or sent along with application in Form ‘I’.
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APPENDIX II REGISTRATION OF MARRIAGE

(2) The memorandum shall be in duplicate, signed by the parties to the marriage priest and two witnesses and
accompanied by fees as prescribed in the table duly affixed by a court-fee stamp or stamps of such value as may
be prescribed by the State Government from time-to-time under the Bombay Stamp Act, 1958 (Bom. LX of 1958).

(3) The memorandum shall also be accompanied by the following documents namely:
(a) copy of the ration card or identity card, if any issued by the Election Commission of India or any other
documents like passport or identity card issued by the employer etc., to the parties and the witnesses;
(b) birth certificate or school leaving certificate of the parties;
(c) marriage invitation card, if any:

Provided that the Registrar may, in the discretion, allow any other documents to be submitted with the
memorandum as sufficient proof for establishing, beyond reasonable doubt, the identity and residence of the parties
and witnesses.

(4) On presentation of the memorandum and after verification of the same and after being satisfied about the
identity of the parties and witnesses, the Registrar shall make an endorsement as under, on the reverse side, and
then paste the memorandum in the register of marriages which shall be in the form of a paste book consisting of
blank butts serially numbered, beginning with figure ‘1’.

The memorandum and the fee of Rs…….were received by me on….20....and the memorandum is filed at Serial
No…….of…….20…….on page…….of value...........of the register of marriage maintained under the Gujarat
Registration of Marriage Act, 2006 (Guj. 16 of 2006).

Dated the………..day of......20.....

Signature……………..

Registrar of Marriage

(5) On filing the memorandum along with the application and completion of registration, the Registrar shall issue
Certificate of Registration of marriage in Form ‘II’ either in person or sent it by post to the parties to the marriage.

(6) If the Registrar is of the opinion that the details given in memorandum and the documents or the papers
submitted by the parties and witnesses do not establish, beyond reasonable doubt, the identity of the parties or the
witnesses or both, the Registrar may, direct the parties, giving them reasonable time to furnish such other
documents or papers as considered necessary by the Registrar for the grant of registration certificate. On furnishing
of such papers or documents, the Registrar, on verification of such documents or papers, on being satisfied, may
grant the Certificate of Registration of Marriage in Form “II”.

(7) In case the Registrar is not satisfied about the identity of the parties or the witnesses, or about the correctness
of the statement made in the memorandum, the Registrar may, after hearing the parties and after recording the
reasons, in writing, pass an order in Form “III” refusing to register the marriage and send the duplicate copy thereof
to the Registrar-General.

5. Delayed registration and fees payable therefor.—(1) A memorandum for registration of marriage delivered or
sent to the Registrar after the expiry of the period of thirty days but within three months from the date of the
marriage shall be registered on a payment of fees as prescribed in the Table.

(2) A memorandum for registration of marriage delivered or sent to the Registration after the expiry of the period of
three months from the date of the marriage shall be registered on a payment of fees as prescribed in the Table.

6. Duplicates to be forwarded to Registrar-General.—On or before the fifth day of each month, the Registrar
shall send by registered post to the Registrar-General all duplicate copies of the memorandums received by him
during the preceding month affixing at the end of the last of such copies and certificates as follows, namely:

Certified that the above, which contains Serial No………to Serial No………are duplicate copies of all the
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APPENDIX II REGISTRATION OF MARRIAGE

memorandum filed in the register of marriages maintained by me under the Gujarat Registration of Marriages Act,
2006 (Guj. 16 of 2006) during the month………of ...., 20 ....

Dated the………..day of……….20.....

Signature……......……..

Registrar of Marriages

7. Rectification of defects in memorandum or to send it to Registrar having jurisdiction.—(1) If any

memorandum received by a Registrar under section 5 or section 6 is not accompanied by a duplicate thereof, or the
appropriate fee or if the memorandum is defective in any respect, the Registrar shall require the parties to the
marriage to furnish the duplicate or to pay the proper fee, or to rectify the defect, as the case may be, within such
time as may be specified by him.

(2) If the Registrar receiving such memorandum has no jurisdiction to receive the same he shall send the
memorandum to the Registrar having such jurisdiction and inform the persons who had sent or delivered the
memorandum accordingly.

(3) If the Registrar receiving such memorandum has no jurisdiction but inadvertently files the same in the register
maintained by him, he shall sent a certified copy thereof together with the copy of endorsement of filing recorded
thereon to the Registrar having jurisdiction for the purpose of filing and inform the persons who had sent or
delivered the memorandum accordingly. He shall then make a suitable endorsement on the memorandum
indicating the action taken by him and for cancellation of registration from his register.

(4) The Registrar on receiving a certified copy of the memorandum under sub-rule (3) shall file in the register
maintained by him without levying any additional fee and report the action taken by him to the Registrar-General.

8. Appeal to Registrar-General.—(1) An Appeal to the Registrar-General under sub-section (1) of section 9

against the order of the Registrar, may be made within a period of thirty days along with a copy of the order of the
Registrar refusing to register the marriage under section 8, along with necessary documents and the fees as
specified in the Table.

(2) The Registrar-General after giving an opportunity of being heard to the aggrieved parties concerned, pass an
order, after recording the reasons in writing, directing the Registrar to register the marriage or confirming the order
of the Registrar.

9. Form of receipt.—The Receipt Books shall be bound volumes of one hundred leaves, each with foils and
counterfoils, which shall be machine-numbered consecutively. The Registrar shall acknowledge a receipt for each
amount received by him in the following form, namely:

RECEIPT

No………….

Under the Gujarat Registration of Marriage Act, 2006 (Guj. 16 of 2006) Received fees as follows

Item (Rs.)
(i) For registration of Memorandum of marriage
(ii) For*……..certified extracts from the Registrar
(iii) For*....……certified copy/copies of.
(iv) For any other

....……

Total....……

Rupees in words: rupees…………………………………………………….

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APPENDIX II REGISTRATION OF MARRIAGE

Dated the....……day of....20....……

Signature…………

Registrar of Marriage

10. Form of Registrar and manner of keeping it.—(1) The Registrar shall maintain the register of marriage for
every year in Form ‘IV. Information regarding grant of certificate of registration of marriage, and refusal to register
the marriage shall be maintained separately in this register. The register shall be in the form of a paste book
consisting of blank butts serially numbered.

(2) The Registrar shall certify under his signature on the title page of every blank register issued to him the number
of pages actually contained in such register and shall note the date on which the register was received and opened
by him.

(3) The registers used by the Registrar shall be numbered serially beginning with the figure 1.

11. Inspection of registers and obtaining certified copies thereof.—The registers referred to in rule 10 shall be
open for inspection for all members of public. Any person desirous of inspecting the register may do so, on an
application made in that behalf to the Registrar and on payment of fees as specified in the Table.

(2) Any person desirous of obtaining certified copy or copies of the extract of the register shall make an application
for the same in Form ‘V’ and pay to the Registrar fees as specified in the Table for each copy.

12. Marriage Certificate Book.—(1) The Registrar shall keep the Marriage Certificate Book, which shall be a
bound volume, the pages of which are machine-numbered consecutively with a nominal index attached. Every
marriage certificate entered therein during each calendar year shall be consecutively numbered and every
authenticated copy of a certificate issued to the parties shall bear this number and the date, month and the year in
which the certificate was entered.

(2) The Registrar shall send by registered post to the Registrar-General all copies of entries in the Marriage
Certificate Book at the interval of three months on or as nearly as possible after, the 1st January, April, July and
October in each year.

13. Supply of Forms of Memorandum of Marriage.—Blank forms of memorandum of marriage shall be supplied
free of charges to the parties to a marriage by the Registrar.

14. Registrar to keep all applications and memorandum in safe custody.—The Registrar shall keep every
application and every memorandum received by him, in a safe custody till the period as directed by the Government
from the date of its receipt, and shall not be removed from his office otherwise than under a written order of a Court.

15. Superintendence.—The Registrar shall perform his duties and exercise his powers under the general
superintendence of the Registrar-General and the State Government.

16. Filing and indexing by Registrar-General.—(1) On receipt of the duplicate copies of memorandum sent under
sub-section (1) of section 11 of the Act the Registrar-General shall file them (by passing) in the registers similar to
those maintained by the Registrars. All entries in the Registrar-General’s registers shall be indexed in two different
forms as follows, namely:

INDEX NO. I

(Husband)
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APPENDIX II REGISTRATION OF MARRIAGE

Name of Husband Place of residence Name of wife Place of residence Place of marriage Date of marriage Reference to
memorandum
1 2 3 4 5 6 7
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APPENDIX II REGISTRATION OF MARRIAGE

INDEX NO. II

(Wife)
 Page 45 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Name of Wife Place of residence Name of husband Place of residence Place of marriage Date of marriage Reference to
memorandum
1 2 3 4 5 6 7
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APPENDIX II REGISTRATION OF MARRIAGE

(2) The names in both the indices shall be arranged alphabetically.

17. Procedure for obtaining certified copy/copies.—Any person desirous of obtaining certified copy or copies of
a memorandum of marriage, a certificate of registration of a marriage or an order of refusal for registration of a
marriage shall make an application for the same in Form “V” and pay to the Registrar fees as specified in the Table
for each copy.

18. Custody and preservation of registers and records etc.—(1) All registers maintained by the Registrars and
the Registrar-General and the indices maintained by the Registrar-General shall preserved permanently.

(2) The records and papers mentioned below shall be destroyed after the expiry of the period specified against
them.

Sl. No. Nature of Records and papers Period years

1 2 3

1. Receipt Book (foils) 5 years

2. Postal acknowledgment receipt in 5 years

respect of duplicate of memoranda sent
to the Registrar-General

3. Application for extracts from the 5 years

Registers

4. Accounts of blank books and Forms 3 years

5. Cash Book 5 years

6. The Registers and applications and 2 years

other records not covered under above
items

FORM T

[See sub-rule (1) of rule 4]

APPLICATION FOR FILING MEMORANDUM OF MARRIAGE

To,

The Registrar of Marriages,

Subject—Registration of marriage.

Sir,

Marriage has been solemnized between us on………at………and we request that the following particulars of our
marriage be entered in the Register of Marriages and that a Certificate of Registration of Marriage be issued to us.

We hereby declare,
1. that a valid marriage was solemnized between us and that the marriage is, capable of being registered
under section 11 of the Gujarat Registration of Marriages Act, 2006 (Guj. 16 of 2006);
2. that the conditions laid down in the Personal Marriage Act have been satisfied;
3. that the particulars given in application are true to the best of our knowledge and belief, and
4. that a memorandum of marriage duly filled in (in duplicate) alongwith the prescribed fees and documents,
is enclosed herewith.
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APPENDIX II REGISTRATION OF MARRIAGE

Signature.................

(Husband)

.................................

(Wife)

Place:

Date:

Enl.— (1) Memorandum of Marriage.

(2) Prescribed fees.

(3) Other, documents—(a).....................

(b) .....................

(c) .....................

FORM ‘II’

[See sub-section (2) of section 11 and sub-rules (5) and (6) of rule 4]

GOVERNMENT OF GUJARAT
Certificate of Registration of Marriage

(Under the Gujarat Registration of Marriage Act, 2006)

No……………..

This is to certify that Shri..............................................................(Name of husband) S/o Shri.................residing

at....................................and Smt.................................. (Name of the wife) D/o Shri.......................................residing
at..................................have furnished the particulars in Memorandum declaring that their marriage has been
solemnized on....................at............................ (place) and that the same has been registered this
day........................of.......................20.....at Serial No...................of volume....................of Register of Marriages
maintained under the Gujarat Registration of Marriages Act, 2006 (Guj. 16 of 2006).

Place: :.......................... Signature.....................

Date: .......................... Registrar of Marriage

SEAL

FORM ‘III’

[See sub-section (2) of section 8 and sub-rule (7) of rule 4]

ORDER OF REFUSAL FOR REGISTRATION OF MARRIAGE

No......................

I, Registrar of Marriages, .....................after scrutiny of memorandum and other documents submitted with the same
and after hearing the parties on the.....................day of..........20.............refuse to register the marriage for the
following reasons:
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APPENDIX II REGISTRATION OF MARRIAGE

.............................................................................................................................................................

Place: :.......................... Signature.....................

Date: .......................... Registrar of Marriage

SEAL

FORM ‘IV’

[See sub-section (1) of section 11 and sub-rule (1) of rule 10]

Register of Marriage

Register of Marriages for the Year....................

Sl. No. Date of marriage and Name of husband His age at the time of Religion of Husband
place of marriage and his address marriage
1 2 3 4 5

Name of wife and her Her age at the time of Religion of wife Date of Registration Remarks/Grant of
address marriage Certificate/Refusal to
Register
1 2 3 4 5

FORM V
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APPENDIX II REGISTRATION OF MARRIAGE

[See sub-rule (2) of rule 11 and rule 17]

APPLICATION FOR OBTAINING CERTIFIED COPY/COPIES

From:

(Name and address of the person(s) Date:

To,

The Registrar of Marriages,

Subject: Certified copy/copies

Sir,

I, the undersigned, humbly request you that—

(1) the.......................(please write the number) certified copy/copies of the following document(s) may please
be provided to me at the earliest.
*(a) a memorandum of marriage
*(b) a, certificate of registration of a marriage
*(c) an order of refusal for registration of a marriage
*(d) the extract of the register of marriage.
(2) Other particulars—
(i) Date of registration of marriage..........................................................................
(ii) Date and No. of a certificate of registration of marriage.............................
(iii) Date and No. of an order of refusal for registration of a marriage...............
(iv) Name of the husband..........................................
(v) Name of the wife..............................................................
(3) The fees of Rs............... (rupees...............) is enclosed herewith.

Place:Yours faithfully

Date:

TABLE

FEES

[See sections 7, 9 and 12 and rules 4, 5, 8, 11 and 17]

1. Fees for following purposes:

Item Fee
(a) With every memorandum of marriage—

(i) If memorandum of marriage submitted within 30 days from Rs. 5.00

the date of marriage

(ii) If memorandum of marriage submitted after the expiry of Rs. 15.00

the period of thirty days but within three months from the date
of the marriage
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APPENDIX II REGISTRATION OF MARRIAGE

Item Fee
(iii) If memorandum of marriage submitted after the expiry of Rs. 25.00
the period of three months from the date of the marriage

(b) With an appeal to the Registrar-General— Rs. 100.00

(c) For inspecting Registrar of Marriage

(i) search of the current year Rs. 15.00

(ii) search of any previous year or years Rs. 5.00 per year (In addition to Rs. 15.00)

(d) for a certificate regarding no record of registration of Rs. 25.00

marriage

2. Fees for grant of certified copy/copies:

Item Fee
(a) For every certified copy of a Rs. 30.00 per copy
memorandum of marriage

(b) For every certified copy of a certificate of Rs. 10.00 per copy
registration of a marriage

(c) For every certified copy of an order of Rs. 30.00 per copy
refusal for registration of a marriage

(d) For every certified copy of extract of Rs. 10.00 per copy
Registrar

6. HIMACHAL PRADESH
THE HIMACHAL PRADESH REGISTRATION OF MARRIAGES RULES, 20041

WHEREAS the draft “Himachal Pradesh Registration of Marriage Rules, 2004” were published in the Rajpatra,
Himachal Pradesh (Extraordinary), dated 14th June, 2004 vide this Department Notification of even number dated
28th May, 2004 in pursuance of the provisions of section 22 of the Himachal Pradesh Registration of Marriages Act,
1996 (Act No. 21 of 1997) for inviting objection(s) and suggestion(s) from the general public.

AND WHEREAS no objection(s) or suggestion(s) has been received within the stipulated period in this behalf.

NOW, THEREFORE, the Governor of Himachal Pradesh, in exercise of the powers conferred by section 22 of the
aforesaid Act, is pleased to make the following rules, namely.—

1. Short title.—These rules may be called the Himachal Pradesh Registration of Marriages Rules, 2004.

2. Definitions.—(1) In these rules, unless the context otherwise requires,—

(a) “Act” means the Himachal Pradesh Registration of Marriages Act, 1996 (Act No. 21 of 1997);
(b) “State Government” means the Government of Himachal Pradesh;
(c) “Form” means of the form appended to these rules; and
(d) “section” means the section of the Act.

(2) The words and expressions used but not defined in these rules shall have the same meanings as
assigned to them in the Act.
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APPENDIX II REGISTRATION OF MARRIAGE

3. Duties of Chief Registrar of Marriages/District Additional Registrar of Marriages.—

(1) The Chief Registrar of Marriages shall have the following duties and powers namely.—
(a) He shall have over all control over the District Registrar of Marriages, Additional Registrar of Marriages
and Registrar of Marriages;
(b) He shall cause to be implemented the directions issued by the State Government or himself through
District Registrar, Additional Registrar or Marriages;
(c) He may call for any information from the District Registrar, Additional Registrar and Registrar of
Marriages;
(d) He may inspect records, registers and accounts lying with District Registrar, Additional Registrar and
Registrar of Marriages;
(e) He shall submit annual report to the State Government by 31st March of succeeding year in Form II;
and
(f) He shall supply forms and registers to the Registrar of Marriages.
(2)
(a) The District Registrar of Marriages shall have overall control over the offices of Additional Registrar of
Marriages and Registrar of Marriages within his jurisdiction;
(b) He shall cause to be implemented the directions issued by the State Government or the Chief
Registrar of Marriages or by himself through the Additional Registrar of Marriages and Registrar of
Marriages;
(c) He may inspect records, registers and accounts lying with Additional Registrar of Marriages and
Registrar of Marriages; and
(d) The Additional Registrar of Marriages shall have overall control over the office of the Registrars of
Marriage within his jurisdiction.

4. Fee for registration of marriage.—(1) Memorandum for marriage under sub-section (1) of section 8 shall be
accompanied by registration fee of Rs. 5, if memorandum for registration of marriage is received after the expiry of
thirty days but before ninety days, a registration fee of Rs. 10 shall be charged as registration fee:

Provided that if the marriages which have not been registered within one year of its occurrence, the same shall be
registered only on an order made by Magistrate of the 1st Class after verifying the correctness of marriage on
payment of fee of Rs. 50 by the Registrar of Marriages.

(3) The registration fee shall be deposited either in cash or through money order in favour of Registrar of Marriages
and on receipt of such fee the Registrar of Marriages shall issue a receipt in Form IV.

(4) The memorandum for registration of Voluntary Marriage shall be accompanied by a fee of Rs. 10 if the same is
sent or delivered after the expiry of 30 days from the date of marriage.

(5) The memorandum for registration of foreign marriage shall be accompanied by a registration fee of Rs. 100.

5. Supply of Forms of memorandum.—Forms of Memorandum of Marriage shall be supplied free of charge to the
parties of a marriage by the Registrar of Marriages.

6. Maintenance of Record.—(1) The Registrar of Marriages shall maintain a Marriage Registration Register in
Form I.

(2) No correction or over writing shall be made in the Register of Marriage. However under unavoidable
circumstances, the Registrar of Marriages shall record in writing the reasons for any correction, overwriting made in
the Marriage Register in the remarks columns of Register of Marriage, with the permission of the District Registrar
of Marriages.
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APPENDIX II REGISTRATION OF MARRIAGE

(3) The Registrar of Marriages shall keep the Register of Marriages in a safe custody and the record maintained by
him shall be destroyed after the expiry of the period. Specified in each item under column 3 below namely.—

Sl. No. Name of the record Period

1. 2. 3.
1. Receipt Book 5 years

2. Postal acknowledgement receipts in 5 years

respect of references sent to the Chief
Registrar of Marriages

3. Application for extracts from the Register 5 years

4. Cash Book 5 years

5. Account of forms and registers 3 years

6. Register of Marriage 60 years

7. Issuance of Marriage Registration Certificate.—The Registrar of marriages on demand shall provide the Marriage
Registration Certificate to the concerned person(s) on Form III under his hand seal.

8. Inspection of Registers and obtaining certified copies thereof.—(1) The Register shall be open for inspection for
all members of public. Any person desirous of inspecting the Register of marriage may do so, on an application
made in this behalf to the Registrar on payment of Rs. 10.

(2) Any person desirous of obtaining certified copy of an extract of the Register of Marriage shall make an
application therefore and pay to the Registrar a fee of Rs. 10 for each copy.

9. Money how to be deposited.—The revenue realised as fee shall be deposited in Government Treasury by the
Registrar or Marriages under Receipt Head of Accounts “0235-00-800-03”.

FORM I

MARRIAGE REGISTRATION REGISTER

[See rule 6(1)]

REGISTER OF MARRIAGE FOR THE YEAR

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APPENDIX II REGISTRATION OF MARRIAGE

Sl. No. Date of Name and His age at the Religion and Name and Her age at Religion and Date of Remarks
Marriage and address of time of caste of address of the time of caste of wife Registration
place of husband marriage husband wife marriage of marriage
Marriage
1 2 3 4 5 6 7 8 9 10
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APPENDIX II REGISTRATION OF MARRIAGE

Signature of Registrar of Marriages with stamp

FORM II

[See rule 3(1)(e)]

ANNUAL REPORT UNDER MARRIAGE REGISTRATION ACT TO BE SENT TO GOVERNMENT

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APPENDIX II REGISTRATION OF MARRIAGE

Sl. No. Name of District Name of Tehsil No. of marriages No. of registration Reasons for refusal Remarks
registered during refused
the year
1 2 3 4 5 6 7
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APPENDIX II REGISTRATION OF MARRIAGE

FORM III

MARRIAGE REGISTRATION CERTIFICATE

(See rule 7)

Certified that Shri......................s/o Shri......................r/o.............................has been married to

Smt.................r/o...................d/o...................r/o.................... on............. (date) ....................at village..................P.O.
....................Tehsil........... District.............State.....................and the said marriage has been registered on under
registration No.....................

Issued under my hand and seal on......................

Signature of Registrar of Marriages.

FORM IV

[See rule 4(3)]

RECEIPT

Received a sum of Rs. (in figures Rupees) ........................account of fee for registration of marriage from
Shri/Shrimati.......................son/daughter of Shri ............... resident of...................

Date.....................

Signature of Registrar of Marriages.

7. JAMMU AND KASHMIR

THE JAMMU AND KASHMIR MUSLIM MARRIAGES REGISTRATION ACT, 1981

[Act No. XXII of 1981)

[Dated 7th of May, 1981]

An Act to provide for the Registration of Muslim Marriages and for matters connected therewith.

BE it enacted by the Jammu and Kashmir State Legislature in the Thirty-second Year of the Republic of India as
follows:—

1. Short title, extent and Commencement.—

(1) This Act may be called as the Jammu and Kashmir Muslims Marriages Registration Act, 1981.
(2) It shall extend to the whole of the State.
(3) It shall come into force on such date as the Government may, by notification in the Government Gazette
appoint and different dates may be appointed for different areas of the State.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “Schedule” means a schedule of this Act;
(b) “Sub-Registrar” means a Sub-Registrar appointed under the Registration Act, Samvat 1977;
(c) “Sub-district” means a sub-district formed under the Registration Act, Samvat 1977.

3. Registration of Marriages.—(1) Every marriage contracted between Muslims after the commencement of this
Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony.
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APPENDIX II REGISTRATION OF MARRIAGE

(2) In the case of each such marriage, the duty of causing it to be registered is hereby imposed upon the following
persons concerned in the marriage:—
(a) the bridegroom or the person who consented to the marriage on his behalf;
(b) the bride or the person who consented to the marriage on her behalf; and
(c) the person who conducted the Nikah Ceremony.

(3) It shall be duty of the person specified in sub-section (2) to deliver personally or by registered post a copy of
Nikah-Nama or where no Nikah-Nama is written, a copy of memorandum in the form contained in the Schedule duly
filled in by the person specified in clause (c) of sub section (2) to the Sub-Registrar of the Sub-District in which the
marriage is contracted.

(4) There shall be recorded on every copy of the Nikah-Nama or memorandum, as the case may be, the amount of
dower prompt and deferred separately also the manner of payment thereof.

4. Maintenance and Preservation of Register and Nikah-Nama etc.—Every Sub-Register shall—

(i) preserve in his office copies of all the Nikah-Nama and memoranda received under section 3 and shall
maintain a Register to be called a Register of Muslim Marriages; and
(ii) record or cause to be recorded under his signatures in the Register of Muslim Marriages the particulars of
the Nikah-Namas and memoranda received by him during each calendar year.

5. Person conducting the Nikah Ceremony to record his particular.—Every person who conducts the Nikah
Ceremony shall record on the Nikah-Nama or the memorandum, as the case may be, his full name, parentage, age
and place of residence.

6. Inspection.—The Register of Muslim Marriages maintained by the Sub-Registrar shall at all reasonable times be
open for inspection and shall be admissible as evidence as a public document as defined in Evidence Act, 1977.

7. Non-Delivery of Nikah-Nama or memorandum not to invalidate Nikah.—The Nikah shall be deemed to be

invalid solely by reason of the fact that a copy of the Nikah-Nama or the memorandum, as the case may be was not
delivered to the Sub-Registrar or that the copy of the Nikah-Nama or memorandum delivered to the Sub-Registrar
or that the copy of the Nikah-Nama or memorandum delivered to the Sub-Registrar was defective.

8. Penalty for neglecting to comply with provisions of section 3.—Any person who wilfully omits or neglects to
deliver to the Sub-Registrar of the District a Copy of the Nikah-Nama or the memorandum, as required by section 3,
shall on conviction by a Judicial Magistrate be punished with fine which may extend to three hundred rupees.

9. Power to make Rules.—(1) The Government may make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for any or all
of the following matters, namely—
(a) the form and manner in which Nikah-Namas and memoranda shall be maintained under this Act;
(b) the form and manner in which the registers shall be maintained by the Sub-Registrar under this Act;
(c) the custody in which the register and files and other records are to be kept and the manner in which the
registers, files and records are to be reserved; and
(d) the form and manner in which the receipt of Nikah-Nama and memoranda delivered under section 3 shall
be acknowledged by the Sub-Registrar.

8. KARNATAKA
THE REGISTRATION OF HINDU MARRIAGE (KARNATAKA) RULES, 19661
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APPENDIX II REGISTRATION OF MARRIAGE

In exercise of the powers conferred by sub-section (1) of section 8 of the Hindu Marriage Act, 1955 (Central
Act 25 of 1955), the Government of Mysore hereby makes the following rules, namely:—

1. Title.—These rules may be called the Registration of Hindu Marriage (Karnataka) Rules, 1966.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) ‘Act’ means the Hindu Marriage Act, 1955;
(b) ‘form’ means a form appended to these rules;
(c) ‘marriage’ means a marriage between any two Hindus fulfilling the conditions of sections 5 and 7;
(d) ‘Memorandum’ means a memorandum of marriage mentioned in rule 4;
(e) ‘priest’ means any person who solemnizes a marriage;
(f) ‘register’ means a Hindu Marriage Register kept under these rules;
(g) ‘Registrar’ means a Registrar of Hindu Marriage appointed under these rules;
(h) ‘Registrar-General’ means the Registrar-General of Births, Deaths and Marriages appointed under any law
for the time being in force relating to the registration of births, deaths and marriages;
(i) ‘section’ means a section of the Act.

3. Appointment of Registrars.—(1) The State Government may appoint either by name or by virtue of their office,
so many persons as it thinks necessary to be Registrars for such local areas as it may specify.

(2) The Registrars shall be under the general control and superintendent of the Registrar-General.

4. Registration of Marriages.—1[(1) The parties to a Hindu marriage may have the particulars relating to their
marriage entered in a register and prepare and sign a memorandum in Form I in duplicate and either deliver them in
person or send them by registered post to the Registrar of the area in which the marriage took place.]

(2) Every such memorandum shall be delivered or sent within one year of the marriage.

(3) The memorandum and its duplicate may also be signed by the officiating priest, if any.

(4) On receipt of the memorandum and the duplicate, the Registrar shall make an endorsement in Form II on the
reverse and then the memorandum in the register which shall be in the form of a paste book consisting of blank
butts serially numbered, beginning with figure 1.

5. Duplicates to be forwarded to the Registrar-General.— (1) On or before the fifth day of each month the
Registrar shall send by registered post to the Registrar-General all duplicate copies of the memoranda received by
him during the preceding month, affixing at the end of the last of such copies a certificate in Form III.

(2) On receipt of such duplicates, the Registrar-General shall file them by pasting them in a register similar in form
to be maintained by the Registrar under rule 4 and cause indices of the entries in Form IV and Form V kept in his
office.

6. Registrar to maintain indices.— Every Registrar also shall maintain in Form IV and Form V indices of the
entries made by him in the register.

7. Registrar’s power to require parties to rectify defects in memorandum, etc .—2[(1) If any memorandum
received by a Registrar under rule 4 is not accompanied by the duplicate thereof or is defective in any respect, the
Registrar may require the parties to the marriage to furnish the duplicate or to remedy the defect within such
reasonable time as he may specify.]

(2) Where any memorandum received by him relates to a marriage that has taken place outside the limits of his
jurisdiction, the Registrar shall forward such memorandum to the Registrar having jurisdiction under intimation to
the parties concerned.
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APPENDIX II REGISTRATION OF MARRIAGE

8.1[Grant of certified extracts of register.]—Certified extracts from the registers shall, on application, be given by the
Registrar on payment of a fee of two rupees for each extract.

9. Crediting of fees, etc.—For every fee paid under these rules a receipt in Form VI shall be issued and such fee
shall be credited to the State Government’s account.

10. Supply of forms.—(1) Blank forms of memorandum shall be supplied free of charge to the parties to a marriage
by the Registrar.

(2) The Registrar may also supply free of charge to any priest, talathi, secretary of a village panchayat or school
teacher a reasonable number of blank forms provided that such priest, talathi, secretary or school teacher
undertakes to render an account of the forms whenever called upon to do so.

(3) The Registrar-General shall arrange to get the forms printed at the Government Press and supply the same to
all the Registrars in the State.

11. The custody and preservation of registers and records, etc.—(1) The Registrar shall certify on the title page of
every blank register issued to him the number of pages contained in the register and also note the date on which it
was received and opened by him.

(2) All registers maintained by the Registrar and the Registrar-General and the indices maintained by the Registrars
and Registrar-General shall be preserved permanently.

(3) The following records and papers shall be destroyed after the expiry of the period specified against
them:—

(i) Receipt Book foils ... … 5 years

(ii) Postal acknowledgment receipts in … 5 years

respect of duplicates of memoranda sent
to the Registrar-General …

(iii) Application for extracts from the … 5 years

Registrar …

(iv) Accounts of blank books and forms … … 5 years

(v) Cash Book … … 5 years

FORM I

[See rule 4]

MEMORANDUM OF MARRIAGE

1. Date of marriage.
2. Place of marriage (with sufficient particulars to locate the place).
3.
(a) Full name of the bridegroom.
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Status of the bridegroom at the time of marriage - whether unmarried/widower/divorced.
(f) Signature of the bridegroom, with date.
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APPENDIX II REGISTRATION OF MARRIAGE

4.
(a) Full name of the bride.
(b) Her age.
(c) Usual place of residence.
(d) Address.
(e) Status of the bride at the time of marriage - whether unmarried/widow/divorced.
(f) Signature of the bride, with date.
5.
(a) Full name of the 1[father/mother] or guardian of the bridegroom.
(b) 1[His/Her] age.
(c) Address.
(d) Signature of the 1[father/mother] or guardian of the bridegroom, with date.
6.
(a) Full name of the 1[father/mother] or guardian of the bride.
(b) His/Her age.
(c) Address.
(d) Signature of the 1[father/mother] or guardian of the bride, with date.
7.
(a) Full name of the officiating priest.
(b) His age
(c) Usual place of residence,
(d) Address
(e) Signature of the officiating priest, if any, with date.

FORM II

[See rule 4(2)]

ENDORSEMENT TO BE MADE ON THE REVERSE OF EACH MEMORANDUM AND DUPLICATE

The Memorandum 2[was] received by me on........... 20........... and this memorandum is filed at Serial
No................... on page................ ......................... of volume of the

Register of Marriages maintained under the Hindu Marriage Act, 1955 (25 of 1955).

Date...................... (Signature)

Registrar of Marriages

FORM III

[See rule 5(1)]

CERTIFICATE AFFIXED TO MEMORANDUM

Certified that the above which contains Serial No. ................to Serial No. .................. are duplicate copies of all the
memoranda filed in the register maintained by me under the Hindu Marriage Act, 1955 (25 of 1955) during the
month of....... .........20.............
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APPENDIX II REGISTRATION OF MARRIAGE

Dated the.......................day of..........................20.........

Registrar of Ma rriages

FORM IV

[See rule 5(2) and rule 6]

INDEX OF REGISTERS

INDEX No. I

(Husband)

1. Name of husband.
2. Place of residence.
3. Name of wife.
4. Place of residence.
5. Place of marriage.
6. Date of marriage.
7. Reference to memoranda.

FORM V

[See rule 5(2) and rule 6]

INDEX OF REGISTERS

INDEX No. II

(Wife)

1. Name of wife.
2. Place of residence.
3. Name of husband.
4. Place of residence.
5. Place of marriage.
6. Date of marriage.
7. Reference to memoranda.

FORM VI

[See rule 9]

RECEIPT

Under Hindu Marriage Act, 1955 (25 of 1955)

Received fees as follows: Rs. P.

1[***]

2[For certified extract from the Register]

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APPENDIX II REGISTRATION OF MARRIAGE

Place.................

Date................. Registrar of Marriages

9. KERALA
(1) THE KERALA HINDU MARRIAGE REGISTRATION RULES, 19571

In exercise of the powers conferred by sub-section (1) of section 8 of the Hindu Marriage Act, 1955 (Central Act 25
of 1955), the Government of Kerala hereby makes the following Rules for the registration of the Hindu Marriage
namely:—

1. Short title.—These rules may be called the Kerala Hindu Marriage Registration Rules, 1957.

2. Commencement.—They shall come into force on such date as the Government may by notification in the
Gazette appoint.

3. Definitions.—In these Rules, unless the context otherwise requires,—

(a) ‘Registrar-General’ means the Registrar-General of Births, Deaths and Marriages appointed by the
Government under section 6 of the Births, Deaths and Marriages Act, 1886 (Central Act 6 of 1886).
(b) ‘Local Registrar’ means any person appointed by Government in accordance with Rule 4 to be Registrar of
Marriages for—
(i) the whole or part of the local area comprised within the limits of Trivandrum City, or
(ii) the whole or part of a local area comprised in any municipality in Kerala State established under the
provisions of law for the time being in force, or
(iii) the whole or part of a revenue village or group of Revenue villages.
(c) ‘Local registration area’ means the jurisdiction assigned to a Local Registrar;
(d) ‘Compulsory Registration Area’ means the Local Registration Area in which registration of marriages is
declared by the Government to be compulsory in accordance with sub-section (2) of section 8;
(e) ‘Marriage’ means a marriage solemnized in accordance with the provisions of the Act;
(f) ‘Register’ means the Hindu Marriage Register kept in Form II in accordance with section 8;
(g) ‘Act’ means the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(h) ‘Section’ means a section of the Act;
(i) “The Government” means the Government of Kerala;
(j) ‘Inspecting Officer’ means any officer deputed by the Registrar-General to inspect the marriage records;
(k) ‘Form’ means a form appended to these Rules;

4. Government may appoint by notification in the Gazette any person by name or by virtue of the office held by him
to be a “Local Registrar” and define “the Local Registration Area” constituting his jurisdiction.

5. The Local Registrar shall, unless permitted otherwise by the Registrar-General reside within his jurisdiction and
maintain an office at the outdoor of which shall be displayed a signboard indicating his designation and hours of
business.

6. As soon as may be possible and not later than 15 days after the solemnization of a marriage, the husband may
and in compulsory registration area shall give or cause to be given a report about the marriage in Form No. I (in
original and duplicate) to the Local Registrar in whose jurisdiction the marriage was solemnized. The report may be
sent by registered post or delivered personally or through messenger. In case a marriage report is delivered
personally or through messenger, the Local Registrar shall, give a receipt indicating the fact of his having received
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APPENDIX II REGISTRATION OF MARRIAGE

the report. The date on which the marriage report was received shall be indicated in the receipt as also in the
marriage report and attested by the initials of the Local Registrar.

7. The Local Registrar shall after verifying the entries in the marriage report referred to in rule 6 for accuracy and
completeness, enter the various particulars in a Register in Form II and attest his signature in the space specified
therein. The entries relating to each marriage shall be given serial numbers consecutively beginning with first day of
January and ending with the last day of December.

8. The register referred to in rule 7 shall be a bound book the pages of which are machine-numbered.

9. No correction of the entries in the Register shall be made without the concurrence of an ‘Inspecting Officer’,
changes in material particulars like name, age, date, etc., shall be done invariably only after obtaining the sanction
of the Registrar-General.

10. (1) The Local Registrar shall, within a week after the close of each month, despatch the duplicates of the
marriage reports received and registered by him and forward the same to the Registrar-General:

Provided that if it is directed by the Registrar-General that the duplicate report shall be forwarded through a
specified authority the reports shall be forwarded through the authority so specified.

(2) The originals of the marriage report received by the Local Registrar shall be filed by him as permanent record.

11. The Registrar-General shall have all the duplicate marriage reports received from the Local Registrars
scrutinised for accuracy and completeness and file them in his office as permanent record.

12. The Registrar-General shall cause indexes of marriage reports received by him being prepared and maintained
in his office. The index registers shall be bound books, the pages of which are machine-numbered and may be kept
open for inspection by any person who desires to do so during office hours.

13. Application for certified extract of the Register shall fulfil the following conditions:—
(i) it shall be addressed to the Registrar-General or Local Registrar;
(ii) it shall contain the name of the parties to the marriage, the name and address of the applicant and the
place and the date of the marriage;
(iii) court-fee stamp to the value of one Rupee shall be affixed to it.

14. The Local Registrar shall prepare and grant the extract under the signature and seal in Form No. III:

Provided that if the Registrar-General directs that the extract shall be counter-signed by any authority duly specified
by him before delivery to the applicant the Local Registrar shall comply with such direction.

15. (1) The Registrar-General may authorise any officer to be an “Inspecting Officer” for the purposes of the rules,
and assign the jurisdiction of such Inspecting Officer, subject to approval of Government.

(2) Regular periodical inspection of the Registers and connected records kept by the Local Registrars shall be done
by the Inspecting Officers in accordance with the instructions of the Registrar-General.

(3) The Registrar-General shall arrange for the printing and supply of forms of registers required for use by Local
Registrars.

16. (1) Notwithstanding any of the provisions contained in these rules the failure by a party to a marriage to comply
with a direction in rule 6 shall, if the marriage had been solemnized in a compulsory registration area, be punishable
on conviction by a Magistrate with fine which may extend to twenty-five rupees.

(2) Prosecutions of offences referred to in sub-rule (1) shall be instituted only with the sanction of the Registrar-
General.

(3) The rules passed by Government under any other enactment for the time being in force for the registration of
marriage of any section of the Hindus shall, for “compulsory registration areas”, stand repealed.
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APPENDIX II REGISTRATION OF MARRIAGE

FORM NO. I

Received on...............................................

Initials of Local Registrar.......................

Place of marriage...

Taluk...............

Town .............

Village..............

Date of marriage...............

Particulars Husband Wife

Name Age A.B.C.D.

Birth Place (if available)

Civil condition (at the time of marriage) Occupation

Residence

Name of father or guardian

We hereby declare that the particulars specified above are correct to the best of our knowledge.

Signature of Husband Signature of Wife

(If the wife is a minor, signature of legal guardian at the time of

marriage)

Two witnesses: 2. Name

1. Name Address

Address Signature

Signature

Registered as No. Date Signature of Local Registrar Date

FORM NO. II

[See rule 7]

Place of marriage.....................

Taluk..............

Town...............

Village.............

Date of marriage..................
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APPENDIX II REGISTRATION OF MARRIAGE

Particulars Husband Wife

Name Age A.B.C.D.

Birth place (if available) Unmarried/Unmarried/

Civil condition at the time of marriage: Widower/Widow

Divorcee Divorcee

Occupation

Residence

Name of father or guardian

We hereby declare that the particulars specified above are correct to the best of our knowledge.

Signature of Husband Signature of Wife

(If the wife is a minor, signature of legal guardian at the time of

marriage)

Two witnesses: 1. Name Address Signature 2. Name Address Signature

Registered as No. Date ... Signature of Local Registrar Date

FORM NO. III

[See rule 14]

CERTIFICATE OF MARRIAGE

Place of marriage.........................

Taluk...........

Town.............

Village............

Date of marriage...................

Particulars Husband Wife

Name Age A.B. C.D.

Birth place

Civil condition

Occupation

Residence

Name of father or guardian

Witnesses:
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APPENDIX II REGISTRATION OF MARRIAGE

Particulars Husband Wife

1. Name 2. Name

Address Address

Registered as No Date

Date of extract Number

Signature of Local Registrar

(2) THE KERALA REGISTRATION OF MARRIAGES (COMMON) RULES, 20081

WHEREAS the Hon’ble Supreme Court of India, in its Judgment dated 14-2-2006, in Seema v. Ashwani Kumar,2 has
directed all State Governments to issue rules for making registration of marriages solemnized in the respective
States compulsory irrespective of the religion after calling objection and suggestion;

AND WHEREAS, the Government of Kerala, in response to the Draft Kerala Registration of Marriages (Common)
Rules, 2006 published in the Gazette Extraordinary No. 1835, dated 16-11-2006, have received various objections
and suggestions from the general public, religious denominations. Department Heads etc.;

NOW, THEREFORE, the Government of Kerala, after considering all objections and suggestions hereby publish “The
Kerala Registration of Marriages (Common) Rules, 2008” for the information of the general public, namely:—

1. Short title, extent and commencement.—

(1) These rules may be called the Kerala Registration of Marriages (Common) Rules, 2008.
(2) These rules shall extend to the whole of the State of Kerala.
(3) They shall come into force at once.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Chief Registrar-General” means Chief Registrar-General of Marriages (Common) appointed under rule 3.
(b) “Local Registrar” means Local Registrar of Marriages (Common) appointed under rule 5.
(c) “Registrar-General” means Registrar-General of Marriages (Common) appointed under rule 4.

3. Chief Registrar-General of Marriages (Common).—The Director of Panchayats shall be the Chief Registrar-
General of Marriages (Common).

4. Registrar-General of Marriages (Common).—The Deputy Director of Panchayats and the Joint Director of
Urban Affairs shall, respectively be the Registrar-General of Marriages (Common) in respect of Panchayat and
Urban areas and they shall supervise the implementation of these rules.

5. Local Registrar of Marriages (Common).—The Registrars of Births and Deaths appointed under the
Registration of Births and Deaths Act, 1969 (Central Act 18 of 1969) shall be the Local Registrar of Marriages
(Common) in their respective areas of jurisdiction.

6. Marriages Compulsorily Registrable.—All marriages solemnized in the State after the commencement of these
rules shall compulsorily be registered irrespective of religion of the parties:

Provided that the marriages, the registration of which is compulsory under any other statutory provisions, need not
be registered under these rules and such marriages shall be registered under the respective statutory provisions:

Provided further that marriages, the registration of which is optional as per any other statutory provisions shall be
registered under these Rules unless registered under such statutory provisions:

Provided also that the registration of marriages solemnized prior to the date of commencement of these Rules shall
be optional.
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APPENDIX II REGISTRATION OF MARRIAGE

7. Jurisdiction.—Marriages shall be registered under these rules with the Local Registrar within the local area of
whose jurisdiction the marriage is solemnized.

8. Maintenance of Register of Marriages (Common).—Local Registrar shall maintain a Register of Marriages

(Common) in Form No. III appended to these rules.

9. Procedure and time-limit for registration.—(1) The parties to a marriage shall prepare a memorandum in
duplicate in Form No. I appended to these rules along with two separate sets of photos and shall submit the same
to the Local Registrar within a period of forty-five days from the date of solemnization of their marriage.

(2) The memorandum for registration of marriages solemnized before the commencement of these rules may be
submitted within a period of 1[two years] from the date of commencement of these rules.

(3) The memorandum shall be signed by both the parties to the marriage and two other persons who witnessed the
marriage. In the case of a marriage solemnized before a Marriage Officer appointed under any statutory provisions,
the entries made in the Register of Marriages or any other register maintained for this purpose and certified by the
Marriage Officer and in the case of a marriage solemnized as per religious rites, a copy of the certificate of marriage
issued by the religious authority concerned may be a document in proof of the marriage. A registration fee of rupees
ten shall be payable along with the submission of the memorandum for registration.

(4) Marriages solemnized after the commencement of these rules, in respect of which no memorandum is filed
within the period of forty-five days and a period of one year has not expired from the date of such solemnization,
may be registered subject to sub-rule (3) by the Local Registrar after imposing a fine of rupees one hundred. In
such cases the memorandum shall be filed together with a declaration from a Gazetted Officer/Member of
Parliament/Member of Legislative Assembly/Member of a Local Self-Government Institutions in Form No. II
appended to these rules or with any other document to prove the solemnization of the marriage to the satisfaction of
the Local Registrar.

10. Registration of marriages after one year.—Marriages solemnized after the commencement of these rules in
respect of which no memorandum for registration is filed within one year of its solemnization and marriages
solemnized before the commencement of these rules in respect of which no memorandum for registration was filed
1[before the expiry of two years] after such commencement shall, subject to sub-rule (3) of rule 9, be registered, by

the Local Registrar with the permission of the Registrar General concerned and on payment of a fine of rupees two
hundred and fifty. In such cases also the memorandum shall be filed together with a declaration from a Gazetted
Officer/Member of Parliament/Member of Legislative Assembly/Member of Local Self-Government Institutions in
Form No. II appended to these rules or with any other document to prove the solemnization of marriage to the
satisfaction of the Registrar-General concerned. The Registrar-General concerned may conduct, if necessary,
enquiries, through the Local Registrar or otherwise and give suitable direction to the Local Registrar regarding
registration.

11. Filing of Memorandum and Register of Marriages (Common).—(1) On receipt of a memorandum and the
prescribed fee for registration, the Local Registrar shall verify the entries in the memorandum for its accuracy and
completeness, and enter the particulars thereof forthwith in the Register of Marriages (Common) maintained by him
for this purpose in Form No. III appended to these rules and affix his signature and seal in the space provided
therefor. A certificate of marriage shall be issued to the applicant in Form No. IV appended to these rules in proof of
registration of the marriage on payment of fee of rupees five, within five working days. The entries relating to each
marriage shall be given Registration Numbers consecutively for each calendar year and separate registers shall be
maintained for each calendar year.

(2) Local Registrar may, for reasons to be recorded, in writing reject the memorandum for registration if it is not in
proper form or not accompanied by the requisite fee and shall intimate the reason to the parties concerned, within a
period of thirty days from the date of such rejection.

(3) The Local Registrar shall forward the duplicate copies of the memorandum received in a month to the Registrar-
General concerned before the 10th day of every subsequent month. The originals of the memorandum received by
the Local Registrar and duplicate copies forwarded to the Registrar-General concerned shall be filed as permanent
records.
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APPENDIX II REGISTRATION OF MARRIAGE

12. Printing and supply of Forms.—The Registrar-General shall arrange for the printing and supply of Forms and
Registers required for use by Local Registrars coming under their respective areas of jurisdiction.

13. Correction and cancellation of entries.—(1) If the Local Registrar is satisfied either suo motu or on
application by the parties, that any entry in the Register of Marriages (Common) is erroneous in form or substance
or has been fraudulently or improperly made, he shall subject to conditions in sub-rule (2), make suitable
corrections including cancellation of registration, noting the evidence for such corrections in the margin of the
Register of Marriages (Common), without any alteration of the original entry and shall sign the marginal entry with
the date of correction or cancellation and shall forward the particulars of the corrections to the Registrar-General
concerned.

(2) All corrections in material particulars like name, age, date etc., and cancellation shall be done only with the
sanction of the Registrar-General concerned:

Provided that no such correction or cancellation shall be made without affording a reasonable opportunity of being
heard to the parties concerned.

(3) On getting sanction under sub-rule (2), the Local Registrar shall effect the correction or cancellation, as the case
may be, in the Register of Marriages (Common).

(4) An amount of rupees one hundred shall be charged as fee for making corrections in the Register of Marriages
(Common) other than clerical mistakes.

(5) In every case in which an entry is corrected or cancelled under this rule, intimation thereof shall be sent to the
parties to the marriage and the Local Registrar shall make a report giving necessary details to the Registrar-
General concerned.

14. Search and obtaining of extracts of the entries.—Any person may, upon an application and after remitting a
fee of rupees twenty-five for this purpose, cause a search to be made by the Local Registrar for any entry in the
Register of Marriages (Common) and obtain a Certificate of Marriage in Form No. IV, appended to these rules
containing an extract of such register. The Local Registrar shall certify all such extracts.

15. Consequences of non-registration.—After the commencement of these rules, the Government shall not
accept for any purpose, any certificate of marriage issued by any authority other than those authorized under these
rules or under any other statutory provisions. However this provision is not applicable to the marriages solemnized
before the commencement of these rules.

16. Appeal.—An appeal shall lie to the Registrar-General concerned against any decision of the Local Registrar
and such appeal shall be filed within a period of three months from the date of communication of any such decision.
However, the Registrar General concerned may condone the delay on sufficient grounds. He shall consider the
appeal and dispose of the same within a period of sixty days either confirming the decision of the Local Registrar or
allow the appeal after hearing the parties concerned.

17. Revision.—A revision shall lie to the Chief Registrar-General against the decision of the Registrar-General
concerned and such revision shall be filed within a period of three months from the date of communication of such
decision. However, the Chief Registrar-General may condone the delay on sufficient grounds. He shall consider the
revision and dispose of the same within a period of sixty days either confirming the decision of the Registrar-
General or allow the revision after hearing the parties concerned.

FORM NO. I

[See rule 9(1)]

MEMORANDUM FOR REGISTRATION OF MARRIAGE

1. Date of
Marriage:
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APPENDIX II REGISTRATION OF MARRIAGE

2. Place of Local area Village Taluk District

Marriage: (specify
hall, mandapam
etc.)

.................. .................. .................. .................. .................. ..................

Photo of the Photo of the Wife to be affixed

Husband to be
affixed

3. Details of Parties to the Marriage (As on the date of marriage)

Details Husband Wife

(a) Name in full (in

capital letters)

(b) Nationality

(c) Age and date

of birth (sufficient
proof shall be
produced)

*Put (√) mark on whichever is applicable.

4. Witness of solemnization of marriage

1.
(a) Name:
(b) Address:
(c) Signature with date:
2.
(a) Name:
(b) Address:
(c) Signature with date:

5. Details of records of marriage required under rule 9/rule 10, if any:

Declaration of the Parties

We……………….do hereby declare that the details shown above are true to the best of our knowledge and belief.

Signature of the Parties:

Place:1. Husband

Date:2. Wife

(For Office Use)

Received by Post/in Person on……………………

Local Registrar.
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APPENDIX II REGISTRATION OF MARRIAGE

Registered in the Register of Marriages (Common) on.................... as............. Regn. No...............................

Local Registrar.

FORM NO. II

[See rule 9(4) and rule 10]

DECLARATION OF MP/MLA/GAZETTED OFFICER/MEMBER OF LOCAL SELF-GOVERNMENT INSTITUTIONS

(IN CASE OF APPLYING FOR REGISTRATION AFTER ONE YEAR)

I.........................................................hereby certify that the marriage

between....................................and.............................was solemnized on..........

..........and the fact is personally known to me.

Signature with place and date

FORM NO. III

(See rule 8)

REGISTER OF MARRIAGES (COMMON)

1. Date of Marriage:

2. Place of Marriage: Local area Village Taluk District

(specify hall,
mandapam etc.)

..................................... .................... .............. ............ ................

..............

Signature of the Husband

Photo of the Husband to be affixed Photo of the Wife to be affixed

Signature of the Wife

3. Details of Parties to the Marriage (As on the date of marriage)

Details Husband Wife

(a) Name in full (capital letters)

(b) Nationality

(c) Age and date of birth

(d) Permanent Address

(e) Present Address

(f) Previous marital status

Married
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APPENDIX II REGISTRATION OF MARRIAGE

Unmarried

Widower

Widow

Divorced

(g) Whether any spouse is living (If yes,

number of spouse living)

(h) Name of father or guardian and the

relationship

(i) Age

(j) Address

(k) Name of mother

(l) Age

(m) Address

4. Witness of solemnization of marriage

Details Husband Wife

1. (a) Name:

(b) Address:

2. (a) Name:

(b) Address:

SPACE FOR OFFICE USE

5. Date of Receipt of memorandum..................................

6. Details of records of marriage required under rule 9/rule 10:

Date. Registration No/(Year).Local Registrar

Date..................

Local Registrar

Folio No.

FORM NO. IV

[See rule 11(1)]

GOVERNMENT OF KERALA

Department of…………………

CERTIFICATE OF MARRIAGE
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APPENDIX II REGISTRATION OF MARRIAGE

[Issued under rule 11(1) of the Kerala Registration of Marriages (Common) Rules, 2008]

Certificate No...............................Dated.........................

This is to certify that the following information has been taken from the Register of Marriages (Common) maintained
in Form No. III in the Office of the local Registrar of ..................................................... (local area)

1. Date of Marriage: ................................................

2. Place of Marriage: ……………..(as in Form No. III)

3. Details of Parties to the Marriage (As on the date of marriage)

Details Husband Wife

(a) Name in full (capital letters)

(b) Nationality

(c) Age and date of birth

(d) Occupation

(e) Permanent Address

(f) Name of parents or guardian and the

relationship

(i) Father

(ii) Mother

(iii) Guardian

Photographs:

(Office Seal covering photographs)

Registration No...................................../(Year)

Date of Registration.............................

Local Registrar

(Name of Local Area)

Issued under my hand and seal on this the ……………. day of………..

10. MADHYA PRADESH

(1) THE MADHYA PRADESH HINDU MARRIAGE REGISTRATION RULES, 19841

In exercise of the powers conferred by sub-section (1) of section 8 of the Hindu Marriage Act, 1955 (25 of 1955),
the State Government hereby makes the following rules for the registration of Hindu Marriage, namely:—

1. These rules may be called the Madhya Pradesh Hindu Marriage Registration Rules, 1984.
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APPENDIX II REGISTRATION OF MARRIAGE

2. In these rules the context otherwise requires,—

(a) “Act” means the Hindu Marriage Act, 1955 (25 of 1955);
(b) “form” means a form appended to these rules;
(c) “marriage” means the Hindu marriage solemnized in accordance with the provisions of the Act;
(d) “Registrar” means the Collector of the district in which the marriage is solemnized and in the event of the
office of Collector becoming vacant or in his absence for whatever reason, any officer who succeeds
temporarily to the executive administration of the district, whether of the rank of Collector or not;
(e) “section” means a section of the Act.

3. (1) Every registrar shall maintain the Hindu Marriage Register which shall be in the form of a paste book,
consisting of blank but serially numbered.

(2) The Registrar shall certify under his signature, on the title page of every blank register maintain under sub-rule
(1), the number of pages actually contained in such register and shall also note the date on which the register was
opened by him.

(3) The register maintained under sub-rule (1) shall be numbered serially beginning with the figure “1”.

4. (1) A party to Hindu marriage which has been solemnized may apply to the Registrar in Form A for registration of
marriage.

(2) Such application shall also bear the signature of the officiating priest, if any.

Explanation.—For the purposes of this rule registration of marriage is not obligatory and non-registration will not
invalidate the marriage in any manner.

5. A fee of rupees five for registration of marriage shall be credited to the Government under the head of
account................. “065-other Administrative service-A Administration of justice Services and Services Fees-vi-
Miscellaneous fees” in Government treasury through a challan and a copy of challan shall be attached to the
application.

6. (1) When an application for registration of a Hindu Marriage is presented before the Registrar by a party to the
marriage, the Registrar shall, subject to the provisions of rule 7 and except when both the parties to the marriage
appear before him personally and are identified to his satisfaction, given notice of the application in Form B to the
other party of the marriage by registered post and make such enquiry of a summary character as he thinks fit
regarding the marriage.

(2) On being satisfied about the fact of marriage, the Registrar shall register the marriage and the application, in a
register maintained in Form C and shall file an application in the Hindu Marriage Register by passing it on the first
blank but available in his current register. The application shall be endorsed by the Registrar with the following
endorsement on the reverse thereof:—

The application alongwith a copy of challan was received by me on...........20....... and the application is filed at
serial No........... of.........20.......on page........of volume......... of the Register of Hindu Marriages, maintained under
the Hindu Marriage Act, 1955 (25 of 1955).

Dated ..............20.....

................................................

(Signature)

Registrar of Hindu Marriages.

7. (1) If any application made to the Registrar under rule 4 is not accompanied by a copy of challan or is defective in
any respect the Registrar shall refuse to entertain the application unless the applicant deposit the said fee through
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APPENDIX II REGISTRATION OF MARRIAGE

challan and produces a copy of it for proof or remedies the defect, as the case may be, within such time as may be
specified by him.

(2) If the Registrar to whom such application is made, has no jurisdiction to entertain the same, he shall send the
application to the Registrar having such jurisdiction and inform the persons making the application accordingly.

(3) If the notice referred to in sub-rule (1) of rule 6 cannot be served or if the Registrar is not satisfied about the
identity of the parties or about the fact of marriage, he shall, by an order in writing, refuse to register the marriage.

8. (1) Any person aggrieved by the order refusing to register a marriage may within thirty days from the date of the
order, appeal to the Commissioner concerned.

(2) The appellate authority shall peruse the memorandum of appeal and register the same and fix a date for hearing
of appeal of which notice shall be issued to the appellant and to the opposite party as also to the officiating priest
and intimation of lodgement of appeal shall also be sent in writing to the Registrar alongwith a requisition for
concerned record.

(3) On the date fixed for hearing of the appeal or on such other date to which the hearing may be adjourned, the
appellate authority shall peruse the record and afford an opportunity to the parties and to the officiating priest of
being heard in person or through their legal practitioner. The appellate authority may in his discretion make such
further enquiry and take such further evidence as he may deem fit and thereafter decide the appeal. A true copy or
order in appeal shall be sent to the Registrar alongwith the record of the case for information and compliance.

(4) If the appellate authority direct making of entry in the Hindu Marriage Register, the Registrar shall make the
necessary entry. The Registrar shall, in all such cases, note the operative portion of the appellate order in the Hindu
Marriage Register.

(5) True copies of order passed in appeal shall be furnished to any person applying for the same on payment of
rupees five as minimum copying charges.

9. (1) Blank forms of application shall, on request, be supplied by the Registrar free of charge to the parties to a
marriage.

(2) The Registrar may also supply free of charge to any priest such number of blank forms as he may deem
reasonable, provided that such priest undertakes to render an account of the forms when he requests for further
supply of such forms.

10. Certified copy of extracts from the register in respect of marriage shall be furnished to any person applying for
the same on payment of rupees five as minimum copying charges.

11. (1) The Registrar or the Commissioner, as the case may be, shall pass the receipt for the amount received by
him as copying charges in Form D.

(2) The amount so received shall be credited to the Government under the head of account “066-Other
Administrative service-A-Administration of justice-C-other receipts-iv-miscellaneous”.

12. The Registrar may delegate all or any of its powers under these rules to the Additional Collector.

13. The Madhya Pradesh Hindu Marriage Registration Rules, 1956 are hereby repealed:

Provided that anything done or any action taken under the rules so repealed shall be deemed to have been done or
taken under the corresponding provisions of these rules.

FORM A

[See rule 4(1)]

To

The Registrar of Hindu Marriages Place................................

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APPENDIX II REGISTRATION OF MARRIAGE

Subject: Application for entry of marriage in Hindu Marriage Register.

Sir,

I,........................... son/daughter of ....................................... age ..............occupation (if any)

............................Address................. ............................................. hereby apply for entering the fact of my marriage
in the Hindu Marriage Register maintained in your office and submit the following particulars namely:—
(1) Date of marriage.
(2) Place of marriage (with sufficient particulars to locate the place).
(3)
(a) Full name of bridegroom.
(b) Full name of his father.
(c) Date of birth and age.
(d) Usual place of residence.
(e) Address.
(f) Status of the bridegroom at the time of marriage whether unmarried/widower/divorcee.

(4)
(a) Full name of the bride.
(b) Full name of her father.
(c) Date of Birth and age.
(d) Usual place of residence.
(e) Address.
(f) Status of the bride at the time of marriage whether unmarried/widow/divorcee.
(5) .
(a) Full name of the Officiating priest (in case marriage is performed by a priest).
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Signature of the officiating priest with date.

2. The requisite fee of Rs. 5 (Five rupees) has been credited into Government Treasury at

(place) .......................... on ....................... copy or related challan is annexed hereto.

Signature of Applicant/Applicants

Verification

I....................................do hereby verify that the particulars of the marriage given above are true to the best of my
knowledge and are believed by me to be true and that no part of the application is false.

Signed and verified this.................day of................. month and year...... at place. .....................................................

.....................................................

Signature of applicant/applicants
 Page 76 of 139
APPENDIX II REGISTRATION OF MARRIAGE

FORM B

[See rule 6(1)]

FORM OF NOTICE

....................................,

(mention full address)

Sir,

Whereas, an application (copy enclosed) for registration of marriage has been presented to the undersigned under
sub-rule (1) of rule 4 of the Madhya Pradesh Hindu Marriage Registration Rules, 1984 by son/daughter of
....................... resident of........................... Tahsil ................... district......................... and the said application had
been fixed for.....................for consideration.

You are hereby noticed to intimate to the undersigned within.............. ............days of the receipt of this notice
whether you admit the correctness of the particulars mentioned in the aforesaid application and whether you have
any objection to the fact of the marriage being entered in Hindu marriage register maintained, under section 8 of the
Hindu Marriage Act, 1955 (25 of 1955).

If no objection is received within the aforesaid period it will be presumed that you have no objection to the
registration of the marriage. You may appear in person on

.....................failing which proceedings are liable to be decided in your absence.

Date.........................

...................................

Registrar of Marriages

FORM C

[See rule 6(2)]

REGISTER UNDER RULE 6(2) OF MADHYA PRADESH HINDU MARRIAGE REGISTRATION RULES, 1984

(Omitted)

FORM D

[See rule 11]

RECEIPT FOR COPYING CHARGES UNDER RULE 11(1) OF THE MADHYA PRADESH HINDU MARRIAGE
REGISTRATION RULES, 1984

Counterfoil Receipt

Serial No...........Date.......... Serial No......... Date.........

Received from Shri/Smt Received from Shri/Smt............

Rs ........... (in words) ............ Rs ...........in words)

as copying charges............... as copying charges...................

Signature Signature
 Page 77 of 139
APPENDIX II REGISTRATION OF MARRIAGE

(2) THE MADHYA PRADESH COMPULSORY REGISTRATION OF MARRIAGES RULES, 20081

WHEREAS, the Supreme Court of India in Transfer Petition (Civil) No. 291 of 2005, Smt. Seema v. Ashwani Kumar in
its order dated the 14th February, 2006 and the 25th October, 2007 has directed to frame rules for compulsory
registration of marriages of all persons irrespective of religion or caste of either party to the marriage.

AND, WHEREAS, the State Government has considered it necessary that suitable rules should be framed in view of
the said order;

AND, WHEREAS, a draft of rules for compulsory registration of marriages was previously published by the notification
of the Government of Madhya Pradesh, Law and Legislative Affairs Department F. No. 6-2-2005-XXI-B (2), dated
the 29th November, 2007 at pages 1141 to 1142(11) of the “Madhya Pradesh Gazette (Extraordinary)” dated the
30th November, 2007;

And whereas, the objections and suggestions were invited till the 29th December, 2007 from all persons likely to be
affected thereby;

And whereas, the objections and suggestions received from the public with respect to the said draft rules have been
duly considered by the State Government.

Now, therefore, in exercise of the powers conferred by section 50 read with section 4 to 14 of the Special Marriage
Act, 1954 (No. 43 of 1954), the State Government, hereby makes the following rules for compulsory registration of
marriages, namely:—

1. Short title, extent, application and commencement.—(1) These rules may be called the Madhya Pradesh
Compulsory Registration of Marriages Rules, 2008.

(2) They extend to the whole of the State of Madhya Pradesh.

(3) These rules shall be applicable for the compulsory registration of marriages and do not override the pervious
rules or notification issued for registration of special marriages but do override the previous rules made under any
other Act pertaining to registration of marriages.

(4) They shall come into force from the date of publication in the Official Gazette.

2. Definitions.—(1) In these rules unless the context otherwise requires,—

(a) “Act” means the Special Marriage Act, 1954 (No. 43 of 1954);
(b) “Marriage” means all marriages solemnized, performed or contracted between a male and female,
irrespective of the religion or caste of either party to the marriage and includes marriages performed as per
law. Custom, practice or any tradition of either party to the marriage and also includes a re-marriage;
(c) “Registrar of Marriages” means a Marriage Officer as specified in section 3 of the Act and appointed under
rule 5 of these rules;
(d) “section” means a section of the Act.

(2) The words and expression used in these rules but not defined, shall have the same meaning as assigned to
them in the Act.

3. Compulsory registration of marriages.—On the commencement of these rules every marriage solemnized or
contracted between citizens of India within the territory of Madhya Pradesh, under any law or custom governing
such marriages shall be compulsorily registered in accordance with these rules.

4 Effect of non-registration of marriage.—On the commencement of these rules the marriage solemnized and
performed under any law or custom and not registered under the provisions of these rules shall not be construed to
be a conclusive proof of the marriage.

5. Registrar of Marriages.—(1) The State Government may, by notification appoint such officers as a Registrar of
 Page 78 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Marriages at Gram Panchayat or Municipality or Municipal Corporation or Cantonment Board areas as it may deem
fit, for the purpose of these rules.

(2) Until the notification is issued under sub-rule (1), the local authority who is competent to register births and
deaths shall be the Registrar of Marriages for local area.

6. Office of Registrar of Marriages.—Every Registrar of Marriages shall have his office and cause his name,
designation and regular working hours to be written in Hindi and displayed in a conspicuous part of the building in
which his office is situated.

7. Registration of Marriages.—(1)
(a) The parties to a marriage shall submit a memorandum in the Form No. I and shall deliver it in person or
send by registered post in duplicate to the Registrar of Marriages of the area where marriage is solemnized
or performed within a period of thirty days from the date of marriage.
(b) The Registrar of Marriages may accept memorandum of the marriage beyond the limitation prescribed, if
party to the marriage establishes that he was prevented by any cause beyond his control.
(c) After examining the memorandum submitted by the parties, the Registrar of Marriages shall enter the
entries of the memorandum in the register specified in Form No. 2.
(d) Each memorandum entered in the Register shall be treated as separate entry and each entry shall be
numbered in a consecutive series which will commence and terminate with each calendar year and a fresh
series being commence with the beginning of each calendar year.

(2) Where the Registrar of Marriages, before whom the memorandum is submitted, on scrutiny of the documents
submitted with the memorandum, or on the other facts noticed or brought to his notice is satisfied or has reason to
believe that,—
(a) the marriage between the parties is not performed in accordance with any law for the time being in force; or
(b) the marriage between the parties is not performed in accordance with the personal law of the parties; or
(c) the identity of the parties or the witnesses or the persons testifying the identity of the parties and the
solemnization of the marriage is not established beyond reasonable doubt; or
(d) the documents tendered before him do not prove the marital status of the parties, he may, after hearing the
parties and recording the reasons in writing refuse to register the marriage and may,—
(i) call upon the parties to produce such further information or documents as deemed necessary for
establishing the identity of the parties and witnesses or correctness of the information or documents
presented to him; or
(ii) if deemed necessary, refer the papers for verification to the local police station within whose jurisdiction
the parties reside.

(3) Where on further verification as provided in sub-rule (2), the Registrar of Marriages is satisfied that there is no
objection to register the marriage, he may register the same, and if in his opinion, the marriage is not fit for
registration, he may pass an order of refusal in writing recording the reasons therefor.

(4) The registration of marriage or refusal of registration of marriage under sub-rule (3) shall be done within a period
of two months from the date of receipt of memorandum of registration of marriage.

(5) On dissolution of marriage registered under sub-rule (3), it shall be binding on either party to a marriage to
intimate the details of dissolution of marriage to the Registrar of Marriages and on receiving such details the
Registrar of Marriages shall enter such details in column (16) of Marriage Register specified in Form No. 2. After the
dissolution of marriage, if any person requires a copy of marriage registration certificate, then the fact of dissolution
of marriage shall be mentioned in the marriage registration certificate.

8. Proof of age.—The Registrar of Marriages may, for the purpose of satisfying himself that the parties to the
marriage have completed the age specified in clause (c) of section 4 requires them to produce birth certificate or
any other satisfactory evidence to prove their age.
 Page 79 of 139
APPENDIX II REGISTRATION OF MARRIAGE

9. Appeal against the order of Registrar of Marriages.—(1) Any person aggrieved by the order of the Registrar of
Marriages refusing to register the marriage under rule 7 may within a period of thirty days from the date of receipt of
such order appeal to the District Judge.

(2) The District Judge, after giving an opportunity of being heard to the parties, pass an order in writing recording
the reasons, therefor and direct the Registrar, of Marriages to register the marriage or confirm the order of the
Registrar of Marriages,

(3) The order passed by the District Judge under sub-rule (2) shall be final.

10. Register of Marriages.—(1) The Registrar of Marriages shall maintain a register of marriage solemnized or
performed in the local area for which he is appointed, in the Form No. 2 and enter description given by parties in
memorandum and authenticate the same.

(2) The Registrar of Marriages shall issue a certificate of the registration of marriage to the parties prescribed in
Form No. 3 on payment of fees of rupees thirty in cash at the time of registration of marriage and for duplicate
certificate as and when required. The certificate of registration of marriage shall be issued in Form No. 3 in Hindi but
if the party to the marriage requires that it be issued in English version, the same shall be provided.

(3) Upon being required by either party to the marriage, the certificate of registration of marriage shall be sent by
registered post on the address given by the applicant and the postal charges shall be borne by the applicant.

11. Register to be open for public inspection.—The Register of Marriages shall, at all reasonable times, be open to
inspection and the certified extracts therefrom shall on application, be given by the Registrar of Marriages to the
applicant on payment of fees of Rupees Twenty in cash.

12. Responsibilities of employer etc., for verification of marriage registration certificate.—Any employer or a
Government or Semi-Government authority or company or public sector undertaking or local authority shall not
carry out any change in their office record or in any office documents, such as change in the marital status or
change of nomination, of its employee or in their dealing with any person, customer or client, unless the employee
or, as the case may be, the applicant applying for carrying out or recording of such change, submits a certified copy
of the certificate of registration of marriage granted under sub-section (2) of rule 9 or granted under any other law
for the time being in force.

13. Penalty for making false statement in the memorandum of marriage.—Any person who makes or verifies any
false statement in the memorandum of marriage, which he or she knows or has reason to believe to be false, shall
be punished in accordance with the law prevailing for the time being in force.

14. Penalty for destroying or altering register.—Whoever destroys or temper the register shall be punished in
accordance with the law prevailing for the time being in force.

15. Registrar of Marriages to be public servant.—Every Registrar of Marriages shall be deemed to be a public
servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

16. Protection to persons acting under these rules.—No suit, prosecution or other legal proceeding shall lie against
the Registrar of Marriages or any employee subordinate to him, for anything which is in good faith done or
purporting to be done under the rules.

17. Power of State Government to give directions.—The State Government may, from time-to-time for the effective,
and smooth implementation of the provisions of the rules, issue such directions not inconsistent with the provisions
of these rules, to the Registrar of Marriages and the Collector, who shall have superintendence on the Registrar of
Marriages of the concerned district.

FORM NO. 1

PROFORMA OF MEMORANDUM

[See rule 7(1)(a)]

 Page 80 of 139
APPENDIX II REGISTRATION OF MARRIAGE

To, Passport size Photograph of bridegroom and bride with self-attestation after affixing

The Registrar of Marriages,

………………………………

………………………………
1. (A) Name of the Bridegroom:...............................................
(B) Date of Birth:...............................................
(C) Name of father: ...............................................
(D) Age at the time of marriage:...............................................
(E) Residential Address Village/Mohalla Post Office District: ..............................................
(F) Status: Bachelor/Widower/:...............................................

Divorcee: ...............................................
2. (A) Name of bride:...............................................
(B) Date of birth:...............................................
(C) Name of father:...............................................
(D) Age at the time of marriage:...............................................
(E) Residential Address Village/Mohalla: Post Office: Police Station District:...............................................
(F) Status: Spinster/Widow/Divorced. :...............................................
3. (A) Date of marriage:...............................................
(B) Place of marriage: Post Office: Police Station District
4. Kind of marriage (Hindu/Muslim/Christian/Arya Samaj etc.) :
5. Whether marriage has been registered under any Act or performed by Priest/Kaaji/Minister of Religion of
Church/Arya Samaj or any other religious institutions. If yes, attached the attested copy of Certificate or
marriage and other details thereof. : ...............................................

Signature of Bridegroom (Left thumb impression) ............................................. Signature of Bride (Left thumb
impression)

Place:

Date:

...............................................

Signature of the person who performed marriage

Witnesses: (Signature, name and complete address)

(1)

(2)

Note.—Two passport size photographs each of bridegroom and bride are hereby attached for affixing than in the
marriage register and marriage registration certificate.

FORM NO. 2
 Page 81 of 139
APPENDIX II REGISTRATION OF MARRIAGE

[See rule 7(1)(c) and 10(1)]

PROFORMA OF THE MARRIAGE REGISTER

 Page 82 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Sl. No. Date of Name Date of Age on Status Name & Date of Age on Status Date of Place of Descript Result/o O D
receipt and Birth the date of the Address Birth the date of the marriag marriag ion of rder of r e
of Address of parry on of Bride, of party on e e person the d t
applicati of marriag the date photo marriag the date Mohalla/ who Registra e a
on Bridegr e of be e of Police perform r of r il
oom marriag affixed marriag Station, ed Marriag o s
photo e in this e Tahsil, marriag e f o
be bachelo column spinster District e A f
affixed r/widow and /widow/ p d
in this er/divor Registra divorce p i
column cee r shall e e s
and attest it ll s
Registra by a o
r shall signatur t l
attest it e and e u
by seal A ti
signatur u o
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seal h o
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 Page 83 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Sl. No. Date of Name Date of Age on Status Name & Date of Age on Status Date of Place of Descript Result/o O D
receipt and Birth the date of the Address Birth the date of the marriag marriag ion of rder of r e
of Address of parry on of Bride, of party on e e person the d t
applicati of marriag the date photo marriag the date Mohalla/ who Registra e a
on Bridegr e of be e of Police perform r of r il
oom marriag affixed marriag Station, ed Marriag o s
photo e in this e Tahsil, marriag e f o
be bachelo column spinster District e A f
affixed r/widow and /widow/ p d
in this er/divor Registra divorce p i
column cee r shall e e s
and attest it ll s
Registra by a o
r shall signatur t l
attest it e and e u
by seal A ti
signatur u o
e and t n
seal h o
o f
ri m
t a
y r
ri
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e
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 Page 84 of 139
APPENDIX II REGISTRATION OF MARRIAGE

FORM NO. 3

[See rule 10(2)]

MARRIAGE REGISTRATION CERTIFICATE

Registration No............................

It is hereby certified that Shri.........................S/o......................... aged..................................................resident

of.........................District.........................and Smt......................... D/o.........................aged.........................resident
of.........................District..................................................are tied in the knot of marriage on date.........................

Date.........................

Place.........................

REGISTRAR OF MARRIAGES

(Signature and seal)

Affix photograph of Bridegroom and Bride with attestation of the Registrar of Marriages.

11. MAHARASHTRA
(1) THE BOMBAY REGISTRATION OF MARRIAGES ACT, 1953

(Bombay Act 5 of 1954)

An Act to provide for registration of marriages in the State of Maharashtra

Whereas it is expedient to provide for registration of marriages in the State of Maharashtra and for certain other
purposes hereinafter appearing.

It is hereby enacted as follows:

1. Short title, extent and commencement.—(1) This Act may be called the Bombay Registration of Marriages Act,
1953.

(2) It extends to the whole of the State of Maharashtra.

(3) This section shall come into force at once. Section 5B will come into force on the date of commencement of
Bombay Registration of Marriages (Amendment) Act, 1977 [Mah. Act XXIV of 1977*]. The remaining provisions of
the Act shall come into force in such area on such date as the State Government may, by notification in the Official

Gazette, appoint.

2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,—
(1) “to contract a marriage” means to solemnize or enter into a marriage in any form or manner;
(2) “marriage” includes re-marriage;
(3) “memorandum” means a memorandum of marriage mentioned in section 5;
(4) “priest” means any person who solemnizes a marriage;
(5) “Register” means a Register of Marriages maintained under this Act;
(6) “Registrar” means a Registrar of marriages appointed under this Act;
 Page 85 of 139
APPENDIX II REGISTRATION OF MARRIAGE

(7) “Registrar-General” means the Registrar-General of Births, Deaths and Marriages appointed by the State
Government for the State of Maharashtra under the Births, Deaths and Marriages Registration Act, 1886 (6
of 1886);
(8) “Schedule” means the Schedule to this Act.

3. Appointment of Registrars of marriages.—The State Government may appoint, either by name or by virtue of
their office, so many persons as it thinks necessary to be

Registrars of Marriages for such local areas as it may specify.

4. Every marriage in state to be registered.—After the date on which the provisions of this Act have been brought
into force in any area under sub-section (3) of section 1, every marriage contracted in such area shall be registered
in the manner provided in section 5.

5. Memorandum of marriage.—(1) The parties to a marriage to which section 4 applies, or their fathers or guardians
when they shall not have completed the age of 18 years, shall prepare and sign a memorandum in the form in the
Schedule and shall deliver or send by registered post the said memorandum in duplicate to the Registrar of the
area, within a period of 30 days from the date of the marriage:

Provided that where the marriage is contracted without the consent of the father or guardian of a party, such party
and not the father or guardian shall comply with the provisions of this sub-section.
(2) The memorandum shall also be signed by the officiating priest, if any.
(3) The memorandum shall be accompanied by a fee of rupee one.
(4) The Registrar shall maintain a register of such marriages. On receipt of the memorandum the Registrar
shall file the same in the register and shall send the duplicate copy thereof to the Registrar-General.
1[5A. Memorandum of marriage submitted after 30 days.—(1) A memorandum regarding any particular marriage
may be submitted to the Registrar after the expiry of the period of 30 days specified under sub-section (1) of section
5. Such memorandum shall be in the form, and shall be signed, as provided for in section 5 and shall be
accompanied by such fee not exceeding rupees ten as may be prescribed. On receipt of such memorandum the
Registrar shall file the same in the register and shall also send the duplicate copy thereof to the Registrar-General
as provided in section 5.

(2) Nothing in sub-section (1) shall affect the liability of any person who has wilfully omitted or neglected to deliver
or send the memorandum within the period specified in sub-section (1) of section 5 to any penalty under section 8.]
2[5B. Voluntary registration of marriages contracted in areas in which remaining provisions have not been
brought into force.—(1) In any area in the State of Maharashtra in which the remaining provisions of this act have
not been brought into force by a notification under sub-section (3) of section 1, the parties to any marriage
contracted in that area, or their fathers or guardians when they shall not have completed the age of 18 years, may if
they so desired, prepare and sign a memorandum in the form in the Schedule and deliver or send by registered
post the said memorandum in duplicate to such Registrar as the State Government may, from time to time, by
notification in the Official Gazette, specify in this behalf. The memorandum may also be signed by the officiating
priest, if any. The memorandum shall be accompanied by a fee of rupee one if it is sent or delivered within a period
of 30 days from the date of the marriage and a fee not exceeding rupees ten as may be prescribed if it is sent or
delivered after the expiry of the aforesaid period of 30 days.

(2) On receipt of any such memorandum, the Registrar shall file the same in the register of marriages maintained by
him and shall send the duplicate copy thereof to the Registrar-General as provided in section 5, and other
provisions of this Act shall also apply to such memorandum as they apply to any memorandum submitted to the
registrar under section 5 in any area in which that section has been brought into force, subject to the following
modifications, namely—
(a) In section 8, in clause (2), for the words “in such memorandum” the words, figures and letter “in any
memorandum submitted under section 5 or 5B” shall be deemed to be substituted.
(b) In section 9, for the words and figures “pursuant to section 5” the words, figures and letter “pursuant to
section 5 or 5B” shall be deemed to be substituted.]
 Page 86 of 139
APPENDIX II REGISTRATION OF MARRIAGE

6. Register to be open for public inspection.—The register maintained under this Act shall, at all reasonable times,
be open to inspection and certified extracts therefrom shall on application be given by the Registrar on payment by
the applicant of a fee of rupees two for each such extract.

7. Non-registration not to invalidate marriage.—No marriage contracted in this State of Maharashtra and to which
this Act applies shall be deemed to be invalid solely by reason of the fact that it was not registered under this Act or
that the memorandum was not delivered or sent to the Registrar or that such memorandum was defective, irregular
or incorrect.

8. Penalty for neglecting to comply with provisions of section 5 or for making false statements in memorandum.—
Any person who—
(i) wilfully omits or neglects to deliver or send the memorandum as required by section 5, or
(ii) makes any statement in such memorandum which is false in any material particular, and which he knows
or has reason to believe to be false,

shall, on conviction, be punished with fine which may extend to two hundred rupees.

9. Penalty for failing to file memorandum.— Any Registrar who fails to file the memorandum pursuant to section
5 shall, on conviction, be punished with rigorous imprisonment for a term which may extend to three months or with
fine which may extend to five hundred rupees or with both.

10. Penalty for secreting, destroying or altering register.— Any person secreting, destroying, or dishonestly or
fraudulently altering the register or any part thereof shall,

on conviction, be punished with imprisonment for a term which may extend to two years, and shall also be liable to
fine.

11. Registrar to be public servant.— Every Registrar shall be deemed to be a public servant within the meaning
of section 21 of the Indian Penal Code (45 of 1860).

12. Indemnity to persons acting under this Act.— No suit, prosecution or other legal proceeding shall be
instituted against any person for anything which is in good faith done or intended to be done under this Act.

13. Power to make rules.— (1) The State Government may, by notification in the Official Gazette and subject to
the condition of previous publication, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any
of the following matters, namely:—
(a) the duties and powers of the Registrar;
(b) the form and manner in which registers or records required to be kept by or under this Act shall be
maintained;
(c) the custody in which the registers and records are to be kept and the preservation of such registers and
records;
(d) the fee to be paid under section 5A.

14. Savings.— This Act shall not apply to marriages contracted under the Special Marriages Act, 1954 (43 of
1954), the Indian Christian Marriage Act, 1872, or the Parsi Marriage and Divorce Act, 1936 (3 of 1936).

THE SCHEDULE

FORM

(See section 5)

MEMORANDUM OF MARRIAGE

1. Date of marriage.
 Page 87 of 139
APPENDIX II REGISTRATION OF MARRIAGE

2. Place of marriage (with sufficient particulars to locate the place).

3.
(a) Full name of the bridegroom.
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Status of the bridegroom at the time of marriage whether married, and if so, how many wives are alive.
unmarried widower divorced
(f) Signature of the bridegroom, with date.
4.
(a) Full name of the bride.
(b) Her age.
(c) Usual place of residence.
(d) Address.
(e) Status of the bride at the time of marriage whether unmarried widow divorced
(f) Signature of the bride, with date.
5.
(a) Full name of the father or guardian of the bridegroom.
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Signature of the father or guardian of the bridegroom with date.
6.
(a) Full name of the father or guardian of the bride.
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Signature of the father or guardian of the bride, with date.
7.
(a) Full name of the officiating priest.
(b) His age.
(c) Usual place of residence.
(d) Address.
(e) Signature of the officiating priest, with date.

NOTIFICATIONS UNDER BOMBAY ACT 5 OF 1954 G.N., L.S.G. & P.H.D., No. RGM- 1153 (a), dated 20 th
December, 1954 (B.G., Pt. IV-B, p. 1706)

In exercise of the powers conferred by sub-section (3) of section 1 of the Bombay Registration of Marriages Act,
1953 (Bom. 5 of 1954), the Government of Bombay is pleased to appoint the 15th January, 1955 as the date on
which and the areas specified in the Schedule hereto annexed as the areas in which sections 2 to 14 of the said Act
including the Schedule thereto shall come into force.
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APPENDIX II REGISTRATION OF MARRIAGE

SCHEDULE

Areas within the limits of—

(i) Greater Bombay;
(ii) the Cities of Ahmedabad and Poona as constituted under the Bombay Provincial Municipal Corporation
Act, 1949 (Bom. 59 of 1949);
(iii) all the municipal boroughs as defined in the Bombay District Municipal Boroughs Act, 1925 (Bom. 18 of
1925);
(iv) all the municipal districts as defined in the Bombay District Municipal Act, 1901 (Bom. 3 of 1901);
(v) all the cantonments in the State of Bombay declared as such, under sub-section
(1) of section 3 of the Cantonments Act, 1924 (2 of 1924);
(vi) areas of gaothans of villages which are headquarters of taluqas or mahals, not being areas falling under
clauses (i) to (v) above.

G.N., U.D. & P.H.D., No. RGM- 1164(a)-C, dated 12th March, 1964 (M.G., Pt. IV-B, p. 286)

In exercise of the powers conferred by sub-section (3) of section 1 of the Bombay Registration of Marriages Act,
1953 (Bom. 5 of 1954), the Government of Maharashtra hereby appoints the 1st day of April, 1964 to be the date on
which and the areas specified in the Table hereto annexed as the additional areas in which sections 2 to 14 (both
inclusive) of the said Act, including the Schedule thereto shall come into force.

TABLE

Areas within the limits of—

(i) the Corporation of the City of Nagpur as constituted under the City of Nagpur Corporation Act, 1948 (C.P.
& Berar 2 of 1950);
(ii) all cantonments declared as such under the Cantonments Act, 1924 (2 of 1924), in the Vidarbha region
and Hyderabad areas of the State;
(iii) all municipal committees constituted under the Central Provinces and Berar Municipalities Act, 1922 (C.P.
& Berar 2 of 1922);
(iv) all municipal committees or town committees constituted under the Hyderabad District Municipalities Act,
1956 (Hyd. 18 of 1956);
(v) the areas of gaothans of villages in the Vidarabha region and Hyderabad areas of the State, which are
headquarters of tahsils or mahals, not falling under clauses (i) to (iv) above.

G. N., L.S.G. & P.H.D., No. RGM- 1153 (b), dated 20 th December, 1954 (B.G., Pt. IV-B, p. 1706)

In exercise of the powers conferred by section 3 of the Bombay Registration of Marriage Act, 1953 (Bom. 5 of
1954), the Government of Bombay is pleased to appoint all the Sub-Registrars and the Joint Sub-Registrars appoint
under the Indian Registration Act, 1908 (16 of 1908), to be Registrars of Marriages for the local areas falling within
their respective jurisdiction, in which the provisions of the first mentioned Act have come into force.

G.N., U.D.& P.H.D., No.RGM- 1164 (b)-C, dated 12 th March, 1964 (M.G., Pt. IV-B, p. 287)

In exercise of the powers conferred by section 3 of the Bombay Registration of Marriages Act, 1953 (Bom. 5 of
1954), the Government of Maharashtra hereby appoints all the Sub-Registrars and the Joint Sub-Registrars
appointed under the Indian Registration Act, 1908 (16 of 1908), in the Vidarbha region and Hyderabad area of the
State also to be the Registrars of Marriages for the local areas falling within their respective jurisdiction, in which the
provisions of the first mentioned Act have come into force.
(2) THE BOMBAY REGISTRATION OF MARRIAGES RULES, 1954

G.N., L.S.G. & P.H.D., No. RGM-1153, dated 8 th July, 1954 (B.G., Pt. IV-B, p. 872)
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APPENDIX II REGISTRATION OF MARRIAGE

Amended by G.N., L.S.G. & P.H.D., No. RGM-1153-C, dated 23rd December, 1955 (B.G., Pt. IV-B, p. 2046).

Amended by G.N., L.S.G. & P.H.D., No. RGM-1255-C, dated 28th March, 1956 (B.G., Pt. IV-B, p. 530).

Amended by G.N., L.S.G. & P.H.D., No. RGM-1157-C, dated 11th November, 1957 (B.G., Pt. IV-B, p. 2217).

Amended by G.N., L.S.G., & P.H.D., No. LBA-1055-C, dated 29th January, 1958 (B.G., Pt. IV-B, p. 125).

In exercise of the powers conferred by section 13 of the Bombay Registration of Marriages Act, 1953 (Bom. 5 of
1954), the Government of Bombay is pleased to make the following Rules, namely:—

1. Short title.— These rules may be called the Bombay Registration of Marriages Rules,

2. Form of register and manner of keeping it.—

(1) The register to be maintained under sub-section (4) of section 5 shall be in the form of a paste book
consisting of blank butts serially numbered.
(2) The Registrar shall certify under his signature on the title page of every blank register issued to him, the
number of pages actually contained in such register and shall note the date on which the register was
received by him.
(3) The registers used by the Registrar shall be numbered serially beginning with the figure “1”.

3. Filing of memoranda.— Each memorandum received by the Registrar under sub-section (1) of section 5 or
section 5A shall be filed by him in the register by pasting it on the first blank but available in his current register.

3A. Fees for memoranda under section 5A.— Every memorandum submitted under section 5A shall be
accompanied by a fee of—
(a) three rupees, if the memorandum is submitted within three months after the expiry of thirty days from the
date of the marriage;
(b) five rupees, if submitted any time, thereafter.

4. Duplicates.— On or before the fifth day of each month, the Registrar shall send by Registered post to the
Registrar-General all duplicate copies of the memoranda received by him during the preceding month, after signing
at the end of the last of such copies a certificate in the following form, namely:—

Certified that the above, which contains Serial No to Serial No,

are duplicate copies of all the memoranda filed in the register maintained by me under the Bombay Registration of
Marriage Act, 1953 (Bom. Act 5 of 1954), during the month of20 Dated theday of 20

Registrar of Marriages,

5. Form of endorsement on the memorandum.— Each memorandum and its duplicate shall be endorsed by the
Registrar with the following endorsement on the reverse thereof, namely.—

“The memorandum and 1[the fee of,] were received by me on20 and the memorandum is filed at Serial Noof 20 on
page of volume of the Register of Marriages maintained under the Bombay Registration of Marriages Act, 1953
(Bom. Act 5 of 1954).

Sd/-

Date Registrar of Marriages,

……………………………………

6. Form of receipt.— The Registrar shall pass a receipt for each amount received by him in the following form,
namely:—
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APPENDIX II REGISTRATION OF MARRIAGE

“Under Bombay Act 5 of 1954.

Received as follows:—

Rs. nP.

For registration of memorandum of marriage...

For certified extracts from the register...

Date Registrar of Marriages

………………………………

Here fill in the number of certified extracts.

7. Filing and indexing by Registrar-General.— (1) On receipt of the duplicate copies of memoranda sent under
sub-section (4) of section 5 or section 5A the Registrar-General shall file them (by passing) in the registers similar
to those maintained by the Registrars. All entries in the Registrar-General’s register shall be indexed in two different
forms, as under:

INDEX NO. I

(Husband)
 Page 91 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Name of husband Place of residence Name of wife Place of residence Place of marriage Date of marriage Reference to
memorandum

1 2 3 4 5 6 7
 Page 92 of 139
APPENDIX II REGISTRATION OF MARRIAGE

INDEX NO. II

(Wife)
 Page 93 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Name of wife Place of residence Name of husband Place of residence Place of marriage Date of marriage Reference to
memorandum
1 2 3 4 5 6 7
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APPENDIX II REGISTRATION OF MARRIAGE

(2) The names in both the indices shall be arranged alphabetically.

8. Power of Registrar to require parties to rectify the defects in memorandum or to send it to Registrar
having jurisdiction.— (1) If any memorandum received by a Registrar under section 5 or section 5A is not
accompanied by a duplicate thereof, or the appropriate fee or if the memorandum is defective in any respect, the
Registrar shall require the parties to the marriage to furnish the duplicate or to pay the proper fee, or to remedy the
defect, as the case may be, within such time as may be specified by him.

(2) If the Registrar receiving such memorandum has no jurisdiction to receive the same he shall send the
memorandum to the Registrar having such jurisdiction and to inform the persons who had sent or delivered the
memorandum accordingly.

(3) If the Registrar receiving such memorandum has no jurisdiction but inadvertently files the same in the register
maintained by him, he shall send a certified copy thereof together with the copy of endorsement of filing recorded
thereon to the Registrar having jurisdiction for the purpose of filing and inform the persons who had sent or
delivered the memorandum accordingly. He shall then make a suitable endorsement on the memorandum
indicating the action taken by him and cancellation of registration from his register.

(4) The Registrar, on receiving a certified copy of the memorandum under sub-rule (3), shall file it in the register
maintained by him without leaving the additional fee and report the action taken by him to the Registrar-General.

9. Superintendence.— The Registrars shall perform their duties and exercise their powers under the general
superintendence of the Registrar-General.

10. Crediting fees.— All the fees received by the Registrars shall be credited to Government.

11. Supply of forms of memorandum.— (1) Blank forms of memorandum shall be supplied free of charge to the
parties to a marriage by the Registrar.

(2) The Registrar may also supply free of charge to any priest or to a talati, patil, school teacher or to any
municipality or municipal corporation a reasonable number of blank forms provided that each priest, talati, patil,
school teacher, municipality or municipal corporation undertakes to render an account of the forms, when
requesting for a further supply of such form.

12. Preservation of registers and records.— (1) The registers maintained in the offices of the Registrar and the
Registrar-General as well as the indices maintained in the office of the Registrar-General shall be preserved
permanently.

(2) The records and papers mentioned below shall be destroyed after the expiry of the period specified against
them.

Nature of records PeriodYears

1. Receipt book (foils) 5

2. Postal acknowledgment receipts in 5

respect of duplicates of memorandum
sent to the Registrar-General

3. Applications for extracts from the 5

register

4. Cash Book 5

5. Account of blank books and forms 3

(3) THE MAHARASHTRA REGULATION OF MARRIAGE BUREAUS AND REGISTRATION OF MARRIAGES

ACT, 1998

(Maharashtra Act No. XX of 1999)

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APPENDIX II REGISTRATION OF MARRIAGE

(First published, after having received the assent of the Governor, in the “Maharashtra Government Gazette”, the
15th April, 1999).

An Act to provide for a comprehensive and stringent law for regulation of marriage bureaus for prevention of mal-
practices and misuse of marriage registration facility; and for compulsory registration of marriages in the State of
Maharashtra; and for matters connected therewith or incidental thereto.

WHEREAS it is expedient to make a comprehensive and stringent law for regulation of marriage bureaus for
prevention of mal-practices and misuse of marriage registration facility; and for compulsory registration of marriages
in the State of Maharashtra, and to provide for matters connected therewith or incidental thereto; It is hereby
enacted in the Forty-ninth Year of the Republic of India as follows:—

1. Short title and commencement.— (1) This Act may be called the Maharashtra Regulation of Marriage Bureaus
and Registration of Marriages Act, 1998.

(2) It shall come into force on such date as the State Government may, by notification in the Official Gazette,
appoint.

2. Definitions.— In this Act, unless there is anything repugnant in the subject or context,—
(a) “Government’ means the Government of Maharashtra in the Public Health Department;
(b) “marriage” includes a re-marriage;
(c) “marriage bureau” or “bureau” means a bureau or institution consisting of a person or group of persons,
which carries on the activity of helping the unmarried persons including divorcees, widows and widowers,
desirous of getting married, registered with the bureau, in finding a suitable match for them by arranging to
bring such persons together etc., and which is registered under section 5;
(d) “memorandum” means a memorandum for registration of marriage mentioned in section 6;
(e) “parties” means the husband and wife whose marriage has been solemnized;
(f) “prescribed” means prescribed by rules made under this Act;
(g) “register of marriages” means the register of marriages maintained under this Act;
(h) “register of marriage bureaus” means the register of marriage bureaus maintained under this Act;
(i) “Registrar” means a Registrar of marriage bureaus and marriages, appointed under this Act;
(j) “Registrar-General” means the Registrar-General of Births, Deaths and Marriages, appointed by the State
Government for the State of Maharashtra under the Births, Deaths and Marriages Registration Act, 1886.

3. Appointment of Registrar of marriage bureaus and of marriages.— (1) The State Government may, by
notification in the Official Gazette, appoint as many persons, as it thinks necessary to be the Registrars of Marriage
Bureaus and Marriages, for such area or areas as may be specified in such notification.

(2) The Registrar shall exercise such powers and duties as provided by or under this Act and shall work under the
general supervision and control of the Registrar-General and the Government.

4. Marriage bureaus and marriages to be registered.— From the date of coming into force of this Act, every
marriage bureau and every marriage in the State shall be registered with the Registrar of marriage bureaus and
marriages.

5. Registration of marriage bureaus.— (1) Any person or group of persons desirous of conducting, or running a
marriage bureau shall apply for registration of such marriage bureau to the Registrar, in such manner and along
with such fees and documents as may be prescribed:

Provided that, the marriage bureaus existing on the date of commencement of this Act shall apply for registration
within a period of three months from the date of such commencement.

(2) The Registrar shall, on receiving an application under sub-section (1), after scrutiny of such application and
verifying the prescribed documents, register such marriage bureau and grant a certificate of registration to such
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APPENDIX II REGISTRATION OF MARRIAGE

bureau, in the prescribed form. The registration certificate so granted shall be displayed prominently by such bureau
in its registered office premises.

(3) In case an application for registration is not made in the prescribed manner or is not in compliance with the
prescribed requirements, the Registrar may, for reasons to be recorded in writing, refuse to register such marriage
bureau, after giving the applicant an opportunity of being heard.

(4) Every such marriage bureau shall renew its registration after every two years from the date of grant of such
certificate, on payment of the prescribed renewal fee; and the Registrar shall renew the certificate in the same
manner, as laid down under sub-section (2).

(5) No marriage bureau shall carry on or conduct its activities as the marriage bureau, except at its registered office
or place as specified in the registration certificate granted under sub-section (2).

(6) Every marriage bureau shall conduct its activities as such bureau strictly as per the terms and conditions of the
registration granted under sub-section (2); and contravention or non-compliance by a bureau with any of the
provisions of this Act or the rules made thereunder or the terms and conditions subject to which the registration has
been granted, shall make the registration of such bureau liable for cancellation and shall also constitute an offence
making the bureau liable for punishment as provided in sub-section (2) of section 12:

Provided that, registration of a bureau shall not be cancelled without giving reasonable opportunity, of being heard,
to the concerned bureau.

(7) Any person or bureau aggrieved by the order of the Registrar refusing to register or renew the registration of the
bureau or cancelling the registration may, appeal against such order to the Registrar-General, in the prescribed
manner and the provision of sections 7, 8 and 9 relating to appeal against the order of refusal to register a marriage
shall, mutatis mutandis, apply to such appeal.

6. Duty of husband to submit memorandum for registration of marriage.—(1)

(a) On solemnization of a marriage, it shall be the responsibility of the husband to present within a period of
ninety days from the date of the solemnization of the marriage a memorandum in the prescribed form
before the Registrar within whose jurisdiction the husband ordinarily resides or where either one of the
parties ordinarily reside;
(b) the parties and three witnesses to the marriage shall appear in person before the Registrar and sign the
memorandum;
(c) the memorandum shall be accompanied by such fee and other documents as may be prescribed;
(d) the Registrar before whom the memorandum is presented shall, after verification of the identity of the
parties and the witnesses in the prescribed manner, register the marriage in the register of marriages;
(e) on registration of the marriage, the Registrar shall issue a certificate of registration of marriage to the
parties in the prescribed form.

(2) Any marriage which is not registered within the time-limit specified in sub-section (1), may be registered as
provided in the said sub-section, by the Registrar within whose jurisdiction the parties ordinarily reside, on
submission of the memorandum within a period of one year from the date of the marriage, along with such penalty,
not exceeding rupees one hundred, as may be prescribed:

Provided that, any marriage which is not registered as provided under this sub-section may, subject to the
provisions of sub-section (1) of section 12, be registered at any time as provided in sub-section (1), after charging a
penalty not exceeding rupees five hundred, as may be prescribed.

(3) Notwithstanding anything contained in this section, any marriage which is solemnized before the coming into
force of this Act and a period of not less than one year has elapsed since its solemnization, and which for any
reason has not been registered, may be registered on presentation of a memorandum along with a penalty of one
hundred rupees, in relaxation of any of the provisions of this section:

Provided that, any marriage solemnized within a period of one year, prior to the date of commencement of this Act,
 Page 97 of 139
APPENDIX II REGISTRATION OF MARRIAGE

shall be registered in accordance with the provisions of sub-section (1), on payment of penalty of one hundred
rupees.

7. Power to refuse registration and report to Registrar-General.— (1) Where the Registrar, before whom the
memorandum is presented under section 6, on scrutiny of the documents submitted with the memorandum or, on
the basis of other facts noticed or brought to his notice, is satisfied or has reason to believe that,
(a) the marriage between the parties is not performed in accordance with the personal law of the parties; or
(b) the identity of the parties or the witnesses or the persons testifying the identity of the parties and the
solemnization of the marriage is not established beyond reasonable doubt; or
(c) the documents tendered before him do not prove the marital status of the parties;

he may, after hearing the parties and recording the reasons in writing, refuse to register the marriage and may,—
(i) call upon the parties to produce such further information or documents as deemed necessary, for
establishing the identity of the parties and the witnesses or correctness of the information or documents
presented to him, and for that purpose direct the parties to appear before him with the required further
information or documents on any other date as may be mutually fixed; or
(ii) if deemed necessary, also refer the papers to the local police station within whose jurisdiction the parties
reside, for verification, and direct the parties to appear before him on any other date as may be mutually
fixed.

(2) Whereon further verification as provided in sub-section (1), the Registrar is satisfied that there is no objection to
register the marriage, he may register the same. If in the opinion of the Registrar, the marriage is not fit for
registration, he may pass an order of refusal in writing, recording the reasons therefor and then refer the matter,
with all the relevant record and his report in the matter, to the Registrar General, within a period of seven days, from
the date of the order of such refusal.

8. Appellate powers of Registrar-General.— The Registrar-General, on receiving the reference under section 7
from the Registrar, shall, within a period of one month from the date of receipt of such report, after giving an
opportunity to the parties concerned of being heard, pass an order, after recording the reasons in writing, either
directing the Registrar to register the marriage, or confirming the order of the Registrar refusing to register the
marriage.

9. Appeal from order under section 8.— The person or party aggrieved by the order of the Registrar-General
under section 8 refusing to register the marriage under this Act may, within a period of thirty days from the date of
the order, appeal against such order to the District Court within the local limits of whose jurisdiction the Registrar of
Marriages has his office, and the decision of the District Court on such appeal shall be final, the Registrar of
Marriages before whom the memorandum was presented under section 6 shall act in conformity with such decision.

10. Non-registration not to invalidate the marriage.— Subject to the provisions of section 9, no marriage to
which this Act applies shall be deemed to be invalid solely for the reasons that it has not been registered under this
Act.

11. Responsibility of employees etc., of verification of marriage registration certificate.—No employer or a

Government or Semi-Government Authority or Company, or Public Sector Undertaking or Local Authority shall carry
out any change in their office record or in any office documents, such as change in the marital status or change of
nomination, etc., of its employee or in their dealings with any person, customer or client, unless the employee or, as
the case may be, the applicant applying for carrying out or recording of such change, submits a certified copy of the
Marriage Registration Certificate granted under section 6 of this Act.

12. Penalty for neglecting to comply with the provisions of section 6 or of any other section or for making
false statements in memorandum.— (1) On solemnization of a marriage,—
(a) if the husband fails to submit a memorandum as provided under section 6, within the time-limit specified
therein, or
(b) if the husband or the wife makes any statement or declaration in such memorandum which is false in any
material particular, or submits any documents or papers which he or she, as the case may be, knows or
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APPENDIX II REGISTRATION OF MARRIAGE

has reason to believe to be false, the husband or the wife, as the case may be, shall be guilty of an offence
punishable with fine which may extend to one thousand rupees.

(2) Any person or bureau or parry who contravenes any of the provisions of this Act, shall, on conviction, be
punishable with fine may which extend to five thousand rupees or, with simple imprisonment which may extend to
six months, or with both.

13. Sanction for prosecution.— No prosecution for an offence punishable under this Act shall be instituted except
by an officer authorised by the Registrar-General, by general or special order, in this behalf.

14. Register to be open for public inspection and copies of certified extracts to be given.— (1) The register
maintained under this Act, on application made to the Registrar and or payment of such fees as may be prescribed,
shall, at all reasonable times, be open for public inspection.

(2) On an application being made in that behalf, and on payment of such fee as may be prescribed, the Registrar
shall furnish to the applicant a copy of any extract of the register maintained under this Act.

15. Registration of marriage where a party is a minor.—Subject to the provisions of the Child Marriage Restraint
Act, 1929, any marriage solemnized when parties are minor, or where either of the party is a minor shall be
registered as provided in sub-section (1) of section 6:

Provided that, the Registrar shall, immediately, report such marriage to the local police station within whose
jurisdiction, the parties ordinarily reside, for necessary action under the provisions of the Child Marriage Restraint
Act, 1929.

16. Registrar to furnish duplicate copy of the registration certificate to the Registrar- General.—When the
Registrar registers a marriage under this Act, he shall immediately thereupon send a duplicate copy of the
registration certificate, to the Registrar-General.

17. Registrar to be public servant.—Every Registrar and every employee in the office of the Registrar shall, while
acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be a public servant within
the meaning of section 21 of the Indian Penal Code.

18. Indemnity to persons acting under this Act.— No suit prosecution or other legal proceeding shall be
instituted against any person for anything which is in good faith done or intended to be done under this Act or rules
made thereunder.

19. Power to make rules.— (1) The State Government may, by notification in the Official Gazette, make rules for
carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any
of the following matters, namely:—
(a) the form and the manner of, maintenance of registers or records under this Act;
(b)
(i) the form of application for registration of a marriage bureau;
(ii) the documents to be submitted therewith by the applicant;
(iii) the amount of fees for grant of and renewal of, such registration;
(iv) the form of certificate of registration to be granted to a marriage bureau and the terms and conditions
subject to which, such registration may be granted; and
(v) the manner and procedure of filing an appeal to the Registrar-General;
(c)
(i) the form of the memorandum for registration of a marriage and the details of the witnesses and the
priest to be specified in the memorandum;
(ii) the amount of fee for such registration;
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APPENDIX II REGISTRATION OF MARRIAGE

(iii) the form of certificate of registration of marriage;

(iv) the amount of penalty for late registration;
(d) the form of application and the fees for grant of a copy of the extract of the register of marriage bureaus or
the register of marriages maintained under this Act;
(e) any other matter for which rules may be made under this Act.

(3) Except when rules are made for the first time, all rules made under this Act shall be subject to the condition of
previous publication.

(4) Every rule made under this Act shall be laid as soon as may be, after it is made before each House of the State
Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two
successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately
following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not
be made, and notify such decision in the Official Gazette, the rule shall from the date of publication in the Official
Gazette, of such decision, have effect only in such modified form or be of no effect, as the case may be, so
however that, any such modification or annulment shall be without prejudice to the validity of anything previously
done or omitted to be done under that rule.

20. Savings.—This Act shall not apply to marriages contracted under the Special Marriage Act, 1954, the Indian
Christian Marriage Act, 1872, or the Parsi Marriage and Divorce Act, 1936.

21. Repeal.—The Bombay Registration of Marriages Act, 1953, is hereby repealed. Notwithstanding such repeal,
any marriage registered or any action taken by the Registrar, under the provisions of the said Act before such
repeal shall be deemed to have been validly registered or, as the case may be, taken under the corresponding
provisions of this Act.

22. Power of Government to give directions.— The Government may, from time-to-time, issue such directions
not inconsistent with the provisions of this Act, to the Registrar and the Registrar-General, as it may think fit in this
regard for the effective and smooth implementation of the provisions of this Act; and the Registrar and the
Registrar-General shall be bound to follow such directions.

23. Power to remove difficulty.— (1) If any difficulty arises in giving effect to the provisions of this Act, the State
Government may, by order published in the Official Gazette, give such directions, not inconsistent with the
provisions of this Act, as appear to it to be necessary or expedient for the purposes of removing the difficulty.

(2) No order under sub-section (1) shall be made after the expiry of two years from the date on which this Act
comes into force.
(4) THE MAHARASHTRA REGULATION OF MARRIAGE BUREAUS AND REGISTRATION OF MARRIAGES
RULES, 19991

In exercise of the powers conferred by sub-section (3) of section 19 of the Maharashtra Regulation of Marriage
Bureaus and Registration of Marriages Act, 1998 (Mah. Act XX of 1999), and of all other powers enabling it in that
behalf, the Government of Maharashtra hereby makes the following rules for regulation of the marriage bureaus
and registration of marriages, as follows namely:—

1. Short title.— These rules may be called the Maharashtra Regulation of Marriage Bureaus and Registration of
Marriages Rules, 1999.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Form” means a form appended to these rules;
(b) “Act” means the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998;
(c) “section” means a section of the Act;
(d) words and expressions used but not defined herein shall have the respective meanings assigned to them
in the Act.
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APPENDIX II REGISTRATION OF MARRIAGE

3. Application for registration of marriage bureau.—(1) Every owner, manager, partner, trustee or a person-in-
charge of a marriage bureau or any person or group of persons desirous of conducting or running a marriage
bureau shall apply for registration of the bureau in Form ‘A’ to the Registrar, within whose local jurisdiction the
Bureau is or is to be situated.

(2) The application under sub-rule (1) shall be accompanied by a fee of Rs. 5000.

(3) The application shall be accompanied by the following documents, namely:—

(i) a copy of the trust deed, in case the bureau is trust;
(ii) a copy of the identity card, if any, issued by the Election Commission of India; or ration card or any other
document establishing the identity of the applicant and giving proof beyond reasonable doubt of the
applicant’s place of residence and place where the office of the marriage bureau is to be situated as the
registered office of the bureau:

Provided that the Registrar may, in his discretion, allow any other documents to be submitted with the application as
sufficient proof for establishing the identity of the applicant and as a proof of residence and office premises of such
Bureau.

(4) If the Registrar is of the opinion that the documents tendered under sub-rule (3) do not, beyond reasonable
doubt, prove the identity of the applicant or the place of residence of the applicant or the place where the office of
the bureau is to be situated as its registered office, the Registrar may, direct the applicant to furnish such other
papers or documents, as considered necessary by the Registrar for the purpose of satisfying the Registrar for grant
of registration certificate. On production of such additional papers or documents, the Registrar, on being satisfied
may register such Bureau as a Marriage Bureau and grant the registration certificate in Form ‘B’.

(5) In case the Registrar is not satisfied, about the identity of the applicant or about the office premises of such
Bureau the Registrar may, after hearing the applicant, and after recording the reasons, for refusal, in writing pass
an order of in Form ‘C’ refusing to register the Bureau.

(6) The registration of a Marriage Bureau registered under sub-rule (4) may be renewed in the like manner.

4. Cancellation of registration.—If it is reported or noticed by the Registrar that the activities of any Marriage
Bureau are in contravention of the provisions of the Act or the Rules, the registrar may, after giving such Bureau an
opportunity to show cause and or being heard, on being satisfied about the alleged irregularity or contravention of
the provision of the Act or Rules, may after recording reasons in writing, pass an order in Form ‘C’ cancelling the
registration of such Bureau.

5. Procedure for registration of marriage.—(1) Every memorandum for registration of marriage shall be in Form
‘D’.

(2) The memorandum shall be accompanied by a fee of Rs. 15.

(3) The memorandum shall be accompanied by the following documents, namely:

(i) copy of the ration card or identity card, if any issued by the Election Commission of India or any other
documents like passport or identity card issued by the employer etc., of the parties and the witnesses;
(ii) birth certificate; or school leaving certificate of the parties;
(iii) marriage invitation card, if any:

Provided that the Registrar may, in his discretion, allow any other documents to be submitted with the
Memorandum as sufficient proof for establishing beyond reasonable doubt the identity and residence
of the parties and witnesses.

(4) On presentation of the memorandum and after verification of the same and after being satisfied about the
identity of the parties and witnesses, the Registrar may issue a certificate of registration of marriage in Form ‘E’.

(5) If the Registrar is of the opinion that the details given in memorandum and the documents or the papers
 Page 101 of 139
APPENDIX II REGISTRATION OF MARRIAGE

submitted by the parties and witnesses do not establish, beyond reasonable doubt, the identity of the parties or the
witnesses or both, the Registrar may, direct the parties, giving them reasonable time, to furnish such other
documents or papers, as considered necessary by the Registrar for the grant of registration certificate. On
furnishing of such papers or documents, the Registrar, on certification of such documents or papers, on being
satisfied, may grant the certificate of registration of marriage in Form ‘E’.

(6) In case the Registrar is not satisfied about the identity of the parties or the witnesses, or about the correctness
of the statements made in the Memorandum, the Registrar may, after hearing the parties and after recording the
reasons, in writing, pass an order, refusing to register the marriage. The order of refusal shall be in Form ‘F.

6. Procedure on receiving a reference.—The Registrar-General, on receiving the reference under section 7(2) of
the Act, from the Registrar regarding the order of refusal to register, within seven days, send a notice to the
aggrieved parties in Form ‘G’ summoning them to appear before him on the date, and time specified in the notice
not being earlier than seven days from the date of issue of notice, for explaining their case.

7. Penalty for delay in registration.—(1) A marriage solemnized but not registered within a period of one year
from the date of solemnization thereof may be registered by the Registrar within whose local jurisdiction the parties
are ordinarily residing on payment of a penalty of rupees fifty, and the procedure relating to the registration of
marriage under rule 5 shall apply for such registration.

(2) A memorandum for registration of marriage presented after a period of one year from the date of solemnization
of the marriage, may be registered as provided in rule 5, on payment of penalty of rupees one hundred.

8. Registrar to keep all applications and memoranda in safe custody.—The Registrar shall keep every
application for registration or renewal of a marriage bureau and every memorandum received by him in a safe
custody, and such application or memorandum shall be preserved for a period of sixty years from the date of its
receipt and shall not be removed from his office otherwise than under a written order of a court.

9. Form of Registers.—(1) The Registrar shall keep the Register of Marriage Bureaus for every year in Form ‘H’.

(2) The Registrar shall keep the Register of Marriages for every year in Form ‘I’.

10. Filling of certified copy.—(1) The certified copy of every decree for divorce or nullity or dissolution of marriage
received by the Registrar under rule (22) of the Hindu Marriage and Divorce Rules, 1955 made under the Hindu
Marriage Act, 1955 (25 of 1955) shall be filed by him in the register of marriages and entry of such decree shall be
taken at appropriate place, if such marriage is registered under this Act.

(2) On or before the fifth day of each month, the Registrar shall send by Registered Post, to the Registrar General
an extract from the certified copy in the following form, namely:—

“An extract from the certified copy of the decree for divorce or nullity or dissolution of marriage.”

Name of the Place of Name of wife Place of Place and details Date of Decree
Husband Residence Residence of Marriage

1 2 3 4 5 6

Dated the..........day of.............20..........Registrar of Marriages.

11. Inspection of Registers and obtaining certified copies thereof.—(1) The Registers shall be open for
inspection for all members of public. Any person desirous of inspecting the Register may do so, on an application
made in that behalf and on payment of fees of rupees five, to the Registrar.

(2) Any person desirous of obtaining certified copy of an extract of the register shall make an application therefor
and pay the Registrar a fee of Rs. Ten for each copy.

12. Crediting Fees.—All fees and penalties received by the Registrars shall be credited to Government Treasury.
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APPENDIX II REGISTRATION OF MARRIAGE

13. Supply of forms of memorandum.—(1) Blank forms of memorandum shall be supplied free of charge to the
parties to a marriage by the Registrar.

(2) The Registrar may also supply, free of charges, to any priest, talathi, patil, school teacher or to any Municipal
Council or Municipal Corporation a reasonable number of blank forms, provided such priest, talathi, patil, school
teacher. Municipal Council or Municipal Corporation, undertakes to render an account of the forms, when
requesting for a further supply of such forms.

14. Preservation of Registers and records.—(1) The records and papers mentioned below shall be destroyed
after the expiry of the period specified against them.

Name of the records Period (in years)

(a) Receipt Book Five

(b) Postal acknowledgment receipts in respect of references Five

sent to the Registrar-General

(c) Applications for extracts from the Register Five

(d) Cash Book Five

(e) Account of Blank Books and Forms Three

By order and in the name of the Governor of Maharashtra.

FORM ‘A’

APPLICATION FOR REGISTRATION/RENEWAL OF REGISTRATION OF MARRIAGE BUREAU

[See section 5(1) and (4) and rule 3]

From:

[Name and address of the applicant)

................................................... ..................... ...........................

................................................... ..................... ...........................

................................................... ..................... ...........................

(Permanent Address)

To

The Registrar of Marriage Bureaus and Marriages

..........................

Sir,

I, the applicant above-named, wish to apply for registration/renewal of registration of Marriage Bureau, namely:

Name and full address of the Marriage Bureau

[The place where the registered office of the bureau is to be or is situated)

2. I am enclosing the following documents:—

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APPENDIX II REGISTRATION OF MARRIAGE

(i) ..................................................................
(ii) ..................................................................
(iii) ..................................................................

3. I/We undertake that I/we shall abide by all the terms and conditions subject to which the registration may be
granted.

Yours faithfully

Date: (Signature of the Applicant)

FORM ‘B’

CERTIFICATE OF REGISTRATION/RENEWAL OF MARRIAGE BUREAU

[See section 5(2) and (4) and rule 3]

Certified that on an application Form A, submitted by Shri... R/o ......................................... the, marriage bureau,
namely ......................................... with its registered office at (address of the Registered Office) is registered by me
under the provisions of the Maharashtra Regulation of Marriage Bureau and Registration of Marriages Act, 1998
and subject to the terms and conditions stated overleaf.

The Certificate is valid upto the ......................................... day of ......................................... 20

.........................................

The Registered Office of the ......................................... * ......................................... Marriage Bureau

......................................... seal.

Place: .........................................

Date: ......................................... Signature

(Terms and Conditions)

This certificate is renewed upto .........................................

Place: .........................................

Date: ......................................... Signature

Seal

FORM ‘C’

ORDER OF REFUSAL FOR REGISTRATION/RENEWAL OF REGISTRATION OF MARRIAGE BUREAU

[See section 5(6) and rule 3(5)]

I, Registrar of Marriage Bureauafter scrutiny of the application and other documents and papers submitted with the
same and after hearing the applicant(s) on the………..day of………..20………..refuse to register/renew the
marriage bureau for the following reasons:—

...........................................................................................................................

...........................................................................................................................
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APPENDIX II REGISTRATION OF MARRIAGE

Date

Seal Registrar of Marriage Bureaus

FORM ‘D’

MEMORANDUM OF MARRIAGE

[See section 6 and rule 5]

1. Date of Marriage
2. Place of Marriage (with full particulars)
3. Personal law accordance to which the marriage between the parties was solemnized
4.
(a) Name of the Husband Full name beginning with surname.
(b) Religion (i) By birth (ii) By adoption (if any)
(c) Age as on the date of solemnization of marriage Years Months
(d) Occupation along with office address
(e) Status at the time of marriageunmarried/Widower/Divorced
(f) Full address of the husband
(g) Signature of the husband with date
5.
(a) Name of the Wife (Maiden Name) Full Name beginning with surname ………
(b) Other name(s) (if any) by which the wife is known
(c) Religion (i) By birth (ii) By adoption (if any)
(d) Age on the date of solemnization of marriageyearsmonths
(e) Status of the time of marriageunmarries/Widower/Divorced
(f) Signature of the wife with date
6. Witnesses: (1)
(i) Name
(ii) Address
(iii) Occupation and office address
(iv) Relation (if any) with the married couple
(v) Signature with date:

(2)
(i) Name
(ii) Address
(iii) Occupation and office address
(iv) Relation (if any) with the married couple
(v) Signature with date:

(3)
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APPENDIX II REGISTRATION OF MARRIAGE

(i) Name
(ii) Address
(iii) Occupation and office address
(iv) Relation (if any) with the married couple
(v) Signature with date:
7. Priest:
(a) Name of the priest (if any)
(b) Full address
(c) Religion
(d) Age
(e) Signature with date
8. Documents presented alongwith this Memorandum

(a) .........................................

(b) .........................................

(c) .........................................

(d) .........................................

9. Presented before the Registrar on: .........................................

...........................................................................................................................

N.B.—Any person making any statement or declaration in the memorandum, which is false in any material
particular or submits any documents which he/she knows or has reason to believe to be false shall be liable for
penal action under section 12.

FORM ‘E’

CERTIFICATE OF REGISTRATION OF MARRIAGE

[See section 6(1)(e) and rule 5]

Certified that, the marriage between......................................... (Name of husband), residing

at.........................................and......................................... (Name of the wife) residing
at.........................................solemnized on......................................... at............................................... (place) is
registered by me on...............................................at Serial No...............................................of
volume...............................................of register of Marriages maintained under the Maharashtra

Regulation of Marriage Bureaus and Registration of Marriages Act, 1998.

Place: ............................................... Signature.

Date: ............................................... Registrar of Marriages

Seal

FORM ‘F’

ORDER OF REFUSAL FOR REGISTRATION OF A MARRIAGE

 Page 106 of 139
APPENDIX II REGISTRATION OF MARRIAGE

[See section 7 and rule 6(6)]

I, Registrar of Marriages...............................................after scrutiny of memorandum and other documents

submitted with the same and after hearing the parties on the..

...............................................day of...............................................20...............................................refuse to register

the marriage for the following reasons:

Place: ............................................... Signature.

Date: ............................................... Registrar of Marriages

Seal

FORM ‘G’

[See section 7(2) and rule 6]

REGISTERED A.D. Date 20.........

From

The Registrar-General (Office Address)

Subject.—Reference under section 7(2) of the Maharashtra Regulation of Marriage Bureaus and Registration of
Marriages Act, 1998, from the Registrar of............................................... (place)

To
(1) Name of the Husband, address
(2) Name of the Wife, address
(3) Name of the witness, address
(4) Name of the witness, address
(5) Name of the witness, address

Whereas, the Registrar of Marriage Bureaus and Marriage of............................................... (place) has refused to
register the Marriage between............................................... (husband) and............................................... (wife)
solemnized at...............................................place and made a reference to me under the provisions of section 7 of
the Maharashtra Regulation of Marriage Bureaus and Regulation of Marriage Act, 1998 (Mah.
Act...............................................of 1998).

Now, therefore, in exercise of the powers conferred by section 8 of the said Act, I hereby call upon to appear before
me on...............................................day of...............................................20............................................... at
a.m./p.m., at the following address, to Show Cause as to why the Act of the Registrar should not be confirmed.

2. You may also bring such additional documents and witnesses, in support of your claim at the aforesaid date, time
and place.

3. If you fail to remain present, as stipulated, it will be presumed that you have nothing to say in the matter and the
Registrar-General may pass appropriate order.

Signature of Registrar-General

Dated the...............................................20...............................................

FORM ‘H’
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APPENDIX II REGISTRATION OF MARRIAGE

REGISTER OF MARRIAGE BUREAUS

[See section 5(2) and (4) and rule 9]

Register of Marriage Bureaus for the year

Sl.No Name of the Bureaus and Address Name and address of the person
running the Bureau

FORM ‘I’

REGISTER OF MARRIAGES

[See section 6(1)(e), 8 and rule 9]

Register of Marriages for the year..........................

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APPENDIX II REGISTRATION OF MARRIAGE

Sl.No. Date of Name of His age at the Religion of Name of wife Her age at the Religion of Date of Remarks
Marriage and husband and time of Husband and her time of wife Registration
place of his address Marriage address Marriage
Marriage

1 2 3 4 5 6 7 8 9 10
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APPENDIX II REGISTRATION OF MARRIAGE

12. ORISSA
THE ORISSA HINDU MARRIAGE REGISTRATION RULES, 19601

In exercise of the powers conferred by sub-sections (1) and (4) of section 8 of the Hindu Marriage Act, 1955 (25 of
1955), the State Government do hereby make the following rules, namely:

1. (1) These rules may be called the Orissa Hindu Marriage Registration Rules, 1960.

(2) They shall come into force at once.

2. In these rules, unless the context otherwise requires,—

(1) “the Act” means the Hindu Marriage Act, 1955 (25 of 1955);
(2) “Form” means a form appended to these rules;
(3) “Marriage” means a Hindu Marriage solemnised in accordance with the provisions of the Act;
(4) “Register” means the Hindu Marriage Register referred to in section 8 of the Act;
(5) “Registrar” means the Registrar appointed under rule 3.
(6) “section” means a section of the Act;
(7) All other words and expressions used but not defined herein shall have the same meaning as has been
assigned to them under the Act.

3. The State Government may, by notification from time-to-time, appoint any officer to be a Registrar for the
purposes of these rules having jurisdiction over such local area as may be specified in the notification.

4. A marriage duly solemnised in accordance with the provisions of the Act, may on an application made in
accordance with these rules, be registered by the Registrar.

5. Every Registrar shall maintain a register which shall be a bound book, the pages of which shall be machine
numbered, in Form A.

6. (1) An application for registration of particulars relating to a marriage shall be made to the Registrar in Form B.
Such application shall be signed by the parties to the marriage and by the officiating priest, if any, and where the
bride shall not have completed the age of eighteen years, it shall, in addition, be signed by her guardian in
marriage, if any, with whose consent the marriage was solemnised.

(2) Such application shall be accompanied by a treasury challan showing the deposit of fees as provided in rule 12.

7. If an application received by the Registrar is not accompanied by a treasury challan as aforesaid or is defective in
any respect the Registrar shall refuse to entertain it unless the parties to the marriage deposit the said fee in
treasury and produce the challan or remedy the defect, as the case may be, within such time as may be specified
by the Registrar.

8. (1) When an application for registration of a Hindu Marriage is presented before the Registrar, the Registrar shall
except when both the parties to the marriage and their guardians, if any, appear before him personally and are
identified to his satisfaction, give notice of the application in Form C to the parties concerned and to their guardians,
if any, by registered post and make such summary enquiry as he thinks fit regarding solemnisation of the marriage.
In holding such enquiry the Registrar may require the parties to the marriage to be identified to his satisfaction.

(2) On being satisfied about the due solemnisation of the marriage and regarding the identity of the parties thereto
the Registrar shall enter the particulars relating to the marriage as given in the application in the Register.

(3) If the notice referred to in sub-rule (1) cannot be served due to any laches on the part of the parties to the
 Page 110 of 139
APPENDIX II REGISTRATION OF MARRIAGE

marriage or if any objection is filed by any such party or by his or her guardian to whom the notice has been issued
or if the Registrar is not satisfied about the identity of the parties or about due solemnisation of the marriage in
accordance with the provisions of the Act, he shall, by an order in writing, refuse to enter the particulars relating to
the marriage in the register.

(4) The order of the Registrar, shall be final.

9. The application for registration of Hindu marriage shall be preserved in the office of the Registrar as permanent
record.

10. The State Government may, themselves or through specified authorities exercise general supervision over the
work of the Registrar and may call for reports or returns relating to the registration from him.

11. Any person may on application obtain certified copies of the entries in the register from the Registrar on
payment of the fee specified in rule 12 and on production of the treasury challan showing the deposit of such fees.

12. (1) Fees shall be charged by the Registrar for the purposes and at the rates as specified below:
(i) For registration of a marriage Rs. 2
(ii) For obtaining a certified copy of an entry made in the Register.Rs. 5

(2) All such fees shall be credited to the State revenues under the head “XXXVI— Miscellaneous Departments—
b—Miscellaneous—F—Miscellaneous—Registration of Birth, Deaths and Marriages’.

APPENDIX

FORM A

FORM OF HINDU MARRIAGE REGISTER

[See rule 4]
 Page 111 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Sl.No. Date of application Name and present Date and place of Age of parties at Name and present Name and address Remarks
address of the marriage the time of address of the of the witness to
applicant parties marriage guardians of the the marriage
parties to the
marriage

1 2 3 4 5 6 7 8
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APPENDIX II REGISTRATION OF MARRIAGE

FORM B

FORM OF APPLICATION FOR REGISTRATION OF MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955

[See rule 5]

To,

The Registrar under the Hindu Marriage Act, 1955 ........................District.

Sir,

We........................ (husband) and.......................... (wife) between whom a Hindu marriage was solemnised and the
particulars of which are set forth below now apply for the entry of the particulars in the Hindu Marriage Register.

Sd/- (Husband)

Sd/- (Wife)

(Particulars of the marriage)

I.
(1) Date of marriage..........................
(2) Place of marriage (full particulars, P.O.P.S., District) ..........................
II.
(1) Name of bridegroom..........................son of..........................
(2) Present address..........................
(3) Age at the time of marriage..........................
(4) Name and present address of his guardian and relationship with such guardian..........................
III.
(1) Name of bride..........................daughter of..........................
(2) Present address..........................
(3) Age at the time of marriage..........................
(4) Name and address of her guardian and relationship with such guardian with whose consent the
marriage was solemnized..........................
IV.
(1) Signature (or thumb impression) of bridegroom..........................
(2) Signature (or thumb impression) of bride..........................
(3) Signature (or thumb impression) of bridegroom’s guardians..........................
(4) Signature (or thumb impression) of bride’s guardians..........................
(5) Signature (or thumb impression) of officiating priest, if any, and his address..........................
(6) Signature (or thumb impression) of two witnesses to the marriage and their address—
1.
2.

Verification
 Page 113 of 139
APPENDIX II REGISTRATION OF MARRIAGE

We.......................... (the husband) and.......................... (the wife) do hereby solemnly affirm that the particulars of
our marriage given above are true to the best of our knowledge and belief.

Signed and verified this..........................day of..........................20...

(1).......................... (Husband).
(2).......................... (Wife).

FORM C

FORM OF NOTICE

[See rule 71)]

To,

.......................... (Name)

.......................... (Address)

Notice is hereby given to an application filed before me for registration of a Hindu marriage said to have been
solemnised on.......................... (date) at.......................... (place)

between..........................of..........................and..........................of..........................

2. If you have any statement to make regarding such marriage or the registration thereof you should do so in writing
and send it so as to reach me on or before..........................(date).

Sd/-

Registrar under the Hindu Marriage

Act, 1955 fordate

13. PUNJAB
THE PUNJAB SPECIAL MARRIAGE RULES, 1955

1.
(1) These rules may be called the Punjab Special Marriage Rules, 1955.
(2) They extend to the whole of the State of Punjab.
(3) They shall come into force at once.
2. In these rules,—
(a) “the Act” means the Special Marriage Act, 1954 (Central Act 43 of 1954).
(b) “Form” means a Form appended to these rules.
(c) “Section” means a section of the Act.
3. Every Marriage Officer shall cause his name, designation and the regular working hours of his office to be
written in English and in Hindi and Punjabi and displayed in conspicuous part of the building in which his
office is situated.
4.
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APPENDIX II REGISTRATION OF MARRIAGE

(a) Notice of any intended marriage under the Act shall be given in writing in the form specified in the
Second Schedule to the Act, to the Marriage Officer by both the parties intending to enter into the
marriage, either in person or by registered post.
(b) Where the notice is delivered in person, the fee prescribed in rule 10 shall be paid directly in cash to
the Marriage Officer. Where the notice is sent by registered post, the fee shall be remitted by Money
Order at the remitter’s expense and the receipt issued to the remitter by the Post Office through which
the remittance is made shall be attached to the notice.
(c) As soon as the notice has been received by the Marriage Officer, a distinctive serial number shall be
entered on it and such number and the date of receipt of the notice shall be attested by the signature of
the Marriage Officer. If the notice is in conformity with the requirements of the Act, it shall be entered in
the Marriage Notice Book which shall be a bound volume, the pages of which are machine-numbered
consecutively, with a nominal index attached. If the notice is not in conformity with the requirements of
theact, it shall be got rectified by the parties if they are present or returned to them by post for
rectification and retransmission within a date to be fixed. Every item of rectification shall be attested by
both the parties.
5. A true copy of the notice under the seal and signature of the Marriage Officer shall be exhibited in a
conspicuous place in his office.
6.
(a) Where an objection to the solemnisation of an intended marriage together with the fee prescribed
therefor in rule 10 has been received and recorded by the Marriageofficer, he shall, unless by an order
in writing he rejects the objection summarily on the ground that the objection is not based on
contravention of any of the conditions specified in section 4, enquire into the objection on a day to be
fixed by him. The day so fixed shall not be later than thirty days from the date of the objection.
(b) The Marriage Officer shall, at the time of recording the objection ascertain from the objector whether he
has any documents on which he relies or whether he desires any witness or witnesses to be examined
on his behalf, if the objector states that he has, the Marriage Officer shall require the objector to
produce the documents or the witnesses on the day fixed for the enquiry. If the objector desires that
summonses shall be issued to the witnesses to appear and give evidence or to produce any document,
the Marriage Officer shall issue such summonses to the witnesses cited, on payment of the process
fee prescribed therefor in rule 10 and the reasonable expenses of travelling and subsistence of the
witnesses. The enquiry relating to the objection including the production of documents and the
examination of witnesses shall be completed and the decision of the Marriage Officer arrived at within
the period of thirty days specified in section 8. If, within the prescribed period, the documents are not
produced and the witnesses do not appear before the Marriage Officer, the Marriage Officer shall take
a decision without waiting for the production of such documents or the appearance of such witnesses.
(c) The Marriage Officer shall also give notice of the date and time fixed for the enquiry to the parties to
the intended marriage.
(d) The notice or summons to any party or witness under this rule shall be in Form I or Form II, as the case
may be, and shall be sent by registered post.
(e) On the date fixed for the enquiry or on any adjourned date, the Marriage Officer shall record in his own
hand the evidence given in the course of the enquiry, his decision on the objection and the reasons
therefor.
7.
(a) An application under section 16 for the registration of a marriage celebrated in other forms shall be in
Form III.
(b) Such application shall be presented to the Marriage Officer by any one of the parties in person or sent
to him by registered post.
(c) Notice of the application under sub-rule (a) shall be given by the Marriage Officer by exhibiting a true
copy thereof under his seal and signature in a conspicuous place in his office. The notice shall also
state that objections, if any, to the registration of the marriage should be preferred by the objector in
person orally or in writing to the Marriageofficer within thirty days from the date on which the notice is
exhibited.
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APPENDIX II REGISTRATION OF MARRIAGE

(d) Any objection received within the said period together with the fee prescribed therefor in rule 10 shall
be recorded and the enquiry in respect thereto made, as early as possible, in the manner prescribed in
rule 6.
8. The Marriage Officer may, on application by both the parties to the marriage, solemnise the same at any
place at a reasonable distance from his office, provided the additional fee prescribed therefor in rule 10 is
paid and the hour is not unreasonable.
9. The Marriage Certificate Book shall be a bound volume, the pages of which are machine-numbered
consecutively with a nominal index attached. Every marriage certificate entered therein during each
calendar year shall be consecutively numbered and every authenticated copy of a certificate issued to the
parties shall bear this number and the date, month and the year in which the certificate was entered.
10. The following fees shall be levied by the Marriage Officers:—

Rs. A. P.
(i) For every notice of 3 0 0
intended marriage or
application for the registration
of a marriage (to be paid by
the parties to the marriage)...

(ii) For recording an objection 2 0 0

(to be paid by the objector).

(iii) For every enquiry into an 50 0 0

objection (to be paid by the
objector).

(iv) For every notice and for 0 0 50

every summons to a witness
to appear and give evidence
or produce a document (to be
paid by the objector).

(v) For solemnising or 10 0 0

registering a marriage(to be
paid by the parties to the
marriage).

(vi) For a certified copy of an 2 0 0

entry—(a) in the Marriage
Notice Book other than an
entry relating to an objection
or(b) in the Marriage
Certificate Book (to be paid
by the applicant).

(vii) For a certified copy of an 2 0 0

entry in the Marriage Notice
Book other than a notice or of
any other proceeding not
already provided for (to be
paid by the applicant).

(viii) For solemnising a 15 0 0

marriage at any place outside
the office of the Marriage
Office, in addition to the fee in
entry (v) (to be paid by the
parties to the marriage)

Note.—No travelling
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APPENDIX II REGISTRATION OF MARRIAGE

Rs. A. P.
allowance shall be claimed in
addition

(ix) For making a search (to 0 0 50

be paid by the applicant)—(a)
if the entry is of the current
year... (b) if the entry related
to any previous year or years.

The fees prescribed above shall be paid either in person or remitted by money order to the Marriage Officer in
advance.

A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and the
rules. The receipt books shall be bound volumes of one hundred leaves each with foils and counter-foils which shall
be machine-numbered consecutively. All moneys received by the Marriage Officer shall be credited to Government.

11. Copies of entries in the Marriage Certificate Book which Marriage Officers are required to send under section 48
to the Registrar-General of Births, Deaths and Marriages shall be certified in Form IV and shall be sent at intervals
of three months on or as nearly as possible after, the 1st January, April, July and October in each year. Should no
entries have been made in the Book during the preceding three months, a certificate to this effect shall be sent to
the said Registrar-General.

12. The Marriage Officer may, for the purpose of satisfying himself that the parties to the intended marriage have
completed the age specified in section 4(c), require them to produce birth certificate or any other satisfactory
evidence to prove their age.

14. RAJASTHAN
(1) THE RAJASTHAN HINDU MARRIAGE REGISTRATION RULES, 19561

In exercise of the powers conferred by sub-section (1) of section 8 of the Hindu Marriage Act, 1955 (25 of 1955),
the State Government is pleased to make the following rules relating to the registration of Hindu Marriages,
namely:—
1. These rules may be cited as the Rajasthan Hindu Marriage Registration Rules,
2. In these rules,—
(a) “Act” means the Hindu Marriage Act, 1955 (25 of 1955);
(b) “marriage” means a Hindu marriage solemnised under the Act;
(c) “Register” means the Hindu Marriage Register referred to in section 8;
(d) “Registrar” means the Collector of the district in which the marriage is solemnised;
(e) “section” means a section of the Act.
3.
(1) Every Registrar shall maintain a register which shall be in the form of a paste-book, consisting of blank
butts serially numbered.
(2) The Registrar shall certify under his signature, on the title page of every blank register, the number of
pages actually contained in such register, and shall also note the date on which the register was
opened by him.
(3) The registers, used by the Registrar, shall be numbered serially, beginning with the figure “1”.
4.
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APPENDIX II REGISTRATION OF MARRIAGE

(1) Every application for registration of particulars relating to a marriage shall be made to the Registrar in
the form appended to these rules within a period of thirty days from the date of the marriage. Such
application shall be signed by the parties to the marriage, and where the bride shall not have
completed the age of 18 years, it shall, in addition, be signed by her guardian in marriage with whose
consent the marriage was solemnised.
(2) Such application shall also be signed by the officiating priest, if any.
(3) It shall be accompanied by a fee of Rs. 2.
5. Every application, received by the Registrar, shall be filed by him in the register by pasting it on the first
blank butt available in the current register. The application shall be endorsed by the Registrar with the
following endorsement on the reverse thereof:—

“The application and the fee of Rs. 2 were received by me on ........... 20 ........... and the application is filed at serial
No ........... 20 ........... on page ........... of Volume ........... of the Register of Hindu Marriages, maintained under the
Hindu Marriage Act, 1955, (25 of 1955).

Dated ........... 20 ...........

(Signature) ...........

Registrar of Hindu Marriages”.

6.
(1) If any application received by the Registrar under rule 4 is not accompanied by a fee of Rs. 2, or it is
defective in any respect, the Registrar shall refuse to entertain the application, unless the parties to the
marriage pay the said fee or remedy the defect, as the case may be, within such time as may be
specified by him.
(2) If the Registrar receiving such application has no jurisdiction to receive the same, he shall send the
application to the Registrar having such jurisdiction and inform the persons making the application
accordingly.
7.
(1) Blank forms of application shall on request be supplied free of charge to the parties to a marriage by
the Registrar.
(2) The Registrar may also supply free of charge to any priest or to such other persons as he may deem fit
a reasonable number of blank forms provided that such priest or other person undertakes to render an
account of the forms, when he requests for further supply of such forms.
8. The fee for obtaining certified extracts from the register in respect of a marriage shall be Re. 1.
9. The Registrar shall pass a receipt for each amount received by him in the following form, namely:—

“Under the Hindu Marriage Act, 1955 (25 of 1955).

Received as follows:—

For registration of marriage ...........

Date ........... 20 ...........

...........

Registrar of Marriages”
10. All the fees received by the Registrar shall be credited to the State Government.

FORM OF APPLICATION

[See rule 4(1)]

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APPENDIX II REGISTRATION OF MARRIAGE

1. Date of marriage. ...........

2. Place of marriage (with sufficient ...........

particulars to locate the place).

3. (a) Full name of the bridegroom. ...........

(b) Full name of his father or guardian. ...........

(c) His age. ...........

(d) Usual place of residence. ...........

(e) Address. ...........

(f) Status of the bridegroom at the time ...........

of marriage whether
Unmarried/Widower/Divorced.

(g) Signature of the bridegroom with ...........

date

4. (a) Full name of the bride. ...........

(b) Full name of her father or guardian. ...........

(c) Her age. ...........

(d) Usual place of residence. ...........

(e) Address. ...........

(f) Status of the bride at the time of ...........

marriage whether
Unmarried/Widow/Divorced.

(g) Signature of the bride with date ...........

(h) Signature of the father or guardian in ...........

the marriage with whose consent the
marriage was solemnised.

5. (a) Full name of the officiating priest. ...........

(b) His age. ...........

(c) Usual place of residence. ...........

(d) Address. ...........

(e) Signature of the officiating priest, with ...........

date

Verification

We, ................. (the husband) ........... and ...........(the wife), do hereby verify that the particulars of our marriage
given above are true to the best of our knowledge and belief.

Signed and verified this........... day of........... 20...........

(1) ........... (Husband)

(2) ........... (Wife)

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APPENDIX II REGISTRATION OF MARRIAGE

(2) THE RAJASTHAN COMPULSORY REGISTRATION OF MARRIAGES ACT, 20092

(Act No. 16 of 2009)

An Act to provide for compulsory registration of marriage in the State of Rajasthan and matters connected therewith
‘and incidental thereto.

BE it enacted by the Rajasthan State Legislature in the Sixtieth Year of the Republic of India, as follows:—

1. Short title, extent and commencement.—

(1) This Act may be called the Rajasthan Compulsory Registration of Marriages Act, 2009.
(2) It shall extend to the whole of the State of Rajasthan.
(3) It shall come into force on the date of its publication in the Official Gazette.

2. Definitions.—In this Act, unless the subject or context otherwise requires,—

(a) “certificate of marriage” means a certificate of marriage issued under section 9;
(b) “Marriage” includes re-marriage;
(c) “Memorandum” means the Memorandum for registration of marriage mentioned in section 7;
(d) “Register” means a register of marriage mentioned under section 13;
(e) “Registrar” means the Registrar of marriage appointed under section 4;
(f) “District Marriage Registration Officer” means the District Marriage Registration Officer appointment under
section 5;
(g) “Registrar-General” means the Registrar-General designated as such under section 6;
(h) “Solemnize” means to enter into a marriage in any form or manner;
(i) “To submit” includes send by registered post-acknowledgment due.

3. Registration of marriage to be compulsory.—Registration of every marriage solemnized between the person

who are citizens of India in the State of Rajasthan after the commencement of this Act shall be compulsory.

4. Appointment of Registrar.—The State Government may, by notification in the Official Gazette, appoint, either
by name or by virtue of office, as many persons as it thinks necessary to be the Registrar of marriage for such local
areas as may be prescribed.

5. Appointment of District Marriage Registration Officer.— The State Government may, by notification in the
Official Gazette, appoint either by name or by virtue of office District Marriage Registration Officer for the district
concerned.

6. Registrar-General.— The State Government may, by notification in the Official Gazette, designate a senior
officer of the concerned department as Registrar-General of marriages for the State of Rajasthan to monitor and
review the effective implementation of this Act.

7. Memorandum for Registration of Marriage.— Memorandum for registration of a marriage shall be in such
form, as may be prescribed.

8. Duty to submit the memorandum.—

(1) The parties, or in case the parties have not completed the age of twenty-one years, the parents or as the
case may be, guardian of the parties, shall be responsible to submit the memorandum within a period of
thirty days from the date of solemnization of the marriage to the Registrar within whose jurisdiction the
marriage is solemnized or both or any of the parties resides.
(2) A memorandum which is not submitted within the time-limit specified in sub-section (1), may be submitted
at any time on payment of penalty as may be prescribed.
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APPENDIX II REGISTRATION OF MARRIAGE

9. Registration of marriage and marriage certificate.— On receipt of the memorandum completed in all respects,
the Registrar shall register the marriage in the prescribed manner and shall issue a certificate of marriage in the
prescribed form to the person who has submitted the memorandum.

10. Registration of marriage solemnized prior to the commencement of this Act.—

Notwithstanding anything contained in this Act, any marriage solemnized prior to the commencement of this Act
may be registered on submitting a memorandum in the form prescribed under section 7 and on payment of such fee
as may be prescribed.

11. Non-registration not invalidate the marriage.— No marriage shall be deemed to be invalid solely for the
reason that such marriage has not been registered under this Act.

12. Penalty.—
(1) Any person—
(a) Who, being responsible to submit a memorandum under section 8, fails to submit such memorandum
within the period specified therein; or
(b) Who makes any statement or declaration in a memorandum which is false in any material particular
and which he knows or has reason to believe to be false, shall, on conviction, be punishable with fine
as may be prescribed.
(2) No prosecution for any offence punishable under this Act shall be instituted except by an officer authorized
by the State Government in this regard.

13. Maintenance of the register and record.— The Registrar shall keep and maintain a register of marriages in
such form and in such manner as may be prescribed and shall also maintain such other relevant records.

14. Register and record to be open for public inspection and certified copies of extracts to be given.—
(1) The Register and the record maintained under this Act, on an application made to the Registrar and on
payment of such fee, as may be prescribed, shall, at all reasonable time, be open for public inspection.
(2) On an application being made in this behalf and on payment of such fee, as may be prescribed, the
Registrar shall furnish to the applicant a copy of any extract of the Registrar or record maintained by him
under this Act.

15. Registrar to furnish a copy of the certificate or marriage to the District Marriage Registration Officer.—
When the Registrar registers a marriage under this Act, he shall immediately thereupon send a copy of the
certificate of marriage to the District Marriage Registration Officer which will be helpful for him to monitor and review
the work of the registration of marriages.

16. Registrar to be the public servant.—Every Registrar and every employee in the office of the Registrar shall
while acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be a public servant
within the meaning of section 21 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860).

17. Indemnity.— No suit, prosecution or other legal proceeding shall be instituted against any person for anything
which is done or intended to be done in good faith under this Act or the rules made there under.

18. Power to remove difficulties.—

(1) If any difficulty arises in giving effect to the provisions of this Act, the State Government by notification in
the Official Gazette, make such orders not inconsistent with the provisions of this Act, as appear to it
necessary or expedient for removing the difficulty.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before the State
Legislature while it is in session.

19. Power to make rules.—

(1) The State Government may, by, notification in the Official Gazette, make rules for carrying out the
purposes of this Act.
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APPENDIX II REGISTRATION OF MARRIAGE

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or
any of the following matters, namely:—
(a) the form of memorandum;
(b) fee to be accompanied with the memorandum;
(c) the form of the certificate of the marriage;
(d) the form of the Register and the manner in which such register shall be maintained;
(e) other record which shall be kept and maintained by the Registrar and the form and manner in which
such record shall be maintained;
(f) fee for the inspection of the register and other records;
(g) the form of the application and the fee for grant of the certified copies of the extracts of the register and
other records;
(h) any other matter which is to be or may be prescribed by the State Government for carrying out the
purposes of this Act.
(3) All rules made under this Act shall be laid, as soon as may be, after they are so made, before the House,
of the State Legislature, while it is in session for a period of not less than fourteen days which may be
comprised in one session or in two successive sessions and if before the expiry of the session in which
they are so laid or of the session immediately following the House of the State Legislature makes any
modification in any such rules or resolves that any such rules should not be made, such rules shall
thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that
any such modification or annulment shall be without prejudice to the validity of any thing previously done
thereunder.

20. Act not to apply to certain marriages.—This Act shall not apply to marriages solemnized under the Indian
Christian Marriage Act, 1872 (Central Act No. 15 of 1872), the Parsi Marriage and Divorce Act, 1936(Central Act
No. 03 of 1936) or the Special Marriage Act, 1954 (Central Act No. 42 of 1954).

21. Repeal and Savings.—

(1) Guidelines for compulsory registration of marriage issued by the Home Department vide Order No. F. 6
(19) Home-13/2006 dated 22-5-2006 are hereby repealed.
(2) Notwithstanding such repeal all the marriages registered in accordance with such guidelines shall be
deemed for all purposes the marriages registered under the provisions of this Act and all the certificates
issued under the said guidelines shall be deemed to have been issued und er the provisions of this Act.

15. TAMIL NADU

THE MADRAS HINDU MARRIAGE (REGISTRATION) RULES, 19671

(G.O.Ms. No. 632, Home, 28 th February, 1967)

In exercise of the powers conferred by section 8 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955), the
Governor of Madras hereby makes the following rules:—

1. Short title, extent and commencement.—

(1) These rules may be called The Madras Hindu Marriage (Registration) Rules, 1967.
(2) They extend to the whole of the State of Madras.
(3) They shall come into force on the first day of April, 1967.

2. Definitions.— In these rules, unless the context otherwise requires,—

(a) “the Act” means the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
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APPENDIX II REGISTRATION OF MARRIAGE

(b) “Form” means a form appended to these rules;

(c) “Government” means the State Government;
(d) “Marriage Registrar” means a person appointed under rule 3 to perform the duties of a Marriage Registrar
under these rules;
(e) “Parties to a marriage” means bridegroom and bride;
(f) “Registrar-General of Births, Deaths and Marriages” means the Registrar-General of Births, Deaths and
Marriages appointed for the Madras State under the Births, Deaths and Marriages Registration Act, 1886
(Central Act 6 of 1886);
(g) “section” means a section to the Act.

3. Appointment of Marriage Registrars.— The Government may, by notification, appoint as many persons as
may be necessary as Marriage Registrars for the purpose of registering Hindu Marriages under the Act with
jurisdiction over such area as may be specified in the notification.

4. Name and designation of the Marriage Registrar to be displayed conspicuously.— Every Marriage
Registrar shall cause his name and designation as ‘Registrar of Hindu Marriages’ and the regular working hours of
his office, to be written in English and in Tamil and displayed in a conspicuous part of the building in which his office
is situated.

5. Application for registration of marriage and mode of presentation.— An application for the registration of a
Hindu Marriage shall be in Form I. It shall be presented to the Marriage Registrar either in person by the husband or
wife at any time during office hours on a working day or be sent to him by registered post, acknowledgment due, so
as to reach him within thirty days from the date of marriage:

Provided that the Marriage Registrar may entertain an application whether presented in person or sent by
registered post after the expiry of the said period of thirty days but within a period not exceeding three months from
the date of marriage, if he is satisfied that the husband or wife was prevented by sufficient cause from filing the
application in time. Where such application is filed after the expiry of the period of three months aforesaid, a copy of
the application together with a copy of the reasons for the delay shall be submitted by the Marriage Registrar to the
Registrar-General and entertained after obtaining his special permission.

6. Payment of fees for application for registration of marriage.— Where the application is presented in person,
the fee prescribed therefor in rule 16, shall be paid in cash to the Marriage Registrar. Where the application is sent
by registered post, the fee shall be remitted by money order to the Marriage Registrar at the remitter’s expense and
the receipt issued to the remitter by the post office through which the remittance is made shall be attached to the
application.

7. Serial number and date of receipt of application to be attested by Marriage Registrar.— As soon as an
application has been received by the Marriage Registrar and the fee prescribed has been paid, a distinctive serial
number shall be entered on the application and such number and the date of receipt of the application shall be
attested by the Marriage Registrar.

8. Scrutiny of application.— The Marriage Registrar shall, on receipt of the application, scrutinize it or have it
scrutinized:

If,—
(i) the application is incomplete; or
(ii) the prescribed fee has not been paid; or
(iii) any of the conditions prescribed in sections 5, 6 and 7 of the Act has not been satisfied; or
(iv) the application has not been presented within thirty days from the date of the marriage and the delay in
filing the application is not condoned under rule 5, the Marriage Registrar shall refuse to register the
marriage and pass a brief order to that effect and communicate it to the parties to the marriage:
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APPENDIX II REGISTRATION OF MARRIAGE

Provided that the Marriage Registrar may return the application to the applicant by post for supplying any omission
or for rectifying any defect or for clearing any doubt, and for resubmitting the application to the Marriage Registrar
within fifteen days from the date of receipt of the application by the applicant with his endorsement thereon.

9. Issue of notice to the parties before registration.— If the application is in order and if the parties to the
marriage and the witnesses are present, the Marriage Registrar may register the marriage; if the said persons are
not present, the Marriage Registrar shall give notice in Form V to the parties to the marriage fixing a time and date
which shall not be less than ten days from the date of receipt of the notice by the parties to the marriage for
registration of the marriage and requiring them to bring the witnesses who have signed in the application, and also
the guardian in marriage, if any, for attesting the entries in the Marriage Register in his presence.

10. Appearance of parties to the marriage and witnesses before the Marriage Registrar.— On the date and
time fixed for registration of the marriage, the parties to the marriage, the three witnesses who have signed in the
application for registration and also the guardian in marriage, if any, shall appear before the Marriage Registrar and
sign the entry in the Hindu Marriage Register in his presence. The Marriage Registrar shall then sign the entry in
the Hindu Marriage Register.

11. Place of registration of marriage.— The registration shall be affected in the office of the Marriage Registrar
within whose jurisdiction the marriage was solemnized or within whose jurisdiction, either or both parties to the
marriage have their permanent place of residence or at any place outside his office provided there is an application
in writing in this behalf and signed by either of the parties to the marriage and the additional fee prescribed therefor
in rule 16 is paid and the hour is not unreasonable.

12. Hindu Marriage Register.— The Hindu Marriage Register shall be in Form II and shall be maintained by the
Marriage Registrar. It shall be a bound book with pages machine-numbered and with a nominal index attached.

13. Entries in the Hindu Marriage Register to be serially numbered.— All entries in the Hindu Marriage Register
shall be serially numbered and such procedure shall be adopted for each calendar year.

14. Copies of entries to be affixed with official seal.— All copies of entries in the Hindu Marriage Register issued
by the Marriage Registrar shall be stamped with his official seal.

15. Register of fees.— All fees levied and collected under these rules shall be entered in a register of fees which
shall be maintained in Form III.

16. Schedule of fees.— The following fees shall be levied by the Marriage Registrar,—

Rs. P.
(i) For the registration of a marriage (to be paid by the parties to the marriage) which will be exclusive of any
other fees levied by devasthanams for marriages in temples. …5.00
(ii) For a certified copy of an entry in the Hindu Marriage Register (to be paid by the applicant). …2.00
(iii) For making a search (to be paid by the applicant).
(a) if the entry is of the current year. …1.00
(b) if the entry relates to any previous year or years. …1.00

(for each such year)

Provided that no search fee shall be levied for grant of a certified copy of an entry in the Hindu Marriage Register on
application at the time of registration of the marriage: Provided further that on application fee of 25 Paise in the
shape of court-fee labels affixed to the application shall be levied for each copy application presented for grant of
such certified copy.
(iv) For registering a marriage at any place outside the office of the Marriage Registrar, to be appropriated by
the Marriage Registrar, in addition to the fee inentry (1) above (to be paid by the parties to the marriage) .
…10.00

Full name of the husband.

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APPENDIX II REGISTRATION OF MARRIAGE

The fees prescribed above shall be paid either in person or remitted by money order to the Marriage Registrar.

16A. Refund.—.The Marriage Registrar shall refund any fee paid to him in excess of the amount prescribed or any
fee that is unearned by Government. Provided that the previous sanction of the District Registrar shall be obtained,
if the Marriage Registrar is not a District Registrar.

17. Receipt and remittance of fees received.— A receipt duly signed by the Marriage Registrar shall be issued
for all fees received by him under these rules. The fee receipt shall be in Form IV. The receipt books shall be bound
volumes of one hundred leaves each with foils and counterfoils which shall be machine-numbered consecutively. All
moneys received by the Marriage Registrar under these rules shall be remitted into the local treasury or such bank,
as may be specified by the Registrar-General from time to time.

18. Submission of returns.— The Registrar-General of Births, Deaths and Marriages, Madras, shall be the Chief
Controlling Authority and shall have control over all Marriage Registrars for the purposes of these rules. The
Registrar-General shall have the powers to issue executive instructions to the Marriage Registrars for the proper
administration of the Act and the rules framed thereunder and prescribe the submission of such statements, returns
and periodicals as may be desired by him in this regard. Marriage Registrars shall send to the Registrar-General
copies of entries in the Hindu Marriage Register in Form VI at intervals of three months on, or as nearly as possible
after the Ist January, April, July and October in each year. If no entries have been made in the Hindu Marriage

Register during the preceding three months, a certificate to that effect shall be sent to the Registrar-General.

FORM I

(Rule 5)

APPLICATION FOR REGISTRATION OF MARRIAGE UNDER THE MADRAS HINDU MARRIAGE

(REGISTRATION) RULES, 1967

We, the persons who have signed hereunder as husband and wife hereby apply for the registration of our marriage
under the Madras Hindu Marriage (Registration) Rules, 1967, and for that purpose furnish the following
particulars:—
1. Name of the husband.
2. Full name of the father or the husband.
3. Full name of the wife.
4. Full name of the father of the wife.
5. Full name of the guardian in marriage of the wife, if any.
6. Age (date of birth) of the husband.
7. Age (date of birth) of the wife.
8.
(a) Occupation of the husband.
(b) Occupation of the wife.
9. Permanent place of residence of the husband before marriage.
10. Permanent place of residence of the wife before marriage.
11. The date of solemnization of the marriage.
12. The place of solemnization of the marriage.
(a) Town or village with full address.
(b) Taluk.
(c) District.
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APPENDIX II REGISTRATION OF MARRIAGE

13. We hereby declare,—

(i) that a valid marriage was solemnized between us and that the marriage is capable of being registered
under section 8 of the Hindu Marriage Act, 1955 (Central Act 25 of 1955);
(ii) that the conditions laid down in sections 5 and 6 of the said Act have been satisfied;
(iii) that the particulars given in this application are true to the best of our knowledge and belief; and
(iv) that the three witnesses who have signed below were present at the time of solemnization of the
marriage.

Signature.

(Husband)

(Wife)

Station:

Date:

14. Name, address etc. of witnesses.

Name Father’s name Full address Signature

(1) (2) (3) (4)

1.

2.

3.

FORM II

(Rule 12)

HINDU MARRIAGE REGISTER

Serial number of marriage of year 20....

1.
(a) Full name of Husband.
(b) Caste.
(c) Age (date of birth).
(d) Occupation and address before marriage.
2.
(a) Full names of parents of the husband. Father Mother
(b) Caste.
(c) Their age.
(d) Occupation and address.
3.
(a) Full name of wife.
(b) Caste.
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APPENDIX II REGISTRATION OF MARRIAGE

(c) Age (date of birth).

(d) Occupation and address before marriage.
4.
(a) Full names of parents or guardian in marriage, if any of the wife. Father Mother
(b) Caste.
(c) Their age.
(d) Occupation and address.
5. Name and address of the person who solemnized the marriage.
6. Whether the marriage was solemnized under customary rites and ceremonies of either parties to the
marriage as required under sub-sections (1) and (2) of section 7 of the Act.
7. Place, namely, the village, taluk and district where the marriage was solemnized, with full address.
8. The date on which the marriage was solemnized.
9. Signature of the husband.
10. Signature of the wife.
11. Signature with their names in block letters of the witnesses and their addresses—
(1)
(2)
(3)
12. Signatures of the parent or guardian in marriage, if any.
(1)
(2)

Certified that the marriage of which particulars are given above has been registered by me under the Madras Hindu
Marriage (Registration) Rules, 1967, this the .........................day of .........................20.........................
Station: Signature of the Marriage Registrar
Date:

FORM III

(Rule 15)

REGISTER OF FEES

Name of Office and Registration District

Year

Month
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APPENDIX II REGISTRATION OF MARRIAGE

Serial number Date Particulars (i.e. Amount of fee Section of Act or When remitted into Challan number Remarks
from whom collected Rule under which the Treasury of and date
received and for chargeable Bank
what purpose, etc.)

(1) (2) (3) (4) (5) (6) (7) (8)

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APPENDIX II REGISTRATION OF MARRIAGE

FORM IV

(Rule 17)

FEE RECEIPT

(Duplicate)

1. Serial number.
2. Date of receipt.
3. From whom received.
4. On what account received.
5. Section of Act or rule under which chargeable.
6. Amount of fees.

Station:

Date Signature of the Marriage Registrar

FORM IV

(Rule 17)

FEE RECEIPT

(Original)

1. Serial number.
2. Date of receipt.
3. From whom received.
4. On what account received.
5. Section of Act or rule under which chargeable.
6. Amount of fees.

Station:

Date: Signature of the Marriage Registrar

FORM V

(Rule 9)

NOTICE

Before the Marriage Registrar (Place).

In the matter of the Hindu Marriage (Registration) Rules, 1967. In the matter of application to register marriage
between.@@@

A.B.

and (Give names and addresses).

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APPENDIX II REGISTRATION OF MARRIAGE

C.D.

To

Whereas an application for the registration of marriage between AB and CD has been received by the Marriage
Registrar on...................you are hereby required to appear in person before the undersigned at...................
on...................in his office along with....the under-mentioned witnesses who have signed in the application for
registration and also the guardian in marriage, if any, for the purpose of signing the entries in the Marriage Register.

Date:

Place: (Seal) (Signature)

...................

Marriage Registrar

Names and addresses of the witnesses.—

1.

2.

3.

Name and address of the guardian in marriage.

FORM VI

(See Rule 18)

FORM OF CERTIFICATE

Certified that the above entries from the Hindu Marriage Register in this office bearing serial number(s) are true
copies of all the entries made in the Marriage Register kept by me, for the three months ending.

OR

Certified that no entries have been made in the Hindu Marriage Register in this office during the three months
ending.

Station: (Signature)

...................

Marriage Registrar

(Seal)

16. UTTAR PRADESH

THE UTTAR PRADESH HINDU MARRIAGE REGISTRATION RULES, 1973

English translation of Nyaya (Adhinasth Nyayalaya) Anubhag, Noti. No. 380617-K—2-664-55, dated 15th
September, 1973, Published in u.P. Gazette, Extra., dated 15th September, 1973, pp. 7-12
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APPENDIX II REGISTRATION OF MARRIAGE

In exercise of the powers conferred by section 8 of the Hindu Marriage Act, 1955 (25 of 1955), the Governor is
pleased to make the following rules:—

1. Short title, extent and commencement.—

(1) These rules may be called the Uttar Pradesh Hindu Marriage Registration Rules, 1973.
(2) They shall extend to the whole of Uttar Pradesh.
(3) They shall come into force on such date as the State Government may by notification in the Gazette
appoint in this behalf.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “the Act” means the Hindu Marriage Act, 1955 (25 of 1955);
1[(b)“Registrar-General” means the Inspector-General of Registration appointed under section 3 of the
Registration Act, 1908 (16 of 1908);]
(b) “marriage” means a Hindu Marriage to which the Act applies;
(c) “Registrar” means the Registrar of Hindu Marriages having jurisdiction under rule 3;
(d) “Registrar of the District” means the Registrar of the District appointed under section 6 of the
Registration Act, 1908 (16 of 1908) and includes the officer performing the duties of a Registrar under
sections 10 and 11 of that Act;
(e) “Sub-Registrar” means a Sub-Registrar appointed by the State Government under the Registration Act,
1908 (16 of 1908), and includes a person so appointed under section 12 of that Act.

3. Jurisdiction of Registrar and State Registrar.—For the purpose of these rules, every Sub-Registrar within the
limits of this jurisdiction and every Registrar of the District within the district shall exercise the powers and perform
the duties of Registrar of Hindu Marriages.

4. Registration of Marriages.—
(1) The parties to any marriage may, on payment of the fee specified in rule 10, have the particulars relating to
marriage entered in the Hindu Marriage Register kept for the purpose in the office of the Registrar.
(2) An application for registration of a marriage shall be made in duplicate to the Registrar within whose
jurisdiction the marriage is solemnised or within whose jurisdiction the husband permanently resides and
shall be in Form A of the Schedule to these rules:

Provided that, if the application is made to the Registrar within whose territorial jurisdiction the marriage is
solemnised, and the husband does not permanently reside within such jurisdiction, it shall be made in triplicate and
the third copy of the application shall be forwarded by the Registrar receiving the application to the Registrar within
whose jurisdiction the husband permanently resides:

Provided further that an application for Registration of marriage shall ordinarily be presented to a Sub-Registrar
having jurisdiction, but the Registrar of the District may in his discretion also entertain any such application.
2[(3)The application mentioned in sub-rule (2) shall be accompanied by a certificate by a member of Parliament,
member of the State Legislature, Gazetted Officer, Pradhan of a Gaon Sabha, Sarpanch of a Nyaya Panchayat,
Pramukh of a Kshettra Samiti, or the President of any other Local Body and where any party to the marriage
resides outside India by the Indian Consul or Vice-Consul, as to the identity of the parties to the marriage and the
correctness of other particulars appearing in the application, and shall be presented personally to the Registrar
concerned; provided that where the applicant resides outside India it may be sent through Indian Consul or Vice-
Consul by registered post. Where the person presenting the application so desires he shall be given a receipt for
the application in the following form:—

“Received an application for registration of marriage between ................... and

................... presented ................... by...................

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APPENDIX II REGISTRATION OF MARRIAGE

Dated (Signature) ...................

[Registrar of Hindu Marriages...................]”

(4) Where the application is sent by registered post the fee shall be remitted by money order at the remitter’s
expense and the receipt issued to the remitter by the post office through which the remittance is made shall be
attached to the application.

5. Hindu Marriage Register.—

(1) A Hindu Marriage Register shall be kept in the form of a file book consisting of serially numbered butts.
(2) The Registrar shall certify under his signature, on the title page of every blank register issued to him, the
number of pages actually contained in such register and shall also note the date on which the register was
received by him.
(3) At the close of every calendar year, the Registrar shall certify the number of applications registered during
the year and wherever a register is completed the Registrar shall also certify the number of applications
registered in that particular register.
(4) The registers used by the Registrar shall be serially numbered.

6. Filing of application.—Each application duly made to the Registrar under rule 4 shall be filed by him in the
Hindu Marriage Register by pasting it on the first blank butt available in the register.

7. Endorsement on application.—
(1) Each application and its duplicate and also its triplicate wherever required shall be endorsed by the
Registrar with the following endorsement duly signed by him, on the reverse thereof namely:—

“The application was received by me on................... 20...................and it is filed at serial No................... of

20................... on page ...................of volume ................... of the Hindu Marriage Register maintained under the
Hindu Marriage Registration (Uttar Pradesh) Rules, 1973.

(Signature)

Dated................... Registrar of Hindu Marriages”.

(2) The Registrar shall as soon as may be, inform the applicants in writing that their marriage has been duly
registered.

8. Duplicates.—On or before the seventh day of each month the Sub-Registrar shall send by registered post to the
Registrar of the district all duplicate copies of the applications received by him during the preceding month along
with a covering letter indicating therein the serial numbers of the duplicate copies of the application sent therewith
and if no application was received in the previous month then a letter indicating that no application was received.

9. Filing of the applications by Registrar.—On receipt of the duplicate copies of the application sent under rule 8, the
Registrar of the district shall file or cause to be filed such duplicate copies by pasting them in registers maintained
for that purpose by the Registrar.
1[10. Fees.—
(1) The fee for entertaining an application for registration of a marriage shall be—
(i) Rs. 2.00, if the application for registration of a marriage is made within two months of the date of its
solemnisation;
(ii) Rs. 4.00, if the application for registration of a marriage is made after two months of the date of its
solemnisation, and shall be paid to the Registrar either in cash or by money order.
(2) Certified extract from the Hindu Marriage Register, shall on an application to theregistrar or Registrar-
General, be given by him on payment of a fee of Rs. 2.00.
(3) For making a search, the fee shall be—
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APPENDIX II REGISTRATION OF MARRIAGE

(i) if the entry relates to the current year Re. 1.00;

(ii) if the entry relates to the immediately previous year Rs. 1.50 P.;
(iii) if the entry relates to the year before that, Rs. 2.00, and so on, with an addition of 50 P. for each year.]

11. Form for receipt.—A receipt from the receipt book in Form No. 8 of Appendix I of the Registration Manual, Part
II shall be issued for acknowledging receipt of the fees paid under these rules.

12. Cash-book.—The Registrar shall maintain or cause to be maintained a cash-book in Form B of the Schedule.
All fees received under the Rules shall be brought to account in the cash-book every day and the Registrar shall
sign the same in token of his verifying the correctness of the day’s total collection of fees.

13. Power of Registrar.—

(1) If an application for registration of marriage or for a certified extract from the Marriage Register is
incomplete or defective in any respect or is not accompanied by the fee specified in rule 10, the Registrar
shall require the applicant to remove the defect or pay the said fee, as the case may be, within such time
as may be specified by him failing which the application shall be rejected.
(2) If the Registrar receiving such application has no jurisdiction to receive the same, he shall return it to the
applicant for being presented to the proper authority.
(3) Where an objection to any application for registration is received by a Sub-Registrar, he shall refer the
same to the Registrar of the district, who shall decide the same as also objections received by him after
hearing the parties affected thereby and his decision subject to any decree or order of a competent court
be final, insofar as the question of action on the application for registration is concerned.
(4) The particulars of all applications which are returned or of which registration is refused as aforesaid shall
be noted in a register in Form C of the Schedule appended to these rules.

14. Superintendence.—The Registrar shall perform his duties and exercise his powers under the general
superintendence of the Registrar-General.

15. Forms.—Blank forms of application for registration shall be supplied by the Registrar free of charge to the
parties to a marriage. The parties may, however, at their option use legibly typed forms.

16. Preservation of Registers and Records.—

(1) The Hindu Marriage Registers and the indices referred to in rule 17 shall, after six years of their
completion, be consigned to, and preserved permanently in the Central Record Room at the Headquarters
of the registration district.
(2) All other records and papers such as receipt book, cash books, applications for extracts from the Register,
etc., shall be destroyed by the Registrar after the expiry of a period of six years.

17. Indexing of entries in the register of marriage.—All the entries in the Hindu Marriage Register shall be
indexed and the indices shall be in two forms, namely, one in the name of the bridegroom and the other in the name
of the bride, and such indices shall be available for inspection to any person on payment of inspection fee of fifty
paise per year of record.

SCHEDULE
1[FORM A

See rule 4(2) of the Uttar Pradesh Hindu Marriage Registration Rules, 1973]

APPLICATION FOR REGISTRATION OF HINDU MARRIAGE

To,

The Registrar of Hindu Marriages,

 Page 133 of 139
APPENDIX II REGISTRATION OF MARRIAGE

District,

Uttar Pradesh

Sir

A Hindu Marriage in accordance with the provisions of the Hindu Marriage Act, 1955, has been solemnised
between us, the undersigned parties, on and we request that the following particulars of our marriage be registered
in the Hindu Marriage Register:—

PARTICULARS OF MARRIAGE

1. Date of marriage.
2. Place of marriage (with sufficient particulars to locate the place).
3. Particulars of the bridegroom:
(a) Full name and occupation
(b) Domicile
(c) Age (which shall not be less than 21, see section 5)
(d) Usual place of residence
(e) Permanent address
(f) Address at the time of application
(g) Status at the time of marriage, whether Unmarried/Widower/Divorced

Signature of the Bridegroom

Dated...........................
4. Particulars of the bride:
(a) Full name
(b) Domicile
(c) Age (which shall not be less than 18, see section 5)
(d) Usual place of residence
(e) Permanent address
(f) Address at the time of application
(g) Status at the time of marriage, whether Unmarried/Widower/Divorced

Signature of the Bride

Dated...........................
5. Full particulars of the bridegroom’s fathers:
(a) Full name
(b) Age
(c) Occupation
(d) Usual place of residence
(e) Address at the time of application
(f) Whether alive or dead
 Page 134 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Dated........................... Signature of the father of the bridegroom

(Note.—Signature of the bridegroom’s father is not obligatory.)

6. Particulars of the bride’s father or other guardian:
(a) Full name
(b) Age
(c) Occupation
(d) Usual place of residence
(e) Address at the time of application
(f) Relationship of guardian with bride (see section 6)

Dated........................... Signature of the father or guardian of the bride

(Note.—Signature of the bride’s father or guardian is not obligatory where the bride’s age is not less than 18, on the
date of application but signature of her father or guardian is necessary where on the date of application she is
below 18 and the marriage was performed in accordance with the law as in force on the date of marriage.)
7. Particulars of the officiating priest:
(a) Full name
(b) Age
(c) Usual place of residence
(d) Address

(Note.—It shall not be obligatory to enter particulars of the officiating priest, if the marriage took place more than a
year before the date of the application. His signature is not obligatory.)

Dated........................... Signature of the Officiating Priest

Declaration.—I solemnly declare that the particulars given in this application, insofar as they relate to myself and to
the solemnisation of marriage are true to the best of my knowledge and the rest are based on information received
and believed to be true.
8. Signature of Bridegroom Signature of Bride

Dated........................... Dated...........................
9. 1. Witness
2. Witness

(a) Full name (a) Full name

(b) Address (b) Address

Signature........................... Signature...........................

Dated........................... Dated...........................

Certificate by...........................designation...........................(a Member of Parliament/Member of the State

Legislative/Gazetted Officer/Pradhan/Sarpanch/Pramukh/President of a local body/Consul/Vice Consul), as to the
identity of the bridegroom and the bride and other particulars of this application is appended herewith.

Note.—Certificate may be by more than one of such person where one cannot certify to the identity of both the
parties or all other particulars.
 Page 135 of 139
APPENDIX II REGISTRATION OF MARRIAGE

FORM B

(See rule 12 of the Uttar Pradesh Hindu Marriage Registration Rules, 1973)

CASH BOOK
 Page 136 of 139
APPENDIX II REGISTRATION OF MARRIAGE

Receipt No. and Details of amount Amount Rs. P. Signature of Amount credited Challan No. and Sig. of Registrar Remarks
date of realisation realised Registrar of into treasury Rs. date of Marriages and
Marriage and date P. date
1 2 3 4 5 6 7 8
 Page 137 of 139
APPENDIX II REGISTRATION OF MARRIAGE

FORM C

(See rule 13 of the Uttar Pradesh Hindu Marriage Registration Rules, 1973)

REGISTER OF APPLICATION RETURNED OR REJECTED

Serial No. Date of presentation Parties to the Whether refused or Reasons for refusal
and the name of the marriage and the date returned or return
person presenting of marriage
the application
1 2 3 4 5

17. WEST BENGAL

THE HINDU MARRIAGE REGISTRATION RULES, 19581

In exercise of the powers conferred by section 8 of the Hindu Marriage Act, 1955 (25 of 1955), the Governor is
pleased to make the following rules for the registration of Hindu Marriage, namely:—

1. Short title.—These rules may be called the Hindu Marriage Registration Rules,

2. Definitions.—In these rules, unless there is anything repugnant in the subject or context,—
(i) ‘the Act’ means the Hindu Marriage Act, 1955;
(ii) ‘Registrar’ means the person appointed for registration of Hindu Marriages under the Act; and
(iii) ‘Schedule’ means a Schedule to these rules.

3. Registrars to Register marriage.—A Hindu marriage which has been solemnized may be registered by a
Registrar appointed under the Act.

4. Appointment of Registrars.—The State Government may, by order published in the Official Gazette, appoint
any registering officer appointed under the Indian Registration Act, 1908, or any other person to be a Registrar,
either by name or by virtue of his office, for such area as may be specified by the State Government for registering
Hindu marriages.

5. Application for Registration.—Either party to a Hindu Marriage which has been solemnized or his or her
guardian may apply, in the form specified in Schedule A, for registration of the marriage to the Registrar for the local
area in which the marriage was solemnized or in which the applicant resides:

Provided that in the case of a minor, the application on his or her behalf shall be made by the guardian of such
minor.

6. Procedure for Registration.—

(1) When an application for registration of a Hindu Marriage is presented before the Registrar by a party to the
marriage, the Registrar shall, except when both the parties to the marriage and their guardians appear
before him, personally and are identified to his satisfaction, give notice of the application in the form
specified in Schedule B to the other party and his or her guardian by registered post and make such
inquiries as he thinks fit regarding the marriage.
(2) On being satisfied about the fact of marriage, the Registrar shall register the marriage and enter the
particulars thereof, as given in the application for registration, in the Hindu Marriage Register which shall
be in the form specified in Schedule C.
 Page 138 of 139
APPENDIX II REGISTRATION OF MARRIAGE

(3) If the notice referred to in sub-rule (1) cannot be served or if any objection is filed by the other party or his
or her guardian to whom the notice has been issued or if the Registrar is not satisfied about the identity of
her parties or about the fact of marriage, he shall, by an order in writing, refuse to register the marriage.

7. Appeal against refusal to register.—

(1) Any person aggrieved by an order refusing to register a marriage may, within thirty days, from the date of
the order, appeal—
(a) in the case of an order of refusal passed by any Registrar who is a registering officer below the rank of
a District Registrar appointed under the Indian Registration Act, 1908, to the District Registrar for the
area appointed under the said Act, and
(b) in any other case, to the Inspector-General of Registration appointed under the Indian Registration Act,
1908.
(2) If the appellate authority, after such inquiry as he may think fit to make, be satisfied about the identity of the
parties to the marriage and the fact of marriage, he shall order that the marriage be registered and
communicate the order to the Registrar concerned; and if he be not so satisfied he shall dismiss the
appeal.
(3) On receipt of the order of the appellate authority referred to in sub-rule (2) the Registrar concerned shall
register the marriage.
(4) The order of the appellate authority shall be final.

8. Application to be preserved and copies of entry to be granted.—

(1) The application for registration of Hindu marriage shall be preserved in the office of the Registrar and shall
be bound in convenient volumes periodically and shall be open for inspection on such days and during
such hours as the Registrar’s office remains open.
(2) Any person may, on application, obtain certified copies of the entries in the Hindu

Marriage Register from the Registrar on payment of the fee prescribed therefor in rule 9.

9. Fees.—
(1) Fees shall be charged by the Registrar for the purposes and at the rates specified below:
(i) For registration of a marriage—Rs. 2;
(ii) For a certified copy of any entry in the Hindu Marriage Register—Rs. 5.
(2) All fees realised under sub-rule (1) shall be credited to the State revenues.

10. General supervision.—The Inspector-General of Registration appointed under the Indian Registration Act,
1908, shall exercise general supervision over the work of the Registration and shall have power to call for reports or
returns from them relating to such work.

1 G.O. Ms. No. 654, Home (General-A), dated 22nd March, 1965, published in rule supplement in Part II of the Andhra
Pradesh Gazette No. 13, dated 22nd April, 1965.
* This fee may be appropriated by the Marriage Officer. No T.A. shall, however, be claimed in addition.
1 Vide Notification II-R-2-201/97 (Part) 1647 dated 7-8-2006.
1 Noti. No. 13401/21-Vetting/C.G./06, dated 20th November, 2006, published in Chhattisgarh Government Rajpatra
(Asadharan), dated 16-8-2007 (w.e.f. 16-8-2007).
1 Ins. by Noti. No. 5837/D-1701/21-B/08, dated 20-6-2008.[or Superintendent of Police], for verification.
1 Ins. by Noti. No. 5837/D-1701/21-B/08, dated 20-6-2008.
1 Received the assent of the Governor on 31-3-2006.
 Page 139 of 139
APPENDIX II REGISTRATION OF MARRIAGE

1 Noti. No. G.P./2 of 2008/LNK-1/02006/302 (Part II)/Y, dated 1st January, 2008, published in the Gujarat Govt. Gazette,
Extra., Pt., IV-B, No. 1, dated 1-1-2008.
* Here fill in the No. of certified extracts/copy/copies.
* Strike out which is not applicable.
1 Noti. No. WLF-A(3) 1/97, dated 17th December, 2004, published in the Himachal Pradesh Gazette (Extra.), dated 28-1-
2005.
1 Vide G.S.R. 911, dated 10th March, 1966.
1 Subs. by Notification No. G.S.R. 314, dated 10th August, 1968, published in Mysore Gazette, Pt. IV-2-C(ii), dated 19th
September, 1968.
2 Subs. by G.S.R. 394, dated 18th November, 1968, published in Mysore Gazette, Pt. IV-2-C (ii), dated 28th November,
1968.
1 Subs. by G.S.R. 314, dated 10th August, 1968, published in Mysore Gazette, Pt. IV-2-C (i), dated 17th September,
1968.
1 Subs. by G.S.R. 314, dated 10th August, 1968, published in Mysore Gazette, Pt. IV-2-C (i), dated 19th September,
1968.
2 Subs. by G.S.R. 394, dated 18th November, 1968, published in Mysore Gazette, Pt. IV-2-C (i), dated 28th November,
1968.
1 Omitted by G.S.R. 394, dated 18th November, 1968.
2 Here fill in the number of certified extracts.
1 Published in the Kerala Gazette No. 43, dated 22nd October, 1957.
1 Vide G.O. (P) No. 1/2008/Law, dated 29th February, 2008, published in Kerala Gazette, Extra.., Vol. 53, No. 423, dated
29-2-2008.
2 AIR 2006 SC 1158 : (2006) 2 SCC 578.
1 Subs. by G.O. (P) No. 22/2009/Law, dated 16-9-2009.
1 Vide No. 17(E)-102-75-B-XXI, dated 15th October, 1984, published in the Madhya Pradesh Gazette, Extra., Pt. 4
(Goa), dated 11th January, 1985.
1 Vide Noti. No. 6-2-2005-XXI-B (2), dated 23rd January, 2008, published in M.P. Rajpatra (Asadharan), dated 23-1-2008
(w.e.f. 23-1-2008).
* May 12, 1977.
1 Ins. by Bombay Act 36 of 1955, sec. 2.
2 Ins. by Maharashtra Act 24 of 1977, sec. 3.
1 Here insert the amount received in accordance with the provisions of section 5(3) of the Act or rule 3A of these Rules,
as the case may be.
1 Vide No. VINOKA, 1099/CR-117/FW-III, dated the 15th May, 1999.
1 Noti. No. 4788-VI-J-12/59-J, dated 27th July, 1960, published in the Orissa Gazette, Extra., No. 603, dated 29-7-1960
(w.e.f. 29-7-1960).
1 Vide No. F. 19(51) Jud./55, dated 12th November, 1957.
2 Received the assent of the Governor on 10-9-2009 (w.e.f. 11-9-2009).
1 Vide S.R.O. No. A-222 of 1967, published in Pt. V, p. 200 of the Fort St. George Gazette, dated 15th March, 1967.
1 Subs. by Notification No. 1346/VII-AN—664/55, dated 10th April, 1980 (1980 LLT-V-205).
2 Subs. by Notification published in 1980 LLT-V-265.
1 Subs. by Notification published in 1980 LLT V-265.
1 Notification No. 806 Regn. dated 19th August, 1958 of Law (Judicial) Deptt. W.B. Government and published in
Calcutta Gazette, dated 2nd October, 1958.

End of Document
 APPENDIX III
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX III The Foreign Marriage rules, 1970 1

In exercise of the powers conferred by section 28 of the Foreign Marriage Act, 1969 (33 of 1969) and in
supersession of the Special Marriage (Diplomatic and Consular Officers) Rules, 1955, published with the
notification of the Government of India in the Ministry of External Affairs, No. S.R.O. 1979, dated the 29th July,
1955, the Central Government hereby makes the following rules, namely:—

1. Short title.—These rules may be called the Foreign Marriage Rules, 1970.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) ‘Act’ means the Foreign Marriage Act, 1969 (33 of 1969);
(b) ‘Form’ means a form appended to these rules;
(c) ‘Marriage Officer’ means a person appointed under section 3 of the Act to be a Marriage Officer;
(d) ‘Section’ means a section of the Act.

3. Particulars regarding name, etc., of Marriage Officer to be displayed in his office building.—Every
Marriage Officer shall arrange to have his name, designation and the working hours of his office to be written in
English, Hindi and the language of the country, place or area in which he functions as such, and displayed in a
conspicuous part of the building in which his office is situated.

4. Notice of intended marriage.—(1) When a marriage is intended to be solemnized under the Act by or before a
Marriage Officer, the parties to the intended marriage shall give notice thereof in writing in the form specified in the
First Schedule to the Act to such Officer either in person or by registered post.

(2) The notice shall be accompanied by a statement containing the following particulars:—
(i) Present addresses of the parents of the parties to the intended marriage.
(ii) Name or names of the country or countries in which the parties are ordinarily resident.
(iii) State or States in India to which the parties or, as the case may be, the Indian party, to the marriage
belong or belongs.

5. Payment of fee.—(1) Where the notice is delivered in person, the fee prescribed therefor in rule 15 shall be paid
in cash to the Marriage Officer.

(2) Where the notice is sent by registered post, the fee shall be remitted by money-order at the remitter’s expense
and the receipt issued to the remitter by the post office through which the remittance is made shall be attached to
the notice.

6. Procedure after notice.—(1) As soon as the notice is received by the Marriage Officer, a distinctive serial
number shall be a entered on it and such number and the date of receipt of the notice shall be attested by the
signature of the Marriage Officer.

(2) If the notice is in conformity with the requirements of the Act, it shall be entered in the Marriage Notice Book
which shall be bound volume, the pages of which are machine-numbered consecutively with a nominal index
attached.
 Page 2 of 5
APPENDIX III

(3) If the notice is not in conformity with the requirements of the Act, it shall be got rectified by the parties if they are
present, or returned to them by post for rectification and retransmission within a date to be fixed for this purpose, if
they are not present.

(4) The Marriage Officer shall have every item of rectification attested by both the parties.

7. Publication of notice.—The Marriage Officer shall cause the notice to be published,—

(a) by affixing a true copy thereof under his seal and signature to some conspicuous place in his office;
(b) by forwarding true copies thereof under his seal and signature to the parents of the parties to the marriage;
and
(c) by publishing it in a newspaper having circulation,—
(i) in the State or States in India to which the parties, or, as the case may be, the Indian party, to the
marriage belong or belongs; and
(ii) in the country or countries in which the parties are ordinarily resident.

8. Procedure for inquiry into objection.—(1) If any objection to the solemnisation of the intended marriage
(together with the fee prescribed therefor in rule 15 is received by the Marriage Officer, he shall record the nature of
the objection in his Marriage Notice Book and fix the date and time for inquiry into the objection and cause notice
thereof to be given in Form I to the person who has made the objection and also the parties to the intended
marriage.

(2) On the date so fixed or on any other date to which the inquiry may be adjourned, the Marriage Officer shall
make an inquiry into the objection and record in his own hand in the manner prescribed in the Code of Civil
Procedure, 1908 (5 of 1908), the evidence given.

9. Time and place of solemnisation.—The intended marriage may be solemnized at any time during office hours
of the Marriage Officer or at any other time convenient to him—
(a) at the official house of residence of the Marriage Officer, or
(b) at the office in which the business of the Marriage Officer is transacted, or
(c) at such other place within a reasonable distance from such official house or office as the Marriage Officer
may in his discretion approve:

Provided that additional fees as specified in rule 15 shall be payable for the solemnisation of any marriage at a
place referred to in clause (c).

10. Manner of registration of marriages.—Registration of a marriage under section 17 shall be effected by the
Marriage Officer by entering a certificate of the marriage in Form II in the Marriage Certificate Book.

11. Appeals to the Central Government.—An appeal to the Central Government under sub-section (3) of section
11 or sub-section (4) of section 17 shall be in the form of a memorandum which shall be accompanied by a certified
copy of:
(i) the notice of the intended marriage or, as the case may be, of the application for registration of the
marriage;
(ii) the statement of the reasons for which the Marriage Officer refused to solemnised or, as the case may be,
register the marriage.

12. Language for purposes of section 24.—The language for purposes of sub-clause (ii) of clause (b) of sub-
section (1) of section 24 shall be English, Hindi or any other language approved by the Marriage Officer.

13. Transmission of copies of entries in marriage records.—The Marriage Officer shall send to the Secretary to
the Government of India, Ministry of External Affairs, New Delhi, three true copies certified in Form III of all entries
or corrections made by him in the Marriage Certificate Book at intervals of three months on, or as early as possible
after, the Ist day of January, April, July and October in each year and one such copy shall be transmitted by the
 Page 3 of 5
APPENDIX III

said Secretary to the Registrar-General or to each of the Registrars-General of Births, Deaths and Marriages of the
State or States in India to which the parties to the marriage belong.

14. Form of Marriage Certificate Book.—(1) The Marriage Certificate Book shall be a bound volume, the pages of
which are machine-numbered consecutively with a nominal index attached. Every marriage certificate entered
therein during each calendar year shall be consecutively numbered and every authenticated copy of a certificate
issued to the parties shall bear the number and date, month and year in which the certificate was entered.

(2) For the removal of doubts it is hereby provided that the Marriage Certificate Book maintained under the Special
Marriage (Diplomatic and Consular Officer) Rules, 1955, may be continued to be used with necessary adaptations
as the Marriage Certificate Book for the purposes of these rules and the Act.

15. Scale of fees.—(1) The following fees shall be levied by Marriage Officers:—
(i) For every notice of intended marriage, Rs. 39.50 (to be paid by the parties to the marriage).
(ii) For recording an objection, Rs. 15.75 (to be paid by the person making the objection).
(iii) For every inquiry into an objection, Rs. 78.75 (to be paid by the person making the objection).
(iv) For every notice to the parties to an intended marriage of the date and time fixed for inquiry into an
objection, Rs. 3.25 (to be paid by the person making the objection).
(v) For solemnising a marriage, Rs. 78.75 (to be paid by the parties to the marriage).
(vi) For solemnising a marriage at a place referred to in rule 9(c) (to be paid by the parties to the marriage), Rs.
31.50 in addition to the fee of Rs. 78.75 referred to in Item (v) above.
(vii) For registration by Consular Officer of a marriage solemnised in accordance with the local laws (in addition
to the fee for attendance), Rs. 78.75 (to be paid by the party desiring registration).
(viii) For receiving notice of a cave at Rs. 78.75.
(ix) For certificate by Marriage Officer of notice having been given and posted up, Rs. 15.75.
(x) For a certified copy of reasons recorded under section 11 or section 17 for refusal to solemnise or, as the
case may be, for refusal to register, a marriage, Rs. 8.00 (to be paid by the applicant).
(xi) For certified copy of an entry (to be paid by the applicant),—
(a) in the Marriage Notice Book, Rs. 8.00, or
(b) in the Marriage Certificate Book, Rs. 8.00.
(xii) For certification of a document referred to in sub-section (1) of section 24, Rs. 3.25.
(xiii) For making a search (to be paid by the applicant),—
(a) if the entry is of the current year, Rs. 8.00, or
(b) if the entry relates to any previous year or years, Rs. 15.75.

(2) A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and these
rules. The receipt books shall be bound volumes of one hundred leaves each with foils and counterfoils which shall
be machine-numbered consecutively. All moneys received by the Marriage Officer shall be credited to such head of
account as the Central Government may specify in this behalf.

FORM I

[See rule 8(1)]

NOTICE

Before the Marriage Officer ........................Place

In the matter of the Foreign Marriage Act, 1969 (33 of 1969)

 Page 4 of 5
APPENDIX III

and

In the matter of the intended marriage between

(AB and CD) (Give names and addresses)

EF Person making the objection.

To

...................................................

Whereas notice of an intended marriage between AB and CD was received by the Marriage Officer
......................................... ;

And whereas EF has preferred certain objections (set out overleaf) to the solemnisation of the marriage;

And whereas the Marriage Officer will hold an inquiry into the matter of the said objections on
the...........................day of........................, 20............... at this office;

You are hereby required to be present at.................................a.m./p.m. on the said day, together with all documents
on which you rely and witnesses whom you may desire to be examined on your behalf.

Take notice that in default of your appearance at the time specified above on the aforesaid day the inquiry will be
made, and the matter aforesaid decided, in your absence.

Given under my hand and seal.

Station:

Date:

(Set out the objection on Signature

the reverse of this notice). Marriage Officer

Sea

FORM II

[See rule 10]

CERTIFICATE OF REGISTRATION OF MARRIAGE

I,..............., hereby certify that AB and CD* informed me in writing that he/she desires his/her marriage*to be
registered under section 17 of the ......................... they desire their marriage. Foreign Marriage Act, 1969 (33 of
1969) and that each of the parties to the said marriage, in my presence and in the presence of three witnesses who
have signed hereunder, have declared that a ceremony of marriage has been performed between them and that
they have been living together as husband and wife since the time of marriage, and the said marriage has this day
of........................., 20........... been registered under this Act.

...............................

Marriage Officer for................

...............(Husband).

...............(Wife)
 Page 5 of 5
APPENDIX III

...............

............... } Three witnesses.

...............

Dated the..........................day of..........................,, 20...............

*Strike out whatever is inapplicable.

FORM III

[See rule 13]

FORM OF CERTIFICATE

Certified that the above entries from the Marriage Certificate Book in this office bearing serial number
.........................................are true copies of all the entries and corrections in the Marriage Certificate Book kept by
me during the three months ending.........................................

................

Marriage Officer

1 Vide Notification No. G.S.R. 1274, dated 19th August 1970, published in Gazette of India, Pt. II, Sec. 3(i), dated 5th
September, 1970, pp. 3101-3105.
* Strike out whatever is inapplicable.

End of Document
 APPENDIX IV
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX IV THE DOWRY PROHIBITION (MAINTENANCE OF LISTS

OF PRESENTS TO THE BRIDE AND BRIDEGROOM) RULES, 1985 1
In exercise of the powers conferred by section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central
Government hereby make the following rules, namely:—

1. Short title and commencement.— (1) These rules may be called the Dowry Prohibition (Maintenance of Lists of
Presents to the Bride and Bridegroom) Rules, 1985.

(2) They shall come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of
the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984).

2. Rules in accordance with which lists of presents are to be maintained.—(1) The lists of presents which are
given at the time of marriage to the bride shall be maintained by the bride.

(2) The lists of presents which are given at the time of marriage to the bridegroom shall be maintained by the
bridegroom.

(3) Every list of presents referred to in sub-rule (1) or sub-rule (2),—

(a) shall be prepared at the time of the marriage or as soon as possible after the marriage;
(b) shall be in writing;
(c) shall contain,—
(i) a brief description of each present;
(ii) the approximate value of the present;
(iii) the name of the person who has given the present; and
(iv) where the person giving the present is related to the bride or bridegroom, a description of such
relationship;
(d) shall be signed by both the bride and the bridegroom.

Explanation 1.—Where the bride is unable to sign, she may affix her thumb-impression in lieu of her signature after
having the list read out to her and obtaining the signature, on the list, of the person who has so read out the
particulars contained in the list.

Explanation 2.—Where the bridegroom is unable to sign, he may affix his thumb-impression in lieu of his signature
after having the list read out to him and obtaining the signature on the list, of the person who has so read out the
particulars contained in the list.

(4) The bride or the bridegroom may, if she or he so desires, obtain on either or both of the lists referred to in sub-
rule (1) or sub-rule (2) the signature or signatures of any relations of the bride or the bridegroom or of any other
person or persons present at the time of the marriage.
 Page 2 of 2
APPENDIX IV

1 Vide No. G.S.R. 664(E), published in Gazette of India, Pt. II, Sec. 3(i), dated 19th August, 1985.

End of Document
 APPENDIX V
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX V THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) RULES, 1986 1
In exercise of the powers conferred by section 6 of the Muslim Women (Protection of Rights on Divorce) Act, 1986
(25 of 1986), the Central Government hereby makes the following rules for carrying out the purposes of the Act,
namely:—

1. Short title and commencement.—(1) These rules may be called the Muslim Women (Protection of Rights on
Divorce) Rules, 1986.

(2) They shall come into force at once.

2.Definitions.—In these rules, unless the context otherwise requires,—

(a) ‘Act’ means the Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986);
(b) ‘Code’ means the Code of Criminal Procedure, 1973 (2 of 1974); and
(c) ‘form’ means form annexed to these rules.

3.Service of summons.—(1) Every summons issued by a Magistrate on an application made under the Act, shall
be in writing, in duplicate, signed by the Magistrate or by such other officer as he may, from time to time, direct, and
shall bear the seal of the Court.

(2) Every such summons shall be accompanied by a true copy of the application.

(3) Every summons issued under sub-rule (1) shall specify the date of the first hearing of the application which shall
not be later than seven days from the date on which the summons is issued.

(4) Every summons shall be served by a police officer or by an officer of the Court of issuing it.

(5) The summons shall, if practicable, be served personally on the respondent, by delivering or tendering to him one
of the duplicates of the summons.

(6) Every respondent on whom the summons is so served shall, if so required by the serving officer, sign a receipt
therefor on the back of other duplicate.

(7) Where the respondent cannot, by the exercise of due diligence, be found, the summons may be served by
leaving one of the duplicates for him with some adult male member of his family residing with him and the person
with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of
the other duplicate.

(8) If the service cannot, by the exercise of due diligence, be effected as provided in sub-rule (6), or sub-rule (7), the
serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or
homestead in which the respondent ordinarily resides; and thereupon the court, after making such inquiries as it
thinks fit, may either declare that the summons has been duly served of order fresh summons in such a manner as
it considers proper.

(9) When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it
 Page 2 of 3
APPENDIX V

shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction, the respondent
resides, or is, to be there served.

(10) When a summons issued by a court is served outside its local jurisdiction and in any case when an officer who
served the summons is not present at the hearing of the case, an affidavit purporting to be made before a
Magistrate that such summons has been served and a duplicate of summons purporting to be endorsed [in the
manner provided by sub-rule (6) or sub-rule (7)] by the person to whom it was delivered or tendered or with whom it
was left shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and
until the contrary is provided.

(11) The affidavit mentioned in sub-rule (10) may be attached to the duplicates of the summons and returned to the
court.

4.Evidence.—All evidence in the proceedings under the Act shall be taken in the presence of the respondent
against whom an order for the payment of provision and maintenance, Mahr or dower or the delivery of property is
proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall
be recorded in the manner specified for summary trials under the Code:

Provided that if the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to
attend the court, Magistrate may proceed to hear and determine the case ex parte and any order so made may be
set aside for good cause shown on application made within seven days from the date thereof subject to such terms
as to payment of cost to the opposite party as the Magistrate may think just and proper.

5.Power to postpone or adjourn proceedings.—In every application under the Act, the proceedings shall be held
as expeditiously as possible and in particular, when the examination of witness has once begun, the same shall be
continued from day to day until all the witnesses in attendance have been examined unless the Court finds
adjournment of the same beyond the following day to be necessary for reasons to be recorded.

6.Costs.—The court in dealing with the applications under the Act shall have power to make such order as to cost
as may be just.

7.Affidavit under section 5.—An affidavit filed under section 5 of the Act shall be in Form A.

8.Declaration under section 5.—A declaration in writing filed under section 5 shall be in Form B.

FORM A

(See rule 7)

FORM OF AFFIDAVIT

I/We..................................son/wife of.....................................aged ..............................years, resident of

..................................................... and.................son/wife of .............................. aged....................... years, resident
of...................................hereby state on oath as follows:

1. That I/We have informed myself/ourselves of the provisions of section 5 of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and of the provisions of sections 125 to 128 of the Code of Criminal
Procedure, 1973.
2. That I/We.........................................desire to be governed by the provisions of sections 125 to 128 of the
Code of Criminal Procedure, 1973 in preference to the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
3. That the contents of the above affidavit are true.

Deponent/Deponents

Signed and verified at.................................this the.................... day of.................... 20..........

Deponent/Deponents
 Page 3 of 3
APPENDIX V

FORM B

(See rule 8)

FORM OF DECLARATION

I/We.........................................son/wife of.........................................aged.........................................years, resident

of..................and..................son/wife of..................aged..................years, resident of..................hereby declared as
follows:

1. That I/We have informed myself/ourselves of the provisions of section 5 of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 and of the provisions of sections 125 to 128 of the Code of Criminal
Procedure, 1973.
2. That I/We.........................................desire to be governed by the provisions of sections 125 to 128 of the
Code of Criminal Procedure, 1973, in preference to the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
3. That the contents of the above declaration are true.

Deponent/Deponents

Signed and verified at........................this the................................ day of.................. 20...............

Deponent/Deponents

1 Ministry of Law and Justice (Legislative Department) Notification No. G.S.R. 776(E), dated the 19th May, 1986,
published in the Gazette of India, Extra., Pt. II, Sec. 3(i), dated 19-5-1986, pp. 3-4.

End of Document
 APPENDIX VI
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX VI THE SPECIAL MARRIAGE (DIPLOMATIC AND

CONSULAR OFFICERS) RULES, 1955 1
[29th July, 1955]

In exercise of the powers conferred by section 50 of the Special Marriage Act, 1954 (XLIII of 1954) the Central
Government hereby makes the following rules, namely:—

1. Short title.—These rules may be called the Special Marriage (Diplomatic and Consular Officers) Rules, 1955.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Act” means the Special Marriage Act, 1954 (XLIII of 1954);
(b) “Form” means a form appended to these rules;
(c) “Marriage Officer” means any diplomatic or consular officer who for the time being has been appointed as a
marriage officer by the Central Government for the purpose of the Act under clause (b) of sub-section (2) of
section 3;
(d) “Section” means a section of the Act.

3. Particulars regarding name etc., of Marriage Officer to be displayed in his office building.—Every Marriage
Officer shall arrange to have his name, designation and the working hours of his office to be written in English, Hindi
and the language of the country, place or area in which he functions as such, and displayed in a conspicuous part
of the building in which his office is situated.

4. Notice of intended marriage.—When a marriage is intended to be solemnized under this Act by a Marriage
Officer, the parties to the intended marriage shall give notice thereof in writing in the form specified in the Second
Schedule to the Act to such officer either in person or by registered post.

5. Payment of fee.—(1) Where the notice is delivered in person, the fee prescribed there in rule 13 shall be paid in
cash to the Marriage Officer.

(2) Where the notice is sent by registered post, the fee shall be remitted by money-order at the remitter’s expense
and the receipt issued to the remitter by the post-office through which the remittance is made, shall be attached to
the notice.

6. Procedure on receipt of notice.—(1) As soon as the notice is received by the Marriage Officer a distinctive
serial number shall be entered on it and such number and the date of receipt of the notice shall be attested by the
signature of the Marriage Officer.

(2) If the notice is in conformity with the requirements of the Act it shall be entered in the Marriage Notice Book
which shall be a bound volume, the pages of which are machine-numbered consecutively with a nominal index
attached.

(3) If the notice is not in conformity with the requirements of the Act, it shall be got rectified by the parties if they are
present, or returned to them by post for rectification and retransmission within a date to be fixed for this purpose, if
they are not present.
 Page 2 of 4
APPENDIX VI

(4) The Marriage Officer shall have every item of rectification attested by both the parties.

7. Publication of notice.—The Marriage Officer shall cause the notice to be published by affixing a true copy
thereof under his seal and signature in some conspicuous place in his office.

8. Objection to be transmitted by Marriage Officer in certain cases.—If a copy of any notice of an intended
marriage is received in pursuance of sub-section (3) of section 6, by a Marriage Officer, whether appointed under
clause (b) of sub-section (2) of section 3 or otherwise, and if such officer receives any objection to the intended
marriage, and the fee prescribed therefor in rule 13, he shall forthwith transmit such objection to the Marriage
Officer from whom the copy was received and also inform the person who has made the objection to prefer it to the
latter officer. The latter officer shall record in writing the objection in the Marriage Notice Book.

9. Procedure for inquiry into objection.—(1) If any objection to the solemnization of the intended marriage
together with the fee prescribed therefor in rule 13 is received and recorded by the Marriage Officer he shall fix the
date and time for inquiry into the objection and cause notice thereof to be given in Form I to the person who has
made the objection and also the parties to the intended marriage.

(2) On the date so fixed or on any other date to which the inquiry may be adjourned, the Marriage Officer shall
make an inquiry into the objection and record in his own hand in the manner prescribed in the Code of Civil
Procedure, 1908 (Act V of 1908), the evidence given.

(3) After the completion of the inquiry, the Marriage Officer shall prepare a statement containing his views on the
objection and the reasons in support of his views and transmit such statement together with the record to the
Central Government in the Ministry of External Affairs.

(4) The Central Government shall after making such further inquiry into the matter and after obtaining such advice
as it thinks fit, give its decision thereon in writing to the Marriage Officer concerned who shall act in conformity with
such decision.

10. Place of solemnization.—The marriage shall be solemnized at the office of the Marriage Officer:

Provided that before doing so, the Marriage Officer shall satisfy himself that the provision of any local law for the
time being in force relating to marriage have been complied with.

11. Transmission of copies of entries in marriage records.—(1) The Marriage Officer shall send to the
Secretary to the Government of India, Ministry of External Affairs, New Delhi, three true copies certified in Form II of
all entries made by him in the Marriage Certificate Book at intervals of three months on or as nearly as possible
after the 1st day of January, April, July and October in each year and one such copy shall be transmitted by the
said Secretary to the Registrar-General of Births, Deaths and Marriages of the State or of each of the States in
which parties are domiciled or were permanently residing.

(2) When no entries have been made in the Marriage Certificate Book during the three months preceding the day
aforesaid, a Certificate to this effect in Form III shall be sent to the said Secretary.

12. Form of Marriage Certificate Book.—The Marriage Certificate Book shall be a bound volume, the pages of
which are machine-numbered consecutively with a nominal index attached. Every marriage certificate entered
therein during each calendar year shall be consecutively numbered and every authenticated copy of a certificate
issued to the parties shall bear this number and date, month and year in which the certificate was entered.

13. Scales of fees.—(1) The following fees shall be levied by Marriage Officers:
(i) For every notice of intended marriage, Rs. 10 (to be paid by the parties to the marriage).
(ii) For recording an objection, Rs. 10 (to be paid by the person making the objection).
(iii) For every inquiry into an objection, Rs. 50 (to be paid by the person making the objection).
(iv) For every notice to the parties to an intended marriage, of the date and time fixed for inquiry into an
objection, Rs. 2 (to be paid by the person making the objection).
(v) For solemnizing a marriage, Rs. 50 (to be paid by the parties to the marriage).
 Page 3 of 4
APPENDIX VI

(vi) For a certified copy of an entry to be paid by the applicant,—

(a) in the Marriage Notice Book, Rs. 5 or
(b) in the Marriage Certificate Book, Rs. 5.
(vii) For making a search (to be paid by the applicant),—
(a) if the entry is of the current year, Rs. 5,
(b) if the entry relates to any previous year or years, Rs. 10.

(2) A receipt duly signed by the Marriage Officer shall be issued for all fees received by him under the Act and these
rules. The receipt books shall be bound volumes of one hundred leaves each with foils and counter-foils which shall
be machine-numbered consecutively. All moneys received by the Marriage Officer shall be credited to such head of
account as the Central Government may specify in this behalf.

FORM I

[See rule 9(i)]

NOTICE

Before the Marriage Officer ........................Place

In the matter of the Special Marriage Act, 1954 (XLIII of 1954) ......................................

and

In the matter of the intended marriage between.

A.B. } —(Give names and addresses)

and

C.D.

E.F. Person making the objection

To

..............................................

..............................................

Whereas notice of an intended marriage between AB and CD was received by the Marriage Officer on
........................

And whereas EF has preferred certain objections (set out overleaf) to the solemnization of marriage;

And whereas the Marriage Officer will hold an inquiry into the matter of the said objections on ........................ day of
........................ 20 ........................ at his office;

You are hereby required to be present at ........................a.m./p.m. on the said day together with all documents on
which you rely and witnesses whom you may desire to be examined on your behalf.

Take notice that in default of your appearance at the time specified above on the aforesaid day the inquiry will be
made, and the matter aforesaid decided, in your absence.

Given under my hand and seal Station: (Signature)

 Page 4 of 4
APPENDIX VI

(Set out the objection on the Marriage Officer

reverse of this notice) Seal

FORM II

[See rule (I)]

FORM OF CERTIFICATE

Certified that the above entries from the Marriage Certificate Book in this Office bearing serial number
........................ are true copies of all the entries in the Marriage Certificate Book kept by me for the three months
ending........................

Station........................ (Signature)

Date........................ Marriage Officer

FORM III

[See rule 11(2)]

FORM OF CERTIFICATE

Certified that no entries have been made in the Marriage Certificate Book in this office for the three months
ending..........................

Station........................ (Signature)

Date........................ Marriage Officer

1 Vide S.R.O. 1679, dated 29th July, 1955.

End of Document
 APPENDIX VII RELATED ACTS
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX VII RELATED ACTS

1 THE RIGHT TO INFORMATION ACT, 2005

(Relevant Provisions)

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “appropriate Government” means in relation to a public authority which is established, constituted, owned,
controlled or substantially financed by funds provided directly or indirectly—
(i) by the Central Government or the Union territory administration, the Central Government;
(ii) by the State Government, the State Government;
(b) “Central Information Commission” means the Central Information Commission constituted under sub-
section (1) of section 12;
(c) “Central Public Information Officer” means the Central Public Information Officer designated under sub-
section (1) and includes a Central Assistant Public Information Officer designated as such under sub-
section (2) of section 5;
(d) “Chief Information Commissioner” and “Information Commissioner” mean the Chief Information
Commissioner and Information Commissioner appointed under sub-section (3) of section 12;
(e) “competent authority” means—
(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union
territory having such Assembly and the Chairman in the case of the Council of States of a Legislative
Council of States;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of a High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities established or
constituted by or under the Constitution;
(v) the administrator appointed under article 239 of the Constitution;
(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions,
advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any private body which can be accessed by
a public authority under any other law for the time being in force;
(g) “prescribed” means prescribed by rules made under this Act by the appropriate Government or the
competent authority, as the case may be;
(h) “public authority” means any authority or body or institution of self-government established or
constituted,—
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
 Page 2 of 18
APPENDIX VII RELATED ACTS

(d) by notification issued or order made by the appropriate Government, and includes any—
(e) body owned, controlled or substantially financed;
(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the
appropriate Government;
(i) “record” includes—
(i) any document, manuscript and file;
(ii) any microfilm, microfiche and facsimile copy of a document;
(iii) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(iv) any other material produced by a computer or any other device;
(j) “right to information” means the right to information accessible under this Act which is held by or under the
control of any public authority and includes the right to—
(i) inspection of work, documents, records;
(ii) taking notes, extracts, or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic
mode or through printouts where such information is stored in a computer or in any other device;
(k) “State Information Commission” means the State Information Commission constituted under sub-section
(1) of section 15;
(l) “State Chief Information Commissioner” and “State Information Commissioner” mean the State Chief
Information Commissioner and the State Information Commissioner appointed under sub-section (3) of
section 15;
(m) “State Public Information Officer” means the State Public Information Officer designated under sub-section
(1) and includes a State Assistant Public Information Officer designated as such under sub-section (2) of
section 5;
(n) “third party” means a person other than the citizen making a request for information and includes a public
authority.

3. Right to information.—Subject to the provisions of this Act, all citizens shall have the right to information.

4. Obligations of public authorities.—(1) Every public authority shall—

(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to
information under this Act and ensure that all records that are appropriate to be computerised are, within a
reasonable time and subject to availability of resources, computerised and connected through a network all
over the country on different systems so that access to such records is facilitated;
(b) publish within one hundred and twenty days from the enactment of this Act,—
(i) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and
accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its
employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its control;
(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members
of the public in relation to the formulation of its policy or implementation thereof;
 Page 3 of 18
APPENDIX VII RELATED ACTS

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons
constituted as its part or for the purpose of its advice, and as to whether meetings of those boards,
councils, committees and other bodies are open to the public, or the minutes of such meetings are
accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees, including the system of
compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures
and reports on disbursements made;
(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of
beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of
a library or reading room, if maintained for public use;
(xvi) the names, designations and other particulars of the Public Information Officers;
(xvii) such other information as may be prescribed, and thereafter update these publications every year;
(c) publish all relevant facts while formulating important policies or announcing the decisions which affect
public;
(d) provide reasons for its administrative or quasi judicial decisions to affected persons.

(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of
clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through
various means of communications, including internet, so that the public have minimum resort to the use of this Act
to obtain information.

(3) For the purpose of sub-section (1), every information shall be disseminated widely and in such form and manner
which is easily accessible to the public.

(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most
effective method of communication in that local area and the information should be easily accessible, to the extent
possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the
case may be, available free or at such cost of the medium or the print cost price as may be prescribed.

Explanation.—For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated
the information to the public through notice boards, newspapers, public announcements, media broadcasts, the
internet or any other means, including inspection of offices of any public authority.

6. Request for obtaining information.—(1) A person, who desires to obtain any information under this Act, shall
make a request in writing or through electronic means in English or Hindi in the official language of the area in
which the application is being made, accompanying such fee as may be prescribed, to—
(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the
concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case
may be,

specifying the particulars of the information sought by him or her:

Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public
Information Officer, as the case may be, shall render all reasonable assistance to the person making the request
orally to reduce the same in writing.
 Page 4 of 18
APPENDIX VII RELATED ACTS

(2) An applicant making request for information shall not be required to give any reason for requesting the
information or any other personal details except those that may be necessary for contacting him.

(3) Where an application is made to a public authority requesting for an information,—

(i) which is held by another public authority; or
(ii) the subject-matter of which is more closely connected with the functions of another public authority,

the public authority, to which such application is made, shall transfer the application or such part of it as may be
appropriate to that other public authority and inform the applicant immediately about such transfer:

Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in
no case later than five days from the date of receipt of the application.

7. Disposal of request.—(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3)
of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be on
receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the
receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the
request for any of the reasons specified in sections 8 and 9:

Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided
within forty-eight hours of the receipt of the request.

(2) If the Central Public Information Officer or State Public Information Officer, as the case may be fails to give
decision on the request for information within the period specified under sub-section (1), the Central Public
Information Officer or State Public Information Officer, as the case may be shall be deemed to have refused the
request.

(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of
providing the information, the Central Public Information Officer or State Public Information Officer, as the case may
be shall send an intimation to the person making the request, giving—
(a) the details of further fees representing the cost of providing the information as determined by him, together
with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1),
requesting him to deposit that fees, and the period intervening between the despatch of the said intimation
and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in
that sub-section;
(b) information concerning his or her right with respect to review the decision as to the amount of fees charged
or the form of access provided, including the particulars of the appellate authority, time limit, process and
any other forms.

(4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom
access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information
Officer, as the case may be shall provide assistance to enable access to the information, including providing such
assistance as may be appropriate for the inspection.

(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall,
subject to the provisions of sub-section (6), pay such fee as may be prescribed:

Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be
reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined
by the appropriate Government.

(6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be
provided the information free of charge where a public authority fails to comply with the time limits specified in sub-
section (1).

(7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public
 Page 5 of 18
APPENDIX VII RELATED ACTS

Information Officer, as the case may be shall take into consideration the representation made by a third party under
section 11.

(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public
Information Officer, as the case may be shall communicate to the person making the request,—
(i) the reasons for such rejection;
(ii) the period within which an appeal against such rejection may be preferred; and
(iii) the particulars of the appellate authority.

(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately
divert the resources of the public authority or would be detrimental to the safety or preservation of the record in
question.

8. Exemption from disclosure of information.—(1) Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an
offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which
would harm the competitive position of a third party, unless the competent authority is satisfied that larger
public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the
source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis
of which the decisions were taken shall be made public after the decision has been taken, and the
matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not
be disclosed;
(j) information which relates to personal information the disclosure of which has not relationship to any public
activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the
Central Public Information Officer or the State Public Information Officer or the appellate authority, as the
case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied
to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure
outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence,
 Page 6 of 18
APPENDIX VII RELATED ACTS

event or matter which has taken place, occurred or happened twenty years before the date on which any request is
made under section 6 shall be provided to any person making a request under that section:

Provided that where any question arises as to the date from which the said period of twenty years has to be
computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this
Act.

9. Grounds for rejection to access in certain cases.—Without prejudice to the provisions of section 8, a Central
Public Information Officer or State Public Information Officer, as the case may be may reject a request for
information where such a request for providing access would involve an infringement of copyright subsisting in a
person other than the State.

19. Appeal.—(1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause
(a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or the State
Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the
receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information
Officer or the State Public Information Officer, as the case may be, in each public authority:

Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied
that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public
Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the
concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which
the decision should have been made or was actually received, with the Central Information Commission or the
State Information Commission:

Provided that the Central Information Commission or the State Information Commission, as the case may be, may
admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be,
against which an appeal is preferred relates to information of a third party, the Central Information Commission or
State Information Commission, as the case may be shall give a reasonable opportunity of being heard to that third
party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central
Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the
appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the
case may be, for reasons to be recorded in writing.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall
be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has
the power to,—
(a) require the public authority to take any such steps as may be necessary to secure compliance with the
provisions of this Act, including—
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may
be;
(iii) by publishing certain information or categories of information;
 Page 7 of 18
APPENDIX VII RELATED ACTS

(iv) by making necessary changes to its practices in relation to the maintenance, management and
destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;
(b) require the public authority to compensate the complainant for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of
its decision, including any right of appeal, to the complainant and the public authority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the
appeal in accordance with such procedure as may be prescribed.

20. Penalties.—(1) Where the Central Information Commission or the State Information Commission, as the case
may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer
or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive
an application for information or has not furnished information within the time specified under sub-section (1) of
section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading
information or destroyed information which was the subject of the request or obstructed in any manner in furnishing
the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or
information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand
rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be,
shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public
Information Officer or the State Public Information Officer, as the case may be.

(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the
time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State
Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to
receive an application for information or has not furnished information within the time specified under sub-section
(1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or
misleading information or destroyed information which was the subject of the request or obstructed in any manner
in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer
or the State Public Information Officer, as the case may be, under the service rules applicable to him.

2 THE HINDU SUCCESSION ACT, 1956

(Relevant Provisions)

6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a
coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a
coparcener:
 Page 8 of 18
APPENDIX VII RELATED ACTS

Provided that nothing contained in this sub-section shall affect or invalidated any disposition or alienation including
any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any
other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in
the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be
deemed to have been divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been
alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-
deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child
would have got had he or she been alive at the time of the partition, shall be allotted to the child of such
pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement* of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right
to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather
or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment)
Act, 2005, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall
be enforceable under the rule of pious obligation in the same manner and to the same extent as it would
have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.—For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the
commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of
December, 2004.

Explanation.—For the purposes of this section “partition” means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

THE SCHEDULE

(See section 8)

HEIRS IN CLASS I AND CLASS II

Class I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased
daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-
deceased son; daughter of a predeceased son of a pre-deceased son; widow of a pre-deceased son of a pre-
 Page 9 of 18
APPENDIX VII RELATED ACTS

deceased son; son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter
of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-
deceased daughter of a pre-deceased son.

Class II

I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s
daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.

Explanation.—In this Schedule, references to a brother or sister do not include references to a brother or sister by
uterine blood.

3 THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

(43 of 2005)

[13th September, 2005]

An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the Protection of Women from Domestic
Violence Act, 2005.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette,
appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of domestic violence by the respondent;
(b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child;
(c) “compensation order” means an order granted in terms of section 22;
(d) “custody order” means an order granted in terms of section 21;
(e) “domestic incident report” means a report made in the prescribed form on receipt of a complaint of
domestic violence from an aggrieved person;
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APPENDIX VII RELATED ACTS

(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time,
lived together in a shared household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or are family members living together as a joint family;
(g) “domestic violence” has the same meaning as assigned to it in section 3;
(h) “dowry” shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28
of 1961);
(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan
Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area
where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic
violence is alleged to have taken place;
(j) “medical facility” means such facility as may be notified by the State Government to be a medical facility for
the purposes of this Act;
(k) “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the
aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to
meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic
violence;
(l) “notification” means a notification published in the Official Gazette and the expression “notified” shall be
construed accordingly;
(m) “prescribed” means prescribed by rules made under this Act;
(n) “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section
8;
(o) “protection order” means an order made in terms of section 18;
(p) “residence order” means an order granted in terms of sub-section (1) of section 19;
(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also
file a complaint against a relative of the husband or the male partner.
(r) “service provider” means an entity registered under sub-section (1) of section 10;
(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a
domestic relationship either singly or along with the respondent and includes such a household whether
owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by
either of them in respect of which either the aggrieved person or the respondent or both jointly or singly
have any right, title, interest or equity and includes such a household which may belong to the joint family
of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has
any right, title or interest in the shared household.
(t) “shelter home” means any shelter home as may be notified by the State Government to be a shelter home
for the purposes of this Act.

CHAPTER II

DOMESTIC VIOLENCE

3. Definition of domestic violence.—For the purposes of this Act, any act, omission or commission or conduct of
the respondent shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the
aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and
emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person
related to her to meet any unlawful demand for any dowry or other property or valuable security; or
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APPENDIX VII RELATED ACTS

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned
in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.—For the purposes of this section,—

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or
danger to life, limb, or health or impair the health or development of the aggrieved person and includes
assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise
violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a
child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled
under any law or custom whether payable under an order of a court or otherwise or which the
aggrieved person requires out of necessity including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the
aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables,
shares, securities, bonds and the like or other property in which the aggrieved person has an interest
or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the
aggrieved person or her children or her stridhan or any other property jointly or separately held by the
aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is
entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the
respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall
be taken into consideration.

CHAPTER III

POWERS AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS, ETC.

4. Information to Protection Officer and exclusion of liability of informant.—(1) Any person who has reason to
believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information
about it to the concerned Protection Officer.

(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose
of sub-section (1).

5. Duties of police officers, service providers and Magistrate.—A police officer, Protection Officer, service
provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an
incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the
aggrieved person—
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary
relief, a custody order, a residence order, a compensation order or more than one such order under this
Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
 Page 12 of 18
APPENDIX VII RELATED ACTS

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever
relevant:

Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to
proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.

6. Duties of shelter homes.—If an aggrieved person or on her behalf a Protection Officer or a service provider
requests the person in charge of a shelter home to provide shelter to her, such person-in-charge of the shelter
home shall provide shelter to the aggrieved person in the shelter home.

7. Duties of medical facilities.—If an aggrieved person or, on her behalf a Protection Officer or a service provider
requests the person-in-charge of a medical facility to provide any medical aid to her, such person in charge of the
medical facility shall provide medical aid to the aggrieved person in the medical facility.

8. Appointment of Protection Officers.—(1) The State Government shall, by notification, appoint such number of
Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which
a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.

(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience
as may be prescribed.

(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be
such as may be prescribed.

9. Duties and functions of Protection Officers.—(1) It shall be the duty of the Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be
prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the Police
Officer-in-charge of the police station within the local limits of whose jurisdiction domestic violence is
alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the
aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987
(39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical
facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report
of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having
jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of
the medical report to the police station and the Magistrate having jurisdiction in the area where the
domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance
with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.

(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties
imposed on him by the Magistrate and the Government by, or under, this Act.

10. Service providers.—(1) Subject to such rules as may be made in this behalf, any voluntary association
registered under the Societies Registration Act, 1860(21 of 1860) or a company registered under the Companies
Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and
interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall
register itself with the State Government as a service provider for the purposes of this Act.
 Page 13 of 18
APPENDIX VII RELATED ACTS

(2) A service provider registered under sub-section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a
copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic
violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection
Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a
report of the lodging of the aggrieved person in the shelter home to the police station within the local limits
of which the domestic violence took place.

(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the
service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in
good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards
the prevention of the commission of domestic violence.

11. Duties of Government.—The Central Government and every State Government, shall take all measures to
ensure that—
(a) the provisions of this Act are given wide publicity through public media including the television, radio and
the print media at regular intervals;
(b) the Central Government and State Government officers including the police officers and the members of
the judicial services are given periodic sensitization and awareness training on the issues addressed by
this Act;
(c) effective co-ordination between the services provided by concerned Ministries and Departments dealing
with law, home affairs including law and order, health and human resources to address issues of domestic
violence is established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women under this Act
including the courts are prepared and put in place.

CHAPTER IV

PROCEDURE FOR OBTAINING ORDERS OF RELIEFS

12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of
the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any
domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour
of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate
under this Act shall be set-off against the amount payable under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such set-off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed
or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of
receipt of the application by the court.
 Page 14 of 18
APPENDIX VII RELATED ACTS

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of
sixty days from the date of its first hearing.

13. Service of notice.—(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate
to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on
any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable
time as may be allowed by the Magistrate from the date of its receipt.

(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the
proof that such notice was served upon the respondent and on any other person as directed by the Magistrate
unless the contrary is proved.

14. Counselling.—(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or
the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who
possess such qualifications and experience in counselling as may be prescribed.

(2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the next date of hearing of the
case within a period not exceeding two months.

15. Assistance of welfare expert.—In any proceeding under this Act, the Magistrate may secure the services of
such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in
promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.

16. Proceedings to be held in camera.—If the Magistrate considers that the circumstances of the case so
warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in
camera.

17. Right to reside in a shared household.—(1) Notwithstanding anything contained in any other law for the time
being in force, every woman in a domestic relationship shall have the right to reside in the shared household,
whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the
respondent save in accordance with the procedure established by law.

18. Protection orders.—The Magistrate may, after giving the aggrieved person and the respondent an opportunity
of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place,
pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school
or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or
written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties,
jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or
any other property held either jointly by the parties or separately by them without the leave of the
Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person
assistance from domestic violence;
(g) committing any other act as specified in the protection order.

19. Residence orders.—(1) While disposing of an application under sub-section (1) of section 12, the Magistrate
may, on being satisfied that domestic violence has taken place, pass a residence order—
 Page 15 of 18
APPENDIX VII RELATED ACTS

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the
aggrieved person from the shared household, whether or not the respondent has a legal or equitable
interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in
which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the
Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as
enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem
reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved
person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the
commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal
Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an
order directing the officer-in-charge of the nearest Police Station to give protection to the aggrieved person or to
assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating
to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the Police Station in whose jurisdiction the Magistrate has
been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or
any other property or valuable security to which she is entitled to.

20. Monetary reliefs.—(1) While disposing of an application under sub-section (1) of section 12, the Magistrate
may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may
include, but is not limited to,—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the
aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in
addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case may require.
 Page 16 of 18
APPENDIX VII RELATED ACTS

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to
the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent
resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the
order under sub-section (1)

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to
deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent,
which amount may be adjusted towards the monetary relief payable by the respondent.

21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the
Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act
grant temporary custody of any child or children to the aggrieved person or the person making an application on her
behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of
the child or children, the Magistrate shall refuse to allow such visit.

22. Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on
an application being made by the aggrieved person, pass an order directing the respondent to pay compensation
and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic
violence committed by that respondent.

23. Power to grant interim and ex parteorders.—(1) In any proceeding before him under this Act, the Magistrate
may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of
domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed,
of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22
against the respondent.

24. Court to give copies of order free of cost.—The Magistrate shall, in all cases where he has passed any order
under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the
Police Officer-in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and
any service provider located within the local limits of the jurisdiction of the court and if any service provider has
registered a domestic incident report, to that service provider.

25. Duration and alteration of orders.—(1) A protection order made under section 18 shall be in force till the
aggrieved person applies for discharge.

(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there
is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act,
he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.

26. Relief in other suits and legal proceedings.—(1) Any relief available under sections 18, 19, 20, 21 and 22
may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the
aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of
this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the
aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under
this Act, she shall be bound to inform the Magistrate of the grant of such relief.
 Page 17 of 18
APPENDIX VII RELATED ACTS

27. Jurisdiction.—(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case
may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,

shall be the competent court to grant a protection order and other orders under this Act and to try offences under
this Act.

(2) Any order made under this Act shall be enforceable throughout India.

28. Procedure.—(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22
and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973
(2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an
application under section 12 or under sub-section (2) of section 23.

29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order
made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is
later.

CHAPTER V

MISCELLANEOUS

30. Protection Officers and members of service providers to be public servants.—The Protection Officers and
members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or
any rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the
Indian Penal Code (45 of 1860).

31. Penalty for breach of protection order by respondent.—(1) A breach of protection order, or of an interim
protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of
either description for a term which may extend to one year, or with fine which may extend to twenty thousand
rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who has passed the
order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the
Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961),
as the case may be, if the facts disclose the commission of an offence under those provisions.

32. Cognizance and proof.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of
1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1)
of section 31 has been committed by the accused.

33. Penalty for not discharging duty by Protection Officer.—If any Protection Officer fails or refuses to
discharge his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be
punished with imprisonment of either description for a term which may extend to one year, or with fine which may
extend to twenty thousand rupees, or with both.

34. Cognizance of offence committed by Protection Officer.—No prosecution or other legal proceeding shall lie
against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an
officer authorised by it in this behalf.
 Page 18 of 18
APPENDIX VII RELATED ACTS

35. Protection of action taken in good faith.—No suit, prosecution or other legal proceeding shall lie against the
Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended
to be done under this Act or any rule or order made thereunder.

36. Act not in derogation of any other law.—The provisions of this Act shall be in addition to, and not in
derogation of the provisions of any other law, for the time being in force.

37. Power of Central Government to make rules.—(1) The Central Government may, by notification, make rules
for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any
of the following matters, namely:—
(a) the qualifications and experience which a Protection Officer shall possess under sub-section (2) of section
8;
(b) the terms and conditions of service of the Protection Officers and the other officers subordinate to him,
under sub-section (3) of section 8;
(c) the form and manner in which a domestic incident report may be made under clause (b) of sub-section (1)
of section 9;
(d) the form and the manner in which an application for protection order may be made to the Magistrate under
clause (c) of sub-section (1) of section 9;
(e) the form in which a complaint is to be filed under clause (d) of sub-section (1) of section 9;
(f) the other duties to be performed by the Protection Officer under clause (i) of sub-section (1) of section 9;
(g) the rules regulating registration of service providers under sub-section (1) of section 10;
(h) the form in which an application under sub-section (1) of section 12 seeking reliefs under this Act may be
made and the particulars which such application shall contain under sub-section (3) of that section;
(i) the means of serving notices under sub-section (1) of section 13;
(j) the form of declaration of service of notice to be made by the Protection Officer under sub-section (2) of
section 13;
(k) the qualifications and experience in counselling which a member of the service provider shall possess
under sub-section (1) of section 14;
(l) the form in which an affidavit may be filed by the aggrieved person under sub-section (2) of section 23;
(m) any other matter which has to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as
the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.

1 Came into force on 26-10-2006, vide S.O. 1776(E), dated 17th October, 2006, published in the Gazette of India, Extra.,
Pt. II, Sec. 3(ii), dated 17th October, 2006.

End of Document
 APPENDIX VIII
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX VIII THE MARRIAGE LAWS (AMENDMENT) ACT, 2003 1

(50 of 2003)

[23 December, 2003]

An Act further to amend the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

BE it enacted by Parliament in the Fifty-fourth Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. Short title.—This Act may be called the Marriage Laws (Amendment) Act, 2003.

CHAPTER II

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954

2. Amendment of section 31.—In the Special Marriage Act, 1954 (43 of 1954) (hereinafter referred to as the
Special Marriage Act), in section 31, in sub-section (1), after clause (iii), the following clause shall be inserted,
namely:—

“(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or”

3. Amendment of section 39.—In section 39 of the Special Marriage Act, in sub-section (4), for the words “period
of thirty days”, the words “period of ninety days” shall be substituted.

CHAPTER III

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

4. Amendment of section 19.—In the Hindu Marriage Act, 1955 (25 of 1955) (hereinafter referred to as the Hindu
Marriage Act), in section 19, in sub-section (1), after clause (iii), the following clause shall be inserted, namely:—

(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or”.

5. Amendment of section 28.—In section 28 of the Hindu Marriage Act, in sub-section (4), for the words “period of
thirty days”, the words “period of ninety days” shall be substituted.

CHAPTER IV

MISCELLANEOUS
 Page 2 of 2
APPENDIX VIII

6. Transitory provision.—All decrees and orders made by the court in any proceedings under the Special
Marriage Act or the Hindu Marriage Act shall be governed under the provisions contained in section 3 or section 5,
as the case may be, as if this Act came into operation at the time of the institution of the suit:

Provided that nothing in this section shall apply to a decree or order in which the time for appealing has expired
under the Special Marriage Act or the Hindu Marriage Act at the commencement of this Act.

1 Published in the Gazette of India, Extra., Pt. II, Sec. 1, dated 23rd December, 2003, pp. 1-2, No. 64.

End of Document
 APPENDIX IX
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX IX THE CODE OF CRIMINAL PROCEDURE (AMENDMENT)

ACT, 2001 1
(50 of 2001)

[24th September, 2001]

An Act further to amend the Code of Criminal Procedure, 1973.

BE it enacted by Parliament in the Fifty-second Year of the Republic of India as follows:—

1. Short title.—This Act may be called the Code of Criminal Procedure (Amendment) Act, 2001.

2. Amendment of section 125.—In the Code of Criminal Procedure, 1973 (2 of 1974) (hereinafter referred to as
the principal Act), in section 125,—
(i) in sub-section (1),—
(a) the words “not exceeding five hundred rupees in the whole,” shall be omitted;
(b) after the proviso and before the Explanation, the following provisos shall be inserted, namely:—

“Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and the
expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to
such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application to such person.”;
(ii) for sub-section (2), the following sub-section shall be substituted, namely:—

“(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be.”;
(iii) in sub-sections (3) and (4), for the word “allowance”, wherever it occurs, the words “allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case may be,” shall be
substituted.

3. Amendment of section 127.—In section 127 of the principal Act,—

(i) for sub-section (1), the following sub-section shall be substituted, namely:—

“(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly
allowance for the maintenance or interim maintenance, or ordered under the same section to pay a
 Page 2 of 2
APPENDIX IX

monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as
the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the
maintenance or the interim maintenance, as the case may be.”;
(ii) in sub-section (3), in clause (c), for the word “maintenance”, the words “maintenance or interim
maintenance, as the case may be,” shall be substituted;
(iii) in sub-section (4),—
(a) for the words “monthly allowance has been ordered”, the words “monthly allowance for the
maintenance and interim maintenance or any of them has been ordered” shall be substituted;
(b) for the words “as monthly allowance in pursuance of’, the words “as monthly allowance for the
maintenance and interim maintenance or any of them, as the case may be, in pursuance of” shall be
substituted.

4. Amendment of section 128.—In section 128 of the principal Act,—

(i) for the word “maintenance”, the words “maintenance or interim maintenance and expenses of proceeding,
as the case may be,” shall be substituted;
(ii) for the words “whom the allowance”, the words “whom the allowance for the maintenance or the allowance
for the interim maintenance and expenses of proceeding, as the case may be,” shall be substituted;
(iii) for the words “allowance due”, the words “allowance, or as the case may be, expenses, due” shall be
substituted.

1 Published in the Gazette of India, Extra., Pt. II, Sec. 1, dated 24th September, 2001.

End of Document
 APPENDIX X
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX X THE INDIAN DIVORCE (AMENDMENT) ACT, 2001 1

(51 of 2001)

[24th September, 2001]

An Act further to amend the Indian Divorce Act, 1869.

BE it enacted by Parliament in the Fifty-second Year of the Republic of India as follows:—

1. Short title and commencement.—(1) This Act may be called the Indian Divorce (Amendment) Act, 2001.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette,
appoint.

2. Amendment of section 1.—In section 1 of the Indian Divorce Act, 1869 (4 of 1869) (hereinafter referred to as
the principal Act), the word “Indian” shall be omitted.

3. Amendment of section 3.—In section 3 of the principal Act,—

(a) in clause (3), for the words “or of whose jurisdiction under this Act”, the words “or of whose jurisdiction
under this Act the marriage was solemnized or” shall be substituted;
(b) clauses (6) and (7) shall be omitted.

4. Omission of section 7.—Section 7 of the principal Act shall be omitted.

5. Substitution of new section for section 10.—For section 10 of the principal Act, the following section shall be
substituted, namely:—
“10. Grounds for dissolution of marriage.—(1) Any marriage solemnized, whether before or after the
commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the
marriage, the respondent—
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately
preceding the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the presentation of the petition,
been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period of not less than two years immediately preceding the presentation of the petition,
been suffering from venereal disease in a communicable form; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would
naturally have heard of the respondent if the respondent had been alive; or
(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been
consummated; or
 Page 2 of 4
APPENDIX X

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards
after the passing of the decree against the respondent; or
(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the
petition; or
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the
petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has,
since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”

6. Insertion of new section 10a.—After section 10 of the principal Act, the following section shall be inserted,
namely:—

10A. Dissolution of marriage by mutual consent.—(1) Subject to the provisions of this Act and the rules made thereunder, a
petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together,
whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001,
on the ground that they have been living separately for a period of two years or more, that they have not been able to live
together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred
to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the
parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit,
that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage
to be dissolved with effect from the date of decree.”

7. Substitution of new section for section 11.—For section 11 of the principal Act, the following section shall be
substituted, namely:—

11. Adulterer or adulteress to be co-respondent.—On a petition for dissolution of marriage presented by a husband or wife
on the ground of adultery, the petitioner shall make the alleged adulterer or adulteress a co-respondent, unless the
petitioner is excused by the Court from so doing on any of the following grounds, namely:—
(a) that the wife, being the respondent is leading the life of a prostitute or the husband, being respondent is leading
an immoral life and that the petitioner knows of no person with whom the adultery has been committed;

(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made
due efforts to discover it;

(c) that the alleged adulterer or adulteress is dead.”.

8. Amendment of section 13.—In section 13 of the principal Act, the last paragraph shall be omitted.

9. Amendment of section 14.—In section 14 of the principal Act, in paragraph 4, the words “in the manner and
subject to all the provisions and limitations in sections 16 and 17 made and declared” shall be omitted.

10. Amendment of section 15.—In section 15 of the principal Act—

(a) the words “without reasonable excuse” shall be omitted;
(b) for the words “her adultery and cruelty”, the words “her adultery or cruelty or desertion” shall be substituted;
(c) for the words “such cruelty”, the words “such adultery, cruelty” shall be substituted.

11. Amendment of section 16.—In section 16 of the principal Act, the words “not being a confirmation of a decree
of a District Court,” shall be omitted.

12. Substitution of new section for section 17—Power of high court to remove certain suits.—For section 17
of the principal Act, the following section shall be substituted, namely:—

“17. During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are
or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court
 Page 3 of 4
APPENDIX X

by general or special order from time to time directs, to apply to the High Court to remove the suit under section 8, and the
Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a court of original jurisdiction, and
the provisions contained in section 16 shall apply to every suit so removed; or it may direct the District Judge to take such
steps in respect of the alleged collusion as may be necessary, to enable him to make a decree in accordance with the
justice of the case.”

13. Omission of section 17a.—Section 17A of the principal Act shall be omitted.

14. Amendment of section 18.—In section 18 of the principal Act, the words “or to the High Court” shall be
omitted.

15. Amendment of section 19.—In section 19 of the principal Act, in the last paragraph, for the words “jurisdiction
of the High Court”, the words “jurisdiction of the District Court” shall be substituted.

16. Omission of section 20.—Section 20 of the principal Act shall be omitted.

17. Amendment of section 22.—In section 22 of the principal Act, the words “without reasonable excuse “shall be
omitted.

18. Amendment of sections 23, 27 and 32.—In sections 23, 27 and 32 of the principal Act, the words “or the High
Court” shall be omitted.

19. Omission of section 34.—Section 34 of the principal Act shall be omitted.

20. Omission of section 35.—Section 35 of the principal Act shall be omitted.

21. Amendment of section 36.—In section 36 of the principal Act, the proviso shall be omitted.

22. Amendment of section 37.—In section 37 of the principal Act, for the portion beginning with the words “The
High Court” and ending with the words “the husband shall”, the words “Where a decree of dissolution of the
marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband
shall” shall be substituted.

23. Omission of section 39.—Section 39 of the principal Act shall be omitted.

24. Amendment of section 40.—In section 40 of the principal Act, for the portion beginning with the words “The
High Court” and ending with the words “may inquire into”, the words “The District Court may, before passing a
decree for dissolution of the marriage or a decree of nullity of marriage, inquire into” shall be substituted.

25. Amendment of section 43.—In section 43 of the principal Act, for the portion beginning with the words “In any
suit for obtaining” and ending with the words “deems proper”, the words “In any suit for obtaining a dissolution of
marriage or a decree of nullity of marriage instituted in a District Court, the Court may from time to time before
making its decree, make such interim orders as it may deem proper” shall be substituted.

26. Amendment of section 44.—In section 44 of the principal Act, for the portion beginning with the words “The
High Court” and ending with the words “may upon application”, the words “Where a decree of dissolution or nullity
of marriage has been passed, the District Court may, upon application” shall be substituted.

27. Amendment of section 45.—In section 45 of the principal Act, for the words “Code of Civil Procedure”, the
words and figures “Code of Civil Procedure, 1908 (5 of 1908)” shall be substituted.

28. Amendment of section 52.—In section 52 of the principal Act, for the portion beginning with the words “by a
wife” and ending with the words “without reasonable excuse”, the words “by a husband or a wife, praying that his or
her marriage may be dissolved by reason of his wife or her husband, as the case may be, having been guilty of
adultery, cruelty or desertion” shall be substituted.

29. Amendment of section 55.—In section 55 of the principal Act,—

(a) the first proviso shall be omitted;
(b) in the second proviso, for the words “Provided also”, the words “Provided shall be substituted.
 Page 4 of 4
APPENDIX X

30. Substitution of new section for section 57.—For section 57 of the principal Act, the following section shall be
substituted, namely:—

“57. Liberty to parties to marry again.—Where a decree for dissolution or nullity of marriage has been passed and either the
time for appeal has expired without an appeal having been presented to any court including the Supreme Court or an
appeal has been presented but has been dismissed and the decree or dismissal has become final, it shall be lawful for
either party to the marriage to marry again.”.

31. Amendment of section 62.—In section 62 of the principal Act, for the words “Code of Civil Procedure”, the
words and figures “Code of Civil Procedure, 1908 (5 of 1908)” shall be substituted.

32. Repeal.—The Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction
Act, 1940 and the Indian Divorce Act, 1945 are hereby repealed.

1 Published in the Gazette of India, Extra., Pt. II, Sec. 1, dated 24th September, 2001.

End of Document
 APPENDIX XI
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX XI THE MARRIAGE LAWS (AMENDMENT) ACT, 2001 1

(49 of 2001)

[24th September, 2001]

An Act further to amend the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955.

BE it enacted by Parliament in the Fifty-second Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. Short title.—This Act may be called the Marriage Laws (Amendment) Act, 2001.

CHAPTER II

AMENDMENTS TO THE INDIAN DIVORCE ACT, 1869

2. Amendment of section 36.—In section 36 of the Indian Divorce Act, 1869 (4 of 1869) (hereafter in this Chapter
referred to as the Divorce Act),—
(a) for the words “the wife may present a petition for alimony pending the suit”, the words “the wife may
present a petition for expenses of the proceedings and alimony pending the suit” shall be substituted;
(b) for the words “for payment to the wife of alimony pending the suit”, the words “for payment to the wife of
the expenses of the proceedings and alimony pending the suit” shall be substituted;
(c) after the proviso, the following proviso shall be inserted, namely:—

“Provided further that the petition for the expenses of the proceedings and alimony pending the suit, shall, as
far as possible, be disposed of within sixty days of service of such petition on the husband.”.

3. Amendment of section 41.—In section 41 of the Divorce Act, the following proviso shall be inserted, namely:—

“Provided that the application with respect to the maintenance and education of the minor children pending the suit,
shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.”.

CHAPTER III

AMENDMENTS TO THE PARSI MARRIAGE AND DIVORCE ACT, 1936

4. Amendment of section 39.—In section 39 of the Parsi Marriage and Divorce Act, 1936 (hereafter in this
Chapter referred to as the Parsi Marriage and Divorce Act), the following proviso shall be inserted, namely:—

“Provided that the application for the payment of the expenses of the suit and such weekly or monthly sum during the suit,
 Page 2 of 2
APPENDIX XI

shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as
the case may be.”.

5. Amendment of section 49.—In section 49 of the Parsi Marriage and Divorce Act, the following proviso shall be
inserted, namely:—

“Provided that the application with respect to the maintenance and education of such children during the suit, shall, as far
as possible, be disposed of within sixty days from the date of service of notice on the respondent.”.

CHAPTER IV

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954

6. Amendment of section 36.—In section 36 of the Special Marriage Act, 1954 (43 of 1954) (hereafter in this
Chapter referred to as the Special Marriage Act), the following proviso shall be inserted, namely:—

“Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during
the proceeding under Chapter V or Chapter VI shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the husband.”.

7. Amendment of section 38.—In section 38 of the Special Marriage Act, the following proviso shall be inserted,
namely:—

“Provided that the application with respect to the maintenance and education of the minor children, during the proceeding,
under Chapter V or Chapter VI shall, as far as possible, be disposed of within sixty days from the date of service of notice
on the respondent.”.

CHAPTER V

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

8. Amendment of section 24.—In section 24 of the Hindu Marriage Act, 1955 (25 of 1955) (hereafter in this
Chapter referred to as the Hindu Marriage Act), the following proviso shall be inserted, namely:—

“Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the
proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the
husband, as the case may be.”.

9. Amendment of section 26.—In section 26 of the Hindu Marriage Act, the following proviso shall be inserted,
namely:—

“Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding
for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the
respondent.”

1 Published in the Gazette of India, Extra., Pt. II, Sec. 1, dated 24th September, 2001.

End of Document
 APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES
Dr Paras Diwan: Law of Marriage and Divorce, 7th ed
Paras Diwan

Dr Paras Diwan: Law of Marriage and Divorce, 7th ed > Dr Paras Diwan: Law of Marriage and
Divorce, 7th ed > APPENDIX

APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(1) THE ANDHRA PRADESH FAMILY COURTS (HIGH COURT) RULES, 1995
Roc. No. 78-A/S0/95.—In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (Central
Act 66 of 1984) the High Court of Andhra Pradesh hereby makes the following rules to regulate the proceedings for
the Family Courts in the State of Andhra Pradesh.

1. Short title.
(a) These rules may be called the Andhra Pradesh Family Courts (High Court) Rules, 1995.
(b) Commencement: These rules shall come into force, with effect from the date of publication of these rules in
Andhra Pradesh Gazette.
(c) Application: These rules shall apply to the Family Courts established in the State of Andhra Pradesh under
section 3 of the Family Courts Act, 1984.

2. Definitions.—In these rules, unless the context otherwise requires:

(a) Act means the Family Courts Act, 1984.
(b) Court means the Family Court established, under sub-section (1) of section 3 of the Act.
(c) High Court means the High Court of Andhra Pradesh.
(d) Petition shall include an application under Chapter IX of the Code of Criminal

Procedure, unless the subject-matter or context otherwise requires.

(e) All other words and expressions used but not defined in these rules and defined in the Act or in the Code of
Civil Procedure, 1908 or in thecode of Criminal Procedure, 1973, shall have the meaning respectively
assigned to them in the Act or as the case may be.

3.
(a) The working hours and sittings of the Family Courts shall be as determined by the High Court in their
application to the Civil Courts, except that the High Court shall fix in each calendar year the working hours
and sittings of the Family Courts during vacations and holidays.
(b) The place or places where the Family Court shall sit shall be as specified by the High Court from time to
time by an order in this regard.
(c) The Family Court shall hold its sittings in open or in camera as determined by it in each case, but shall hold
the proceedings in camera if either party so desires.
(d) The Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the
said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties,
to such other person or persons as the Judge may consider it necessary.
(e) Notwithstanding anything contained above, if in any particular case the Judge is of the opinion that it will
tend to the general convenience of the parties or of the witnesses or for any other parties to hold its sittings
at a place other than its ordinary place of its sittings but within its limits of territorial jurisdiction, the Judge
 Page 2 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

may do so for reasons to be recorded in writing and prior notice to all parties and to such other persons as
the Judge may consider necessary. The Judge shall intimate the High Court about such sittings soon after
a decision is taken in this behalf.
(f) The Family Court shall function on all days throughout the year except on authorised holidays as declared
by the High Court.
(g) The Subordinate Courts calendar shall be the calendar of the Family Court except that there will be no
vacations.
(h) No act of the Family Court shall be invalid for holding or continuing its sittings at any place of its choice on
any holiday or outside normal working hours when such sittings is informed to the parties in advance.

4. All proceedings before the Family Courts shall be instituted by a petition in Form No. I appended to these Rules,
duly verified by the petitioner.

5. All interlocutory applications in the proceedings already instituted shall be entertained if verified by the applicant
in the matter as in Form No. I.

The petition in Form No. I or any interlocutory application shall be in any language in Schedule VIII to the
Constitution of India.

There shall be no Court-fee or any other fee in respect of the petition in Form No. I or any interlocutory application
in the proceedings before the Family Court.

6. Notice of the proceedings including in any interlocutory application shall be issued in Form No. II appended to
these rules along with a copy of the petition or the application as the case may be.

7. The Court shall ordinarily fix a date at least three weeks from the date of ordering notice for the appearance of
the opposite party. The Court can fix any later or earlier date if the proceedings so demand.

8. The provisions in Order I of the Code of Civil Procedure for addition of a necessary party or a proper party shall
be applicable to a proceedings before the Family Court.

9. Proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be
allowed to appear only as amicus curiae, if the Court finds it necessary in the interest of Justice, and the fee, if any
shall be paid to him as prescribed under the Rules framed under section 23 of the Act.

10. The Court shall record only the substance of what the witness deposes and prepare a memorandum
accordingly which shall be read and explained to the witness and the memorandum of the said substance recorded
by the Court shall be signed by the witness and the Presiding Officer of the Court and shall form part of the record.
The evidence taken on affidavit, if any, shall also form part of the record of the Court. The judgment shall contain a
concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.

11. The Court shall furnish to the parties to the proceedings before it a copy of the judgment certified to be a true
copy free of cost.

12. Appeal under section 19(1) of the Act shall be in the manner of appeals against the original decree or order in a
civil proceedings, but there shall be no Court-fee payable for the appeal.

13. The Rules framed under the Guardians and Wards Act, 1890 by the High Court and published in Andhra
Pradesh Gazette, Part II, dated 11-2-1993 shall be applicable in matters relating to Guardians and Wards Act, 1890
to the extent they are not inconsistent with the provisions of the Act or the Rules framed thereunder.

14. Application for Guardianship.—All petitions for guardianship other than applications over which the High
Court has jurisdiction, shall be filed before the Family Court.

15. Contents of the Application.—Every petition for guardianship, when it is by a person other than the natural
parent or natural guardian of the child shall be accompanied by a Home Study Report of the person asking for such
guardianship and his/her spouse, if any, prepared by an approved Association of Social Welfare Agencies etc., or a
 Page 3 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

suitably trained social worker, from the list of agencies and/or persons for the purpose of their association with the
Court approved by the Government in the rule made under section 5 of the Act, in consultation with the High Court.

16. In case of a child placed in guardianship the Court may, at any time direct a counsellor attached to the Court to
supervise the placement of the child and submit a Report thereon to the Court In such manner as the Court may
deem fit.

17. A child study report of the child proposed to be taken in guardianship together with a photograph of the child
should also be filed in all petitions for guardianship, as required under rule 23 of the Rules framed under the
Guardian and Wards Act, 1890. Such report shall be in Form No. III prescribed in the appendix when the child is
institutionalized or Court committed. The report shall be countersigned by the petitioner.

FORM I

(See rule No. 5)

(IN THE MATTER OF FAMILY COURTS ACT, 1984)

O.P. No. ................of 20............

Between

A.B...........................................................................Petitioner

(Father’s/Husband’s name, age, occupation and full address to be given)

And

C.D........................................................................Respondent

(Father’s/Husband’s name, age, occupation and full address to be given)

Petition for...............(here give briefly the nature of relief such as for dissolution of marriage under
section...............of Hindu Marriage Act; for maintenance under section 125 of Cr. P.C. etc.)

...............Petitioner

Verification

I...............the petitioner abovenamed do hereby declare that what is stated in this petition is true to the best of my
knowledge and based on my information and belief.

Sd/-

...............Petitioner

Verified on this the............................................. day of...........................20...at...............

FORM II

(In the family courts at...........)

O.P. No............................................................................of 20........................................................

On the matter of Family Courts Act, 1984)

Between:

A.B..............Petitioner
 Page 4 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(Father’s/Husband’s name, age, occupation and full address to be given)

And

C.D........................................Respondent

(Father’s/Husband’s name, age, occupation and full address to be given)

To

Sri..............................

Sir

Whereas an application has been made to this Court under rule 4 of the Rules framed under the Family Courts Act
of 1984, praying that the Hon’ble Court may be pleased to............................................. (here set out the prayer)
.................. against you.

You are hereby required to appear in person before the Court at 10.30 a.m. on........day of.............20......... to
answer the same and bring with your such witnesses as may be necessary to enable the Court to enquire into the
matter in default of which the Court may proceed in your absence and decide the case in accordance with law.

FORM III

(CHILD STUDY REPORT)

Information of the Child to be placed in Guardianship

Name of the Child................................................Passport Size Photo of the Child

Name of the Institution ......................................

Address ......................................

Part I

1. Name of the Child

2. Reference No. as per General-Register of the Institution.
3. Present Age
4. Sex
5. Religion (if known)
6. Date of Birth (if available)
7. Place of Birth (if available)

Part II

1. Petition No.
2. Name of the Petitioner
3. Complete address of the Petitioner
1Part III

(Legal Data)

1. Name of the committing Court

 Page 5 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

2. Age of the child at the time of commitment.

3. Date of order of commitment
4. Period of commitment
5. Final date of release
6. Section of the Juvenile Justice Act, if any
7. Date of admission to your institution. Please enclose a copy of the Court Commitment Warrant

Please enclose a copy of the report of the Probation Officer which he/she has submitted to the juvenile Court at the
time of commitment of the child.

Part IV

(Social Data)

1. How the child came to your institution:—

(a) Admitted directly.
(b) Vacancy was reserved and then got committed.
(c) Transfer from any other institution and if so which one.
(d) Any other source.
2. Circumstances under which the child came to the original institution.
3. Reasons for seeking protection in the Institution.
4. Information about the relatives.
5. In case if they are alive, have they agreed to give away the child in adoption/guardianship and if so,
whether written consent has been obtained.
6. Whether the relatives have established any contacts with the child after his/her admission to your
institution.
7. If the child is purely destitute, give factors which will show that.
8. Any other information which you would like to add.

Part V

(Behavioural Observations)

1. How long the child is with you in your institution?

2. Attitude towards other inmates.
3. Relationship towards relatives, staff and other adults.
4. Intelligence (if and where possible, I.Q. report should be enclosed).
5. General personality and description of the child.
6. Play activity and any specific talent.
7. Observers impressions about the child.
8. Please indicate how the parent plan of rehabilitation will be useful to the child taking into consideration the
child’s needs and temperament.
9. If the child is school-going give a detailed report about his/her standard, attendance, general interest in
studies, progress defects, if any
10. Any other information.

Part VI
 Page 6 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Physical and Medical report form enclosed

Part VII

1. Have you reviewed the Home Study Report of the adoptive parents/guardians and do you feel that the
placement of this child with this family is suitable?
2. Have the adoptive parents seen the details of child whom they wish to bring-up and have they approved of
the child after knowing, the general conditions physical or mental defect etc. If so, please give a copy of the
certificate wherein the adoptive parents/guardians have given their consent in writing that they have
examined the Child Study Report and accept the proposed child.

Note.—Dare of Departure of the child from the country should be conveyed to the Director of Child Welfare and
consulting agency for the purpose of follow-up.

Part VIII

1. Shri/Smt........Superintendent........hereby certify that the Information given in this form about the child is correct.

I also enclose herewith the certificate/attested copies of the following documents:—

1. Copy of the Court Warrant.
2. Copy of the report of the Probation Officer.
3. Consent of the parents to give away the child.
4. Consent of the adoptive parents to accept the child.

Signature.....................

Place:.....................Name...........................

Date:.....................Designation.................

Note.—Date of Departure of the Child from the country should be conveyed to the Director of Child Welfare and
Consulting Agency for the purpose of follow-up.

NOTIFICATIONS

MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS (DEPARTMENT OF JUSTICE)

1Notification No. S.O. 92(E), dated 6-2-1995.

In exercise of powers conferred by sub-section (3) of section 1 of the Family Courts Act, 1984 (66 of 1984) the
Central Government hereby appoints the 15th day of February, 1995 as the date on which the said Act shall come
into farce in the State of Andhra Pradesh.

(2) THE CALCUTTA (HIGH COURT) FAMILY COURTS RULES, 1990

No. 1476-A. (19th February, 1988).—In exercise of the powers vested in the High Court by section 21 of the
Family Courts Act, 1984, the Calcutta High Court makes the following rules:—

INTRODUCTION

1. Name.—These rules may be called “the Rules of the Family Court”.

2. Application.—They will apply to the Family Courts constituted in the State of West Bengal under the Family
Courts Act, 1984.*
 Page 7 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

3. Party entitled to legal advice.—A party will be entitled to lake legal advice at any stage of the proceedings
either before counsellor or before the Court. A party in indigenous circumstances will be entitled to free legal aid
and advice.

4. Panel of counsel for free legal advice.—The Court may maintain a panel of counsel preferably the social
workers having legal knowledge and are willing to tender free legal aid and advice. A party entitled to free advice
may utilise the services of any of the counsels from the said panel provided he/she is available to help him/her in
the case.

As a principle, the counsels may be requested to help in deserving cases without any remuneration.

5. Conditions of engagement.—The other terms and conditions of engagement of such a counsel may be
determined by the Family Court.

6. Circumstances entitling a party to legal aid.—The circumstances under which such legal aid will be made
available to a party will be as laid by the High Court.

Institution of Proceedings and Service

7. Institution of Proceedings.—All proceedings instituted before the Family Court will be by way of a petition.
However, in respect of applications under Chapter IX of the Criminal Procedure Code, the provisions of that Code
will apply.

8. Filing of petition in duplicate.—A petition or any other application will be filed In duplicate. One copy of such
petition or application will be forwarded by the Registrar of the Family Court to the Principal Counsellor.

9. Summons to respondent.—In all matters other than those under Chapter IX of the Criminal Procedure Code,
the Writ of Summons to appear and answer shall be in Form No. I with variations as the circumstances of the case
may require.

10. Name and address of the party to be slated in every process.—The name and address of the party shall be
stated in every Writ of Summons, Witness Summons, interim application Notice, Warrant and every process of the
Court issued at the instance of such party.

11. Summons, etc., how attested and signed.—All Writs of Summons, Rules, Orders, Warrants and other
mandatory processes shall be sealed with the seal of Court and shall be signed by the Registrar added thereto the
date of signing.

12. Sealing of summons, rules and decrees.—The seal of the Court shall not be affixed to any Writ of Summons,
Rule, Order, Warrant or other mandatory process, unless the same is signed by an officer of the Court to be called
the sealer and unless the name of the party is subscribed thereto. The dale of sealing shall be inserted below the
signature of the sealer.

13. Returnable dale of summons.—Unless otherwise ordered, the Writ of Summons shall be made returnable
three weeks after the date of the filing of the petition, if the respondent resides within the local limits of the Court. If
the respondent resides outside the said limits, the returnable date will be fixed on the day of the week fixed for
giving directions as provided in rule 33.

14. Returnable dale of summons in petition to be on the day fixed for giving directions.—The Writ of
Summons shall be made returnable on the day on which the petition is to be placed on board for directions as
herein provided in rule 32.

15. Mode of service of summons.—A Writ of Summons shall be served in the manner prescribed in the Code of
Civil Procedure, save and except in proceedings under Chapter IX of the Criminal Procedure Code where the
provisions of that Code will apply.

16. Writ of summons and other process not to be served on Saturdays, Sundays and holidays.—No Writ of
Summons or other process shall be served on Saturdays, Sundays or on Holidays notified by the Court, except by
leave of the Court. A Writ of Summons need be served on a respondent personally.
 Page 8 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

17. Copy of petition to be furnished to the respondent.—Any respondent applying to the petitioner for a copy of
the petition and exhibits annexed thereto shall be furnished with the same but where there are several respondents,
it shall be sufficient to supply one copy of the petition and exhibits to the party/parties:

Provided that if the application is made after the passing of a decree in a petition, such copies need only be
furnished to the respondent on payment of the copying charges.

18. Power to direct issue of summons.—Whenever upon the further amendment of any Writ of Summons the
Registrar shall be of opinion that a fresh Writ of Summons should be substituted he shall direct it to be done and
such fresh Writ of Summons shall be prepared by the petitioner and be examined, signed and sealed by the proper
officer.

19. Proof of service of summons.—Unless the Court shall otherwise order, the service of Summons to appear
and answer shall be proved by evidence showing that the Summons was served in the manner provided by the
Code of Civil Procedure. Such proof shall ordinarily be by the affidavit of the bailiff and (as to such matter as the
bailiff cannot speak to of his knowledge) of the person who attended the bailiff for the purpose of identification at the
time of service, or of such other person or persons who can speak to the identity of the persons served or to other
matters necessary to be proved in respect of the service.

20. When service through another Court.—When the Summons has been served through another Court, the
service may be proved by deposition made before the Court through which the service was effected.

21. Substituted service.—Application for substituted service of the Writ of Summons shall be made to the
Registrar. The application shall be supported by an affidavit, and in the case of service through another Court, by
the deposition of the officer who attempted to make the service, and of such other person or persons as may have
accompanied him for the purpose of pointing out the party to be served, slating when, where and how such
servicing was attempted to be made.

22. Dismissal of petition if summons not served within six months.—If the Writ of Summons is not served
within six months from the date of the filing of the petition, the Registrar, shall unless good cause is shown, place
the petition on board for directions and appropriate orders. The Registrar shall notify such petitions on his notice
board one week before they are placed on the board for dismissal.

Counselling Centre

23. Counselling Centre.—There shall be attached to the Family Court in each city, town or other area a centre to
be known as “The Counselling Centre of the Family Court at....................”.

24. Composition.—Each Centre may have a Principal Counsellor and shall have counsellors whose number may
be determined by the High Court.

25. Different units of Counselling Centre.—The Counselling Centre may be divided into different units and may
be located in the Court premises and/or in such place or places as the High Court may direct.

26. Appointment of Counsellors.—Counsellors attached to the Counselling Centre will be appointed by the High
Court in consultation with one or more professionally qualified experts in family and child welfare, preferably
working with a recognised institution of social science or social work.

27. Qualification.—Persons having a Master’s Degree in social work with maximum experience of 2 years in family
counselling will be eligible for appointment as Counsellor.

Proceedings in Court

28. Directions on the Returnable date.—On the returnable date of the summons, the petition will be placed for
directions before a Judge of the Family Court to whom this work may be assigned by the Principal Judge of the
Family Court.

29. Date of giving directions.—One day in a week will be designated by the Principal Judge for the giving of such
directions.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

30. Presence of counsellor in court.—On the date fixed for giving directions, the Principal Counsellor or such
other Counsellor designated by him shall attend the Court of the Judge giving directions.

31. Direction to attend counsellor.—When giving such directions, the Judge shall, in consultation with the
Principal Counsellor or such other counsellor who may be present in court, direct the parties to attend a specified
counsellor for the purpose of counselling.

32. Selection of counsellor.—Such counsellor will be chosen bearing in mind the convenience of the parties, their
special requirements and the area in which the unit to which the counsellor is attach is located.

Counselling Procedure

33. Counsellor to fix time and date for counselling.—The counsellor appointed to counsel the parties will fix the
time and date of appointment. The parties shall be bound to attend the counsellor on the date and at the time so
fixed.

34. Failure to attend counselling.—If one of the parties fails to attend the counsellor on the date and at the time
so fixed, the counsellor may fix another date and time and inform the absentee party accordingly by registered post.
If the said party does not attend the counselling centre on such adjourned date, the counsellor may make a report
to the court stating that one or both the parties have failed to attend the counselling centre, On such report being
made, the court may proceed with the matter without prejudice to other powers of the Court to take action against
defaulting party.

35. Functions of Counsellor.—Counsellor entrusted with any petition shall assist and advise the parties regarding
the settlement of the subject-matter of dispute between the parties or any part thereof. The counsellor shall also
help the parties in arriving at reconciliation.

36. Home visits.—The counsellor in the discharge of his duties will be entitled to pay home visits to the homes of
any of the parties.

37. Interviews.—The counsellor in the discharge of his duties will be entitled to interview relatives, friends and
acquaintances of parties or any of them.

38. Information from employer.—The counsellor in the discharge of his duties may seek such information as he
may deem fit from the employer of any of the parties,

39. Reference to experts.—The counsellor may refer the parties to an expert in any other area such as medicine
or psychiatry.

40. Panel of experts.—The Principal Judge in consultation with the Principal Counsellor of the Family Court shall
prepare a panel of such experts.

41. List of institutions, agencies etc.—The Principal Judge in consultation with the Principal Counsellor shall also
prepare a list of institutions, organisations; or agencies working in the area of family welfare, child guidance,
employment or in any other area that he may deem fit in order to enable a counsellor or parties to obtain the
assistance of such an institution, organisation or agency.

42. Assistance for other organisation etc.—The counsellor may take the assistance of such other organisation,
institution or agency in the discharge of his duties.

43. Confidentiality of information.—Information gathered by the counsellor, any statement made before the
counsellor or any notes or report prepared by the counsellor will be treated as confidential. The counsellor shall not
be called upon to disclose this information, statements, notes or report to any court except with the consent of both
the parties.

44. Counsellor not to give evidence.—The counsellor shall not be permitted to give evidence in any Court in
respect of this information, statements, notes or report:

Provided, however, that the Counsellor will submit to the court a report relating to home environment of the parties
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

concerned, their personalities and their relationship with their child and/or children in order to assist the court in
deciding the question of custody or guardianship of any child or children of the marriage:

Provided further that the counsellor, will also submit to the Court a report relating to home environment, income or
standard of living of party or parties concerned in order to assist the court in determining the amount of
maintenance and/or all money to be granted to one of the parties.

45. Report from the Counsellor.—The Court may also request the counsellor to submit to it a report on any other
subject in order to assist the Court in adjudicating upon the matter before it or any part thereof.

46. Parties right to make submissions.—The parties will be entitled to make their submissions on the report.

47. Counsellor not to be cross-examined.—However, the counsellor shall not be asked to give evidence and
shall not be cross-examined in any Court in respect of the report so made.

48. Submission of memorandum.—Save as aforesaid, the counsellor will submit a brief memorandum to the
Court informing the Court of the outcome of the proceedings before him.

49. Settlement before counsellor.—When the parties arrive at a settlement before the counsellor relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
countersigned by the counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court
considers the terms of the settlement unconscionable or unlawful.

50. Counsellors right to supervise custody of children.—The counsellor will be entitled to supervise the
placement of children in custody of a party and will be entitled to pay surprise visits to the home where the child
resides. In the event of the counsellor coming to conclusion that any alteration Is required in the arrangement
relating to custody of a child and/or children, the counsellor will make a report to the Court in that conclusion.
Thereupon the Court may, after notice to the parties, pass such orders in that connection as the Court may deem
fit.

51. Counsellors right to supervise reconciliation.—The counsellor will also be entitled to supervise/guide and/or
assist reconciled couples, although the matter is no longer pending in Court.

52. Co-habitation, between the parties in the course of conciliation proceedings before the counsellor will not be
deemed to be condonation of the matrimonial offence.

Hearing of Petitions in Court

53. Filing memorandum in Court.—On the proceedings before the counsellor coming to an end and on the
counsellor filling a memorandum in the petition setting the outcome of the proceedings before him, the Registrar will
call a meeting of the parties to fix a date of hearing of the petitions. Intimation of such meeting will be given to the
parties by registered post or personally.

54. Meeting before Registrar.—At the meeting so fixed the Registrar will fix a date of hearing after consulting both
the parties.

55. Ascertaining time to be taken up in hearing.—Registrar will also ascertain from the parties the approximate
time to be taken by each party before the Court for the hearing of the matter. On the date of hearing the time so
ascertained will be kept available on the following consecutive working days also if the mailer is likely to take more
than a day.

56. Consequence of absence before the Registrar.—In the event of any party remaining absent at the meeting
called by the Registrar, the Registrar will fix such date of hearing as he may deem fit. Registrar shall fix a date at
least four weeks after the date of the meeting.

57. Placing the petition on the board of the Court.—On the date so fixed by the Registrar the petition shall be
placed on the board of the Court for hearing and final disposal.

58. Adjourned date of hearings.—Any party finding the date fixed by the Registrar unsuitable for any reason may
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

get it altered by the Registrar after notice to the other side but at least two weeks before it is placed on the daily
board.

59. Registrar not to alter date.—Registrar will not ordinarily alter the date when the date has been fixed in the
presence of both the sides.

60. Adjournment by the Court.—A petition so fixed on the daily board will not be adjourned by the Court unless
there are exceptional circumstances justifying such adjournment and unless they are such as could not have fixed
before the Registrar. The Court will record its reasons for adjourning a mailer.

61. Independent legal representation of a minor.—It will be open to the Court to appoint any person capable of
protecting the interests of a minor as his/her representative to represent independently the minor affected by a
litigation before the Court. The Court shall endeavour that such representative should not derive any undue
pecuniary advantage out of this appointment. The Court may appoint a representative amicus curiae to assist the
Court in the discharge of its duties.

62. Tape-recording of evidence.—Evidence given before the Court shall be tape-recorded.

63. Memorandum of evidence.—The Court shall also prepare a memorandum of substance of what the witness
deposes as prescribed under section 15 of the Family Courts Act, 1984.

64. Transcript of tape-recorded evidence.—In the event of any appeal or revision being filed before the High
Court, a party may apply to the Court for transcription of the tape-recorded evidence. Such transcription shall be
supplied to the party concerned on payment of prescribed fees.

65. Provisions of C.P.C. & Cr. P.C. to apply.—Save as aforesaid, the provisions of the Code of Civil Procedure,
or the Code of Criminal Procedure, as the case may be, shall apply to proceedings before the Family Court.

Interim Applications

66. Interim applications.—All interim applications to the Court will be separately numbered as Interim Application
No. ................in Petition No. ...................

67. Interim applications while matter is pending before counsellor.—An interim application may be made even
while the matter is pending before a counsellor.

68. Report from the Counsellor.—The Court may ask the counsellor to submit an interim report for the purposes
of such application before deciding an interim application.

Guardianship

69. Application for Guardianship.—All applications for guardianship other than applications over which the High
Court has jurisdiction, will be filed before the Family Court.

70. Form.—Such applications will be in the form of a petition.

71. Assistance of Social Welfare Agency.—In deciding a guardianship petition, the Court may take the
assistance of a social welfare agency .for the scrutiny of the petition.

The Court may also ask such an agency for its report thereon.

72. Fees.—The Court may prescribed fees to be paid to the said agency for its work.

73. Application to be accompanied by Home Study Report.—Every application for guardianship when it is by a
person other than the natural parent or natural guardian of the child will be accompanied by a Home Study Report
of the persons asking for such guardianship and his/her spouse, if any, prepared by an approved family welfare
agency or a suitably trained social worker. A list of such agencies and/or persons shall be prepared by the Principal
Judge and Principal Counsellor In consultation with the High Court.

74. Home Study Report in applications by foreigners.—When the petition for guardianship so filed by a
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

foreigner the Court may accept a Home Study Report prepared by a recognised family welfare agency of the
country where the foreigner resides.

75. Contents.—Every petition for guardianship shall be accompanied by—

(i) Two recommendations from respectable members of the community;
(ii) A Salary Certificate or statement relating to the annual Income of the petitioner and his/her financial
position;
(iii) A Health Certificate of the petitioner and his/her spouse signed by a medical practitioner as also a medical
report regarding sterility, if any, of the petitioner and/or the spouse;
(iv) A Health Certificate of the child proposed to be taken in guardianship signed by a medical practitioner;
(v) A Child Study Report of the child proposed to be taken in guardianship together with a photograph of the
child. Such report shall be in Form No. 3 prescribed in the appendix when the child is institutionalised or
Court committed;
(vi) A declaration from the proposed guardian and his/her spouses, if any, expressing their willingness to take
the child in guardianship.

76. Applications by foreigners.—When the petitioner applying for guardianship is a foreigner, the petition will also
be accompanied by—
(i) Permission from the country where the petitioner resides, for the child to enter the country;
(ii) An undertaking by a recognised family welfare agency of the country concerned to supervise the child in
the home of the petitioner until the child is legally adopted.

77. No application on behalf of a foreigner for being appointed guardian of the person of an Indian minor under the
Guardians and Wards Act, 1890, shall be entertained unless recommended in that regard by a Child Welfare
Agency licensed/recognised for the time being by the Government of the Country of which the applicant is a citizen.

78. Only a Child Welfare Agency recognised for the time being by the Government of India can sponsor submission
of an application for declaring a foreigner to be the guardian of an Indian child to the Court competent to deal with it
and unless so sponsored, such an application shall not be entertained.

79. (1) in dealing with such an application the Court may take the assistance of (1) the West Bengal Unit of the
Indian Council for Child Welfare, 52 Ramesh Mitra Road, Calcutta-700025, (2) Indian Council of Social Welfare,
175, Dada Bhai Noroji Marg, Bombay-400001, (3) The Indian Society for Sponsorship and Adoption, 1, Palace
Courts, 1 Kyd Street, Calcutta-700016, if such an application had not been sponsored by any of these agencies.

(2) Notice of an application for declaring a foreigner to be the guardian of an Indian child shall be given to the Indian
Council of Social Welfare or the Indian Council of Child Welfare or any of its Stale Units for scrutiny of application
with a view to ensuring that it will be for the welfare of the child to be given to the foreigner whose application for
guardianship is under consideration.

(3) In disposing of such an application the Court may make such enquiries as it may deem fit and proper for being
satisfied that such appointment of a foreigner as guardian will be conducive to the interest and welfare of the child;
no order for such appointment shall be made nor shall the Court permit the child to be removed to the custody of
the applicant for eventual adoption unless the Court is so satisfied and unless the applicant makes provision by way
of execution of a bond or otherwise to enable the child to be repatriated to India should it become necessary to do
so for any reason. In every such enquiry, the Court shall ascertain the wishes of the child.

(3a) In every case where such an application is made, the applicant shall deposit with the Court a sum of Rs. 300
towards the costs of scrutiny as enjoined by these rules and all costs in that regard shall first be met out of the said
sum, subject to any further direction by the Court for the balance.

(4) Every appointment so made shall be subject to a condition to be incorporated in the order that the foreigner shall
submit to the Court as also to the recognised Indian Agency sponsoring the application for guardianship the full
details of the normal residence of the child in the foreign country where the child is to be taken and progress report
of the child alongwith all information regarding change in the residence of the child, if any, and a recent photograph
quarterly during the first two years and half yearly for the next five years.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(5) The order appointing a foreigner to be the guardian of an Indian child shall carry, attached to it, a photograph of
the child duly authenticated by an officer authorised by the Court in that behalf and another copy of such
photograph shall be kept on the record.

(6) If the Biological parents of the child are known they may be properly assisted by the Social or Chief Welfare
Agency /Home, etc., in talking a decision about the relinquishing of the child for adoption. But no notice of such an
application for declaring a foreigner to be the guardian of an Indian child should be given to the child’s Biological
parents nor should it be published in any newspaper.

(7) The proceedings on the application for declaring a foreigner to be the guardian of an Indian child should be held
in camera and as soon as an order is made on the application all papers and documents relating to the proceedings
should be sealed.

(8) When an order appointing a foreigner as guardian of an Indian child is made by a Court an intimation shall be
given by the Court to the Ministry of Social Welfare, Government of India as also to the Relief and Welfare
Department, Welfare Branch, to the Government of West Bengal under intimation to the Judicial Department of the
Government.

(9) If due to disruption or failure of adoption in the foreign country, any alternative placement of the child is
considered necessary by the recognised foreign agency, the said fact should forthwith be reported to the Court
making the appointment and necessary permission should be taken from the said Court for such placement. Every
such application shall be procured through the Indian agency which had sponsored the original appointment and
notice thereof shall be given to the Ministry of Social Welfare, Government of India and also to the Relief and
Welfare Department Branch to the Government of West Bengal under intimation to the Judicial Department of the
Government.

80. The Court shall send quarterly reports in respect of Indian children taken abroad by the foreign national under
the Guardians and Wards Act, 1890, to the Secretary, Ministry of Social Welfare, Government of India and the
Relief and Welfare Department of the Stale Government. The report shall be in respect of such quarter ending with
31st March, 30th June, 30th September and 31st December. The report shall be in the proforma detailed below:

(Report for the quarter ending......)

1. Name of the State.
2. Number of children given in guardianship to foreign nationals during the quarter under report.
3. Country-wise break-up of the number of children in column (2).
4. Number of children permitted to be taken abroad by foreign nationals as guardians during the quarter
under report.
5. Country-wise break-up of the children in column (4).
6. Number of applications of foreign nationals for guardianship of Indian children, which were rejected during
the quarter under report.
7. Number of applications of foreign nationals for guardianship of Indian children which were pending final
disposal at the end of the quarter.
8. Remarks or comments, if any.

(3) THE CHHATTISGARH FAMILY COURTS RULES, 20071

In exercise of the powers conferred by section 23 of the Family Courts Act, 1984 [No. 66 of 1984), the State
Government of Chhattisgarh after consultation with the High Court of Chhattisgarh makes following rules, namely.—

1. Short title, extent and commencement.—(i) These rules may be called “The Chhattisgarh Family Courts Rules,
2007”.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(ii) They shall extend to whole of the State of Chhattisgarh.

(iii) They shall come into force with effect from the date of publication in the “Chhattisgarh Gazette”.

2. Definitions.—In these rules unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984 (No. 66 of 1984);
(b) “Family Court” means the Court established under section 3 of the said Act;
(c) “Government” means the Government of Chhattisgarh;
(d) “High Court” means the High Court of Chhattisgarh;
(e) “Judge” means the Judge appointed under sub-section (1) of section 4 of the Act and includes a Principal
Judge or Additional Principal Judge of the Family Court;
(f) All other words and expressions not defined in these rules shall have the same meaning as assigned to
them in the said Act.

3. Service Conditions of the Judge of Family Court.—(1) The term of the office of the Judge of Family Court
shall be the term for which he is recommended for appointment by High Court or till his retirement from service
under the relevant service rules, whichever is earlier.

(2) The Judge of a Family Court shall be under the administrative and disciplinary control of the High Court.

(3) A Judge of a Family Court shall be entitled to pay and allowances including travelling allowances, dearness
allowance as admissible to a District Judge, who is drawing Super Time pay scale.

(4) A service member of the Chhattisgarh Judicial Service appointed as a Judge or Principal Judge or Additional
Principal Judge of a Court being superannuated on attaining the age of superannuation during his tenure as such
Judge shall receive pay and allowances which he last drawn minus pension, if any.

4. Association of Social Welfare Agencies.—(1) Every Principal Judge of the Family Court shall for the
association with it, in consultation with the High Court and State Government maintain in respect of its area a
register or registers and records therein the name of.—
(i) institutions and organizations engaged in Social Welfare, Family, Matrimonial and allied matters and the
representatives thereof;
(ii) persons professionally engaged in promoting the welfare of families; and
(iii) persons working in the field of social welfare.

(2) to sub-rule (1), the Principal Judge of the Family Court may record such names after obtaining the written
consent of the institution, organization or person, as the case may be, on its own motion or on its/his application.

5. Counselling Centre.—(1) There shall be a Counselling Centre attached to the Family Court to be known as
Family Court Counselling Centre.

(2) The Counselling Centre shall be located in the Family Court premises or at such other places as the High Court
may direct.

6. Appointment of Counsellors.—The Counsellors shall be appointed by the State Government from the Panel of
Counsellors prepared by the Principal Judge of the Family Court and approved by the High Court:

Provided that no Counsellor shall continue after he attains the age of 65 years.

7. Number of Counsellors.—(1) The number and categories of Counsellor in each Counselling Centre shell be
such as may be determined by the Government in consultation with the High Court from time-to-time.

(2) Where more than one Counsellors are appointed in Counselling Center, one of them may be designated as
Principal Counsellor by the High Court.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

8. Qualification for Counsellor.—(1) Any person having a degree of a recognized University preferably with Social
Science or Psychology as one of the subjects, or minimum experience of two years in social work, child psychiatry
or family Counselling shall be eligible for appointment as a Counsellor:

Provided that the minimum academic qualification/minimum experience may be relaxed in exceptional
circumstances by the State Government in consultation with the High Court:

Provided that preference may be given to women having equal requisite qualifications:

Provided further that a person shall not be eligible for appointment on the post of Counsellor unless he has attained
the age of 35 years and is below 60 years of age.

(2) A candidate who—

(a) has been a Judge; or
(b) has experience of Counselling in family matters shell other things being equal, be given preference in the
matter of appointment.

9. Payment of Honorarium/fee to Counsellors.—(1) The Honorarium or fee admissible to persons employed as

Counsellors shall be such as may be determined by the State Government from time-to-time.

(2) The Counsellors shell be entitled to the payment of Honorarium or fee at the minimum rate of Rs. 200 (Rupees
Two hundred) per case per sitting for reconciliation. The number of sittings restricted for each case should not be
more than four. In any case, the total Honorarium or fee of a Counsellor shall not exceed Rs. 600 (Rupees Six
hundred) per day.

10. Function of Counsellor.—(1) The Counsellor, entrusted with any petition shall—
(i) attend the Court as and when required by the Judge of the Family Court;
(ii) aid and advise the parties regarding settlement of the subject-matter of dispute or any other part thereof;
(iii) help the parties in reconciliation;
(iv) submit report or interim report, as the case may be fixed by the Court;
(v) perform such other functions as may be assigned to him by the family court from time-to-time.

(2) In performing his functions under sub-rule (1) the Counsellor shall be guided by such general or special
directions as may be given by the Family Court from time-to-time.

11. Conditions of service of employees of a Family Court.—(1) The qualifications, procedure for recruitment of
a Family Court shall be as of the employees of similar category in the Courts under control of District Judge and the
rules relating thereto shall, mutatis mutandis, apply.

(2) Principal Judge of the concerned Family Court shall be the appointing authority and also head of the office.

12 Assistance of medical experts, welfare experts.—(1) Where the Family Court decides to secure the services
of any expert or other person referred to in section 12 of the Act, the Court shall indicate the exact point or points on
which and the manner in which the service required is to be rendered.

(2) The expert or other person referred to in sub-rule (1) shall render the service and submit its report within such
time as may be indicated in the order of the Family Court or within such expended time as may be given by the
Court.

(3) The Family Court shall permit the parties to file objections against such report.

(4) The Court shall consider the report in deciding the dispute but shall not be bound by it.

13. Travelling and other expenses payable to medical and other experts.—If in the opinion of the Family Court,
the assistance of an expert or other person referred to in section 12 of the Act is necessary, but the party seeking
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

such assistance does not have means to pay his fees and travelling and other expenses, the court may, suo moto
or on the application of the party, direct the payment of such fees and expenses, out of the revenue of the State as
specified below.—

(a) If the expert is Government Servant. Travelling expenses at the rate as admissible to him in the
service of the State Government

(b) If the expert is not a Government Servant Travelling expenses at the rates as admissible to Class I
Officer of the State Government plus Rs. 500 (Rupees Five
hundred) as fees per day.

14. AmicusCuriae.—(1) The Family Court shall maintain a panel of legal experts including legal practitioners,
willing to be appointed as amicus curiae.

(2) Where it appears to the Family Court that the assistance of a legal expert as amicus curiae is necessary in the
interest of justice, the Court may appoint a legal expert from the said panel.

(3) The amicus curiae, appointed under sub-rule (2) may be paid by the Family Court out of revenues of the State,
fees and expenses at the rates of Rupees Five hundred per case or proceedings or as fixed by the Family Court not
exceeding Rs. 5000 (Rupees Five thousand).

(4) The Family Court may remove the amicus curiae at any time, if it deems necessary in the interest of justice.

15. Termination of appointment of Counsellor.—The appointment of a counsellor may be terminated by the

State Government at any time before the expiry of his term on the recommendation of the Judge of the Family
Court.

(4) THE GOA FAMILY COURTS RULES, 1988

In exercise of the powers conferred by clauses (b), (c), (d), and (e) of sub-section (2) and sub-section (1) of section
23 read with section 5 and 6 of the Family Courts Act, 1984 (Central Act 66 of 1984), the Government of Goa, after
consultation with the High Court, hereby makes the following rules, namely.—

1. Short title, commencement and applications.—These rules may be called the Goo Family Courts Rules,
1988.
(i) They shall come into force at once.
(ii) They shall apply to the Family Courts established in the State of Goa under section 3 of the Family Courts
Act, 1984.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984 (Central Act 66 of 1984);
(b) “Centre” means a Counselling Centre;
(c) “Court” means the Family Court established under section 3 of the Act;
(d) “Principal Counsellor” means the Principal Counsellor appointed by the High Court; and includes
Counsellor or Counsellors, as the case may be, where Principal Counsellor is not appointed.

3. Party entitled to legal advice.—A party will be entitled to take legal advice at any stage of the proceedings
either before the Counsellor or before the Court. A parry in indigent circumstances will be entitled to free legal aid
and advice.

4. Panel of lawyers for free legal advice.—The Court shall maintain a panel of lawyers willing to render free legal
aid and advice. A party entitled to free legal aid and advice will be entitled to select any of the lawyers from the said
panel provided the lawyer is available and willing to accept the case.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

5. Conditions of engagement.—The terms and conditions of engagement of such a lawyer and the remuneration,
if any, to be paid to him from the State Treasury shall be as laid down in the Goa State Legal Aid and Advice
Scheme, 1981.

6. Circumstances entitling a party to legal aid.—The circumstances under which such legal aid will be made
available to a party shall be as laid down by the High Court.

7. Legal Experts as “ AmicusCuriae ”.—If the Court considers it necessary in the interest of justice, it may seek
the assistance of legal expert as amicus curias. For that purpose, the Court shall prepare a list of legal experts who
are willing to assist the Court as amicus curiae and such legal experts shall be paid fees and expenses out of the
revenues of the State Government as per the scale of fees and expenses fixed by the Government, from time to
time, by an order made in this behalf.

8. Counselling Centre.—There shall be attached to the Family Court a Centre to be known as “The Counselling
Centre of the Family Court at Panaji.”

9. Composition.—Each such centre may have a Principal Counsellor and shall have as many Counsellors as may
be determined by the High Court.

10. Different units of Counselling Centre.—The Counselling Centre may be divided into different units and may
be located in the Court premises and/or in such other place or places as the High Court may direct.

11. Appointment of Counsellors.—Principal Counsellor and other Counsellors attached to the Counselling Centre
shall be appointed by the High Court in consultation with one or more professionally qualified experts in family and
child welfare, preferably working with a recognised institution of social science or social work.

12. Qualifications.—Persons having a degree in social work with a minimum experience of 2 years in family
counselling shall be eligible for appointment as Counsellors.

13. Counsellor to fix time and date for counselling.—The Counsellor appointed to advise the parties shall fix the
time and date of appointment. The parties shall be bound to attend the Counsellor on the date and at the time so
fixed.

14. Failure to attend counselling.—If one of the parties fails to attend the Counsellor on the date and at the time
so fixed, the Counsellor may fix another date and time and inform the absent party accordingly by registered post. If
the said party does not attend the Counselling Centre on such adjourned dale, the Counsellor may make a report to
the Court stating that one or both the parties have failed to attend Counselling Centre. On such report being made,
the Court may proceed with the matter without prejudice to other powers of the Court to take action against a
defaulting party.

15. Functions of a Counsellor.—Counsellor entrusted with any petition shall assist and advice the parties
regarding the settlement of the subject-matter of dispute between the parties or any part thereof. The Counsellor
shall also help the parties in arriving at reconciliation.

16. Home Visits—The Counsellor in the discharge of his duties shall be entitled to pay home visits to the homes of
any of the parties.

17. Interviews.—The Counsellor in the discharge of his duties shall be entitled to interview relatives, friends and
acquaintances of parties or any of them.

18. Information from employer.—The Counsellor in the discharge of his duties may seek information as he may
deem fit from the employer of any of the parties.

19. Reference to experts.—The Counsellor may refer the parties to an expert in any other area such as medicine
or psychiatry.

20. Panel of experts.—The Principal Judge of the Family Court in consultation with the Principal Counsellor shall
prepare a panel of medical and other experts and such experts shall be paid fees and expenses (including travelling
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

expenses) out of the revenues of the State Government, as per the scale of fees and expenses fixed by the
Government, from time to time, by an order made in this behalf.

21. List of Institutions, Agencies, etc.—The Principal Judge in consultation with the Principal Counsellor shall
also prepare a list of institutions, organisations or agencies working in the area of family welfare, child guidance,
employment or in any other area that he may deem fit, in order to enable a Counsellor or parties to obtain the
assistance of such an institution, organisation or agency and may also lay down the manner and the conditions for
association of such institutions, organisations or agencies with a Family Court.

22. Assistance of other organisations, etc.—The Counsellor may take the assistance of such an organisation,
institution or agency in the discharge of his duties.

23. Confidentiality of information.—(1) Information gathered by the Counsellor, any statement made before the
Counsellor or any notes or report prepared by the Counsellor shall be treated as confidential. The Counsellor shall
not be called upon to disclose this information, statements, notes or report to any Court except with the consent of
both the parties.

(2) Such notes or report or statements or any material lying with the Counsellor shall be kept in sealed packets by
the Counsellor and shall not form a part of evidence before the Court. The same may, however, be used for the
purposes of research of education with the permission of the Principal Judge on condition that the identities of the
parties involved shall be kept concealed.

24. Counsellor not to give evidence.—The Counsellor shall not be asked to give evidence in any Court in respect
of this information, statements, notes or report:

Provided that the Counsellor may submit to the Court a report relating to home environment of the parties
concerned, their personalities and their relationship with their child or children in order to assist the Court in
deciding the question of custody or guardianship of any child or children of the marriage:

Provided further that, the Counsellor may also submit to the Court a report relating to home environment, income or
standard of living of the party or parties concerned in order to assist the Court in determining the amount of
maintenance and/or alimony to be granted to one of the parties.

25. Report from the Counsellor.—The Court may also request the Counsellor to submit to it a report on any other
subject in order to assist the Court in adjudicating upon the matter before it or any part thereof.

26. Supply of Copies.—A copy of the report submitted under rules 24 and 25 may be supplied to the parties on
such request being made by the parties.

27. Parties right to make submissions.—The parties shall be entitled to make their submissions on the report.

28. Counsellor not to be cross-examined.—The Counsellor shall not be called upon to give evidence and shall
not be cross-examined in any Court in respect of the report so made.

29. Submission of memorandum.—Save as provided in these rules, the Counsellor shall submit a brief
memorandum to the Court informing the Court of the outcome of the proceedings before him.

30. Settlement before Counsellor.—When the parties arrive at a settlement before the Counsellor relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
counter-signed by the Counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court
considers the terms of the settlement unconscionable or unlawful or contrary to public policy.

31. Counsellors right to supervise custody of children.—The Counsellor shall be entitled to supervise the
placement of children in the custody of party and shall be entitled to pay surprise visits to the home where the child
resides. In the event of the Counsellor coming to conclusion that any alteration is required in the arrangement
relating to custody of a child or children, the Counsellor shall make a report to the Court in that connection.
Thereupon the Court may, after giving notice to the parties to appear before it, pass such orders in that connection
as the Court may deem fit.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

32. Counsellors right to supervise reconciliation.—The Counsellor shall also be entitled to supervise, guide and
assist the reconciled couples, even if the matter is no longer pending in Court.

33. Counsellor to do pre-litigation counselling.—The Counsellor shall also do pre-litigation counselling on

payment of such fees to them as the State Government may fix.

34. Co-habitation in the course of reconciliation proceedings.—Co-habitation between the parties in the course
of conciliation proceedings before the Counsellor or Court shall not be deemed to be a condonation of the
matrimonial offence.

Guardianship

35. Applications for Guardianship.—All applications for guardianship other than applications over which the High
Court has jurisdiction shall be filed before the Family Courts.

36. Assistance of Social Welfare Agency.—In deciding a guardianship petition, the Court may take the
assistance of a social welfare agency or agencies for the scrutiny of the petition. The Court may also ask such an
agency for its report thereon.

37. Fees.—The Court may prescribe fees to be paid to the said agency for its work. (Published in Goa Government
Gazette dated 12th May, 1988, Series 1 to 6).

(5) THE FAMILY COURTS (JHARKHAND HIGH COURT) RULES, 2004

Noti. No. 1.A./Court Gathan 102/2003-2060/J, dated the 20th July 2004, No. 6543, dated the 15th July,
2004.1—In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (Central Act No. 66 of
1984), and all enabling provisions in that behalf, the High Court of Jharkhand hereby make and prescribe the
following Rules to regulate the proceedings for the Family Courts in the State of Jharkhand.

In exercise of the powers conferred by section 21 of the Family Courts Ad, 1984, the High Court of Jharkhand are
pleased to prescribe the following Rules for Family Courts in the State of Jharkhand:

1. Short title.—(a) These rules may be called the Family Courts Jharkhand High Court) Rules, 2004.

(b) Commencement.—These rules shall come into force from 15th August, 2004.

(c) Application.—These rules shall apply to the Family Courts established in the State of Jharkhand under section
3 of the Family Court Act, 1984.

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984;
(b) “Centre” means a counseling centre;
(c) “Counsellor” means a person referred to in section 6 of the Act;
(d) “Court” means the Family Court established under section 3 of the Act;
(e) “High Court” means the High Court of Jharkhand;
(f) “Institution” means any institution or organisation engaged in social welfare;
(g) “Petition” shall include an application under Chapter IX of the Criminal Procedure Code unless the subject-
matter or context requires otherwise;
(h) All other words and expressions used but not defined in these rules and defined in the Act, or in the Code
of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, shall have the meaning respectively
assigned to them in the Act, or, as the case may be, in the Code of Civil Procedure, 1908 or in the Code of
Criminal Procedure, 1973.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

3. Working hours.—(i) The office of the Family Court shall be open daily except authorised holidays for transaction
of office work between 10.00 a.m. and 5,00 p.m,

(ii) The Judges of the Family Court shall ordinarily sit in the Court between 1030 a.m. and 4.30 p.m. on working
days of the Family Court with recess between 1.00 p.m. and 1.30 p.m.

(iii) The Judges may, for expedience, hold proceedings of the Court beyond the working hours as prescribed in sub-
rule (ii) above, and even on holidays:

Provided no such proceedings shall be held under sub-rule (iii) except with the consent of the parties to the
proceeding.

(iv) The Family Court shall hold its sitting in open or in camera as determined by it in each case, but shall hold the
proceedings in camera if either party so desires.

(v) No act of the Family Court shall be invalid by reason of holding or continuing its sitting at anyplace of its choice
or on any holiday or outside normal working hours, when such sitting is informed to the parties in advance.

4. Place of sitting.—The Judge of the Family Court may hold sitting at places other than the ordinary place of
sitting in consultation with the parties to the proceedings; the provision of the Legal Aid Scheme may be invoked in
appropriate cases in the proceedings under the Act.

Institution of proceedings:
(a) All proceedings instituted before a Family Court shall be by way of an application as per form No. I
appended to these rules which should be duly verified by the petitioner. Interlocutory application in the
proceeding to be instituted or already instituted shall be filed in form No. 2 after being duly verified by the
applicant. The petition in form No. I or the interlocutory application in form No. 2 can be in any language
falling in Schedule VIII to the Constitution.
(b) There shall be no Court fee or any other fee in respect of any petition or any interlocutory application filed
before the Family Court.
(c) In respect of application under section 125 of Cr PC or other application under Chapter IX of the Criminal
Procedure Code the provision of that Code will apply.
(d) The application may be filed before Family Court as permitted under any law which also includes
provisions in the following laws viz.:
(i) Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974).
(ii) Hindu Marriage Act, 1955 (25 of 1955).
(iii) Maintenance under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
(iv) Guardianship of the person or custody of or access to any minor under the Hindu Minority and
Guardianship Act, 1956 (32 of 1956).
(v) Dowry Prohibition Act, 1961 (28 of 1961) for an order for injunction in circumstances arising out of
marital relationship,
(vi) Hindu Marriage (Validation of Proceedings) Act, 1960 (19 of 1960).
(vii) Personal law applicable to Muslims in including:
(a) Muslim Personal Law (Shariat) Application Act, 1937 (26 of 1937).
(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939).
(c) Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986).
(viii) Parsi Marriage and Divorce Act, 1936 (3 of 1936) which can be instituted or taken before the Parsi
District Matrimonial Courts constituted under sections 18 and 20 of the said Act.
(ix) Indian Christian Marriage Act, 1872 (15 of 1872).
(x) Indian Divorce Act, 1945.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(xi) Special Marriage Act, 1954 (43 of 1954).

(xii) Child Marriage Restraint Act, 1929 (19 of 1929).
(xiii) Anand Marriage Act, 1909 (7 of 1909).
(xiv) Arya Marriage Validation Act, 1937 (19 of 1937).
(xv) Foreign Marriage Act, 1969 (33 of 1969).
(xvi) Suits or proceedings relating to Part B States Marriages Validating Act, 1952 (1 of 1952).
(xvii) Guardians and Wards Act, 1890 (8 of 1890).

6. Filing of petition.—A petition or any other application shall be filed with two copies signed by the parties
alongwith as many copies to be sent to all the respondents by an officer designated for this purpose. One copy of
such petition or application shall be forwarded by the designated officer of the Family Court to the Counsellor
forthwith.

7. Notice to respondent.—Notice of the proceeding including interlocutory application shall be issued in form No.3
appended to these rules alongwith a copy of the petition of the application as the case may be in respect of matter
under Chapter IX of the Criminal Procedure Code the summons to appear and answer shall be in Form No. 4.

8. Name and address of the party or of the representative lo be stated in every process.—The name and
address of a party or of the representative appearing for a party shall he stated in every notice, summons, witness
summons, interim application, warrant and every process of the Court issued at the instance of such party or
representative.

9. Notice, Summons, etc., how attested and signed.—All notices, Summons, Rules, Orders, Warrants and other
mandatory processes shall be sealed with the seal of the Court and shall be signed by the designated officer of the
Court.

10. Returnable date of notice, summons.—Unless otherwise ordered. the notice, summons shall be made
returnable three weeks after the date of the filling of the petition, if the respondent resides within the local limits of
the Court and five weeks after the date of the filling of the petition, if the respondent resides outside the said limits.

11. Mode of service of notice, summons.—(a) The notice, summons shall be served in the manner prescribed in
the Code of Civil Procedure save and except in proceedings under Chapter IX of the Criminal Procedure Code
where the provisions of the Code will apply. Alongwith the notice, summons a copy of the petition and exhibit
thereto shall be sent.

(b) in addition to the normal process of service by the Court, the applicant will be at liberty to serve upon the
respondent, the notices, summons of the Court alongwith copy of the petition and exhibits either through person or
through other recognisable mode of service including registered post and shall file affidavit of service upon the
respondent.

12. Proof of service of summons.—It has to be shown by affidavit of applicant or other evidence that the notices,
summons were served upon the respondents.

13. Substituted service.—In case of failure to serve by normal process, the Court on an oral/written application of
the applicant may direct for serving upon the respondents by substituted mode i.e., through pasting, publication in
the newspaper, etc., and applicant shall file affidavit stating as to the mode adopted for service of summons.

14. Copy of petition to be furnished to the respondent.—Any respondent who asks for the copy on the ground
that he has not received the copy of the petition or that he has not received complete copy, the applicant shall
furnish the complete copy with all exhibits to the respondents.

15. The provisions under Order I of Civil Procedure Code for addition of a necessary party or a proper party shall be
applicable to a proceeding before the Family Court.

16. Proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be
allowed to appear only as amicus curiae, if the Court finds it necessary in the interest of justice.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

17. Directions on the returnable date.—On the returnable date of the notice, summons, the petition shall be
placed for directions before a Judge of the Family Court. On that day, the designated Counsellor shall attend the
Court of the Judge giving directions. The Judge shall, in consultation with the Counsellor, direct the parties to attend
on a specified date by which Counsellor shall file a memorandum setting out the outcome of the proceeding before
him. On that day the Court will pass further order and directions as it deems fit and proper.

18. Role of the Counsellor.—The Counsellor appointed to counsel the parties shall fix time and date of
appointment. The parties shall be bound to attend the Counsellor on the date and at the time so fixed if either of the
parties fails to attend the Counsellor on the date and time so fixed, the Counsellor may fix another date and shall
communicated the same to the absentee party by registered post. In case of default by either of the parties on the
adjourned date, the Counsellor shall submit a report to the Court and on receipt of such report, the Court may
proceed with the matter without prejudice to other powers of the Court to take action against the defaulting parties.

The Counsellor entrusted with any petition on appearance of the parties before her/him shall assist and advise the
parties regarding the settlement of the subject-matter of dispute and shall endeavour to help the parties in arriving
at conciliation.

The Counsellor may in discharge of him/his duties, visit the home of either of the parties and interview the relatives,
friends, and acquaintances of either of the parties.

The Counsellor in discharge of him/his duties may also seek such information as she/he deems fit from the
employer of either of the parties and such requisition for information shall be made through the Court.

The Counsellor may take the assistance of any organisation, institution or agency in discharge of her/his duties.

The Counsellor shall submit a report to the Court as and when called for to assist the Court in deciding the case in
hand. The report may, inter alia contain the following points:
(a) Living environment of the parties concerned.
(b) Personalities.
(c) Relationship.
(d) Income and standard of living.
(e) Educational status of the parties.
(f) Stains in society.
(g) Counsellors findings.

The Counsellor may also supervise the child/children if and when called upon by the Court.

19. Confidentiality of information.—Information gathered by the Counsellor or any statement made before the
Counsellor or any notes or report prepared by the Counsellor shall be treated as confidential and the Counsellor
shall not be called upon to disclose such information, statement, notes or report to any Court except with the
consent of both the parties.

20. Efforts for arriving at settlement.—(1) Every Family Court shall maintain separate lists of:
(a) Institutions and organisations engaged in social welfare together with names and addresses of
representatives of each institutions or organisations.
(b) Person professionally engaged, in promoting the welfare of the Family with their addresses.
(c) Persons working in the field of social welfare with their addresses.

Report from institution, organisation etc. (1) A Family Court may call for report as regards efforts made or to be
made by the institution, organisation or persons referred to in section 5 of the Act:

Provided that where efforts for amicable settlement are continuing or are deferred, the Family Court may require the
institution, organisation or person to submit before it an interim report.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

21. When the parties arrive at a settlement before the Counsellor relating to the dispute or any part thereof such
settlement shall be reduced into writing and shall be signed by the parties and counter-signed by the Counsellor.

Hearing of Petitions in Court

22. Adjournment by the Court.—The petition so fixed shall not be adjourned by the Court unless there are
circumstances justifying such adjournment and to meet the ends of justice. The Court shall record its reasons for
adjourning a matter.

23. Memorandum of evidence.—The Court shall record only the substance of what the witness deposes and
prepare a memorandum accordingly which shall be read and explained to the witness and the memorandum of the
said substance recorded by the Court shall be signed by the witness and the Presiding Officer of the Court and
shall form part of the record. The evidence taken on affidavit, if any, shall also form part of the record of the Court.
The judgment shall contain a concise statement of the case, the point for determination the decision thereon and
the reasons for such decision.

24. The Court shall furnish to the parties to the proceedings before it a copy of the judgment certified to be a true
copy free of cost.

25. Appeal under section 19(1) of the Act shall be in the manner of appeals against the original decree or order in a
civil proceedings but there shall be no Court fee payable for the appeal.

26. The rules framed under the Guardians and Wards Act, 1890 by the Patna High Court and published in Bihar
Gazette-III dated the 27th May, 1931 and 8th September, 1933 shall be applicable in matter relating to Guardians
and Wards Act, 1890 to the extent they are not inconsistent with the provisions of the Act or the Rules framed
thereunder.

27. Application for Guardianship.—All petitions for guardianship other than applications over which the High
Court has jurisdiction, shall be filed before the Family Court.

28. Contents of the Application.—Every petition for guardianship when it is by a person other than the natural
parent or natural guardian of the child shall be accompanied by a Home Study Report of the person asking for such
guardianship and his/her spouse, if any, prepared by an approved association of social welfare agencies etc., or a
suitably trained social worker, from the list of agencies and/or persons for the purpose of their association with the
Court approved by the Government in the rule made under section 5 of the Act, in consultation with the High Court.

29. In case of a child placed in guardianship the Court may, at any time direct a Counsellor attached to the Court to
supervise the placement of the child and submit a report thereon to the Court in such manner as the Court may
deem fit.

30. A child study report of the child proposed to be taken in guardianship together with a photograph of the child
should also be filed in all petitions for guardianship, as required under rule 23 of the Rules framed under the
Guardian and Wards Act, 1890. Such report shall be in a particular Form prescribed by the Court when the child is
institutionalised (or Court committed). The report shall be counter-signed by the petitioner.

31. A proceeding before the Family Court shall. not become invalid by reason only of non-compliance with any of
the procedural requirement prescribed herein.

Interim Applications

32. Interim applications.—All interim applications to the Court shall be separately numbered as “Interim
Application No..........” In Petition No..........

33. Interim application while matter is pending before Counsellor.— An interim application may be made even
while the matter is pending before a Counsellor.

34. Report from the Counsellor.—The Court may ask the Counsellor to submit an interim report for the purposes
of such an application before deciding an interim application. The Family Court Rules, 2002 relating to report to be
submitted by Counsellor, shall mutatis mutandis apply to interim reports also.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

35. Officers.—The High Court may authorise and empower Judge of the Family Court, or if, there be more judges
than one in a Family Court the Principal Judge of such Court to appoint so many and such clerks and other
ministerial officers as may be necessary for the administration of justice and due execution of all powers and
authorities exercisable by a Family Court:

Provided that the appointments of officers and ministerial staff shall be subject to any rules or restriction as may be
prescribed or imposed under the Act.

36. The proceedings before the Court shall be heard and disposed of as expeditiously as possible, preferably within
3 months, and in achieving this objective the rules or procedure may not rigidly be adhered to.

37. Control of High Court.—Every Principal Judge, and Judge of Family Court shall be under administrative and
disciplinary control of the High Court.

38. Power of High Court to transfer Judges, officers etc., without prejudice to the administrative and disciplinary
control of the High Court under rule 12, such Court or a Judge thereof authorised under general or special order in
this behalf by such Court, may where it is considered necessary or expedient so to do, transfer any Principal Judge,
Additional Judge, Judges or any officer or ministerial official of one Family Court to another Family Court in this
State or retransfer such Principal Judge, Additional Judge, officer or ministerial official, as the case may be and
every such Principal Judge, Additional Judge or Judge, official or ministerial official shall comply.

39. Power of High Court to issue directions.—For carrying out the purposes of the Act and for ensuring the
uniformity of practice to be observed by Family Courts and for expeditious disposal, the High Court may from time
to time, supervise and inspect the Family Courts and issue directions/circulars etc., to the Family Courts.

40. Judge not to try a case in which he is interested.—No Judge shall hear or decide any case to which he is
party or in which he/she is personally interested.

41. The Family Courts may use such forms and containing such particulars as may be approved by the High Court.

42. Powers to call for information etc.—The High Court may require Family Courts to maintain such registers and
records and containing such particulars as may be approved by the High Court.

FORM NO.1

IN THE FAMILY COURT OF...........................

Petition No.....................................................................................................................................................

Between

Mrs./Mr...........................................................................................................................................................

W/o or S/o....................................................................................................................................................

Age .................................................................................................................................................................

Occupation......................................................................................................................................................

Present Address.............................................................................................................................................

Permanent Address /Residence..................................................................................................................

Petitioner

And

Mrs./Mr..........................................................................................................................................................
 Page 25 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

W/o or S/o....................................................................................................................................................

Age .................................................................................................................................................................

Occupation ....................................................................................................................................................

Present Address.............................................................................................................................................

Permanent Address/Residence...................................................................................................................

Respondent

Petition under section.......................................for......................................

The abovenamed petitioner respectfully submits as under:

1. That the petitioner and respondent are legally married........................&........................their marriage was
solemnized on........................at..............................................according to........................customs. After the
marriage both the petitioner and respondent had been living/lived together as husband and wife
at.......................Out of the wedlock the couple was blessed with the child
aged........................named........................another child aged.......................named........................
2. The petitioner submits that (give the grievance of the petitioner against the respondent with full particulars)
(a) ........................................................................
(b) ........................................................................
3. This petition is not presented in collusion with the respondent and there is no unnecessary or improper
delay in institution of these proceedings.
4. Cause of action for the petition arose on (date) when the marriage of the petitioner with respondent was
performed. It also arose on several occasions when the respondent behaved and committed...............
5. The petitioner and the respondent both last lived together at........................(or where the marriage took
place or where the respondent at the time of presentation of the petition resided) which is within the
territorial jurisdiction of this Hon’ble Court.

PRAYER

6. The petitioner therefore prays that this Court may be pleased to pass an order directing........................

Place:

Date:

Petitioner

Verification

I ................................. daughter/son of ........................ aged ........................ resident of ........................ do hereby

declare that the above facts stated in the petition are true and correct to the best of my knowledge information and
belief. Hence, verified on this the ...................................... day of month ........................20.........

Petitioner

FORM NO.2

IN THE FAMILY COURT OF........................

Interlocutory Application No ...........................................................................

 Page 26 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

In

Petition No....................................................................................................................................................

Between

Mrs./Mr..........................................................................................................................................................

W/o or S/o...................................................................................................................................................

Age ................................................................................................................................................................

Present Address............................................................................................................................................

Permanent Address/Residence.................................................................................................................

Petitioner

And

Mrs./Mr..........................................................................................................................................................

W/o or S/o....................................................................................................................................................

Age .................................................................................................................................................................

Occupation ....................................................................................................................................................

Present Address.............................................................................................................................................

Permanent Address/Residence...................................................................................................................

Respondent

Interlocutory Application under section.................................for...........

The abovenamed petitioner respectfully submits as under:

1. That the petitioner and respondent are legally married........................&.......................their marriage was
solemnized on........................at..............................................according to........................customs. After the
marriage both the petitioner and respondent had been living/lived together as husband and wife
at....................... Out of the wedlock the couple was blessed with the child
aged........................named........................another child aged ........................named........................
2. The petitioner submits that (give the grievance of the petitioner against the respondent with full particulars)
(a) ........................................................................
(b) ........................................................................

PRAYER

The petitioner therefore prays that this Court may be pleased to pass an order directing........................

Place:

Date:

Petitioner
 Page 27 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Verification

I......................................daughter/son of........................aged........................resident of ........................do hereby

declare that the above facts stated in the petition are true and correct to the best of my knowledge, information and
belief. Hence, verified on this the........................day of month ........................20.........

Petitioner

FORM NO.3

IN THE FAMILY COURT OF..................

Petition
No........................................................of........................................................................................................................
........................................................................................................

Petitioner

versus

........................................................................................................................................................................

Respondent

To

........................................................

Whereas the abovenamed petitioner has instituted a petition against you, as set out in the petition (annexed with
the petition & annexure)

And whereas the petition will be placed for directions on............................ day of............................

You are hereby summoned to appear before the Family Court to answer the petitioner’s claim on the
said............................day of............................at............................Oclock and;

Take notice that on the day before mentioned after hearing parties who appear directions will be given by the Judge
as to the date of hearing before a Counsellor of the Family Court and other matters concerning the petition and;

Take further notice that if you fail to appear before the judge on the day the petition may be ordered to be set down
on Board on the same day or any subsequent day as ‘undefended and you will be liable to have a decree or order
passed against you.

Witness........................Judge at............................aforesaid this.........................day of.................. 200....

Registrar

FORM NO.4

IN THE FAMILY COURT OF............................

Petition No.....................................................................................................................................................

Between

Mrs/Mr..........................................................................................................................................................

W/o or S/o................................................................................................................................................... .
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Age ................................................................................................................................................................

Occupation......................................................................................................................................................

Present Address.............................................................................................................................................

Permanent Address /Residence..................................................................................................................

Petitioner

And

Mrs./Mr..........................................................................................................................................................

W/o or S/o....................................................................................................................................................

Age .................................................................................................................................................................

Occupation ....................................................................................................................................................

Present Address.............................................................................................................................................

Permanent Address/Residence...................................................................................................................

Respondent

Petition for maintenance under section 125 of Criminal Procedure Code.

The abovenamed petitioner respectfully submits as under:

1. That the petitioner and respondent are legally married........................&........................their marriage was
solemnized on........................at..............................................according to........................customs. After the
marriage both the petitioner and respondent had been living/lived together as husband and wife
at........................Out of the wedlock the couple was blessed with the child
aged........................named........................another child aged ........................named........................
2. The petitioner submits that (give the grievance of the petitioner against the respondent with full particulars)
(a) ........................................................................
(b) ........................................................................
3. The petitioner has no resources/limited resources to maintain herself and her minor children. She is
presently dependent upon her parents, who have their own expenses and may not be in a position to
support the petitioner for long period.
4. That the petitioner on..............................called upon the respondent to provide money for maintenance for
herself and her minor children but as yet no amount towards maintenance has been received from the
respondent.
5. That the respondent is a person with means and has the following property, monthly income etc.
(a) ..............................
(b) ..............................
(c) ..............................
6. In the circumstances stated above there is no alternative for the petitioner and

her minor children but to approach this Court for maintenance.

PRAYER
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

The petitioner therefore prays that this Court may be pleased to pass an order directing the respondent to pay
Rs.................towards maintenance of the petitioner and Rs.................towards maintenance of the minor children

Place:

Date:

Petitioner

(6) THE KARNATAKA FAMILY COURTS RULES, 1987

No. L. 167 LCE 83, dated 21st May, 1987.—In exercise of the powers conferred by section 23 of the Family Courts
Act, 1984 (Central Act 66 of 1984) the Government of Karnataka, after consultation with the High Court of
Karnataka, hereby makes the following rules, namely:—

1. Short title and commencement.—(1) These rules may be called the Family Courts (Karnataka) Rules, 1987.

(2) They shall come into force at once.

2. Terms and conditions of service of the Judges of the Family Courts.—(1) A Judge of a Family Court shall
hold office for a term of five years from the dale he assumes office or until he attains the age of sixty-two years,
whichever is earlier.

(2) A Judge of a Family Court shall be entitled to the scale of pay and allowances, (including travelling and daily
allowance) and leave as admissible to a District Judge:

Provided that if he is in receipt of a pension in respect of any previous service under any Government, he shall be
entitled to the last pay drawn by him, less the pension and the pension equivalent of other pensionary benefits, if
any, drawn by him and in addition he shall be entitled to draw the allowances admissible to a District Judge:

Provided further that if a serving District Judge is appointed on deputation he shall be entitled to the pay and
allowances that would have been admissible to him but for this appointment and if he retires from service before the
expiry of his term, he shall, from the date of his retirement, be entitled to pay and allowances admissible under the
first proviso.

(3) Other conditions of service of a Judge of the Family Court shall be those applicable to Officers in the cadre of
District Judges.

(4) A Judge of the Family Court shall not be entitled to any pension for service as Judge of the Family Court:

Provided that, an officer of the State Government on deputation shall be entitled to court his service till the date of
his superannuation for the purpose of his pension as such officer.

3. Association of persons engaged in the field of Social Welfare.—(l)(a) The Family Court shall prepare in the
month of January each year a list of not less than ten persons engaged in the field of social welfare for association
with the Family Court and submit it to the High Court for approval:

Provided that if the Family Court is established in the middle of any year such list shall be submitted within one
month from the date of establishment of the Court.

(b) The list shall be valid till the approval of the next list by the High Court.

(2) The Family Court shall nominate any person or persons out of the list prepared under sub-rule (1) as counsellor
or counsellors to assist the Court in such manner as the Court directs.

(3) The Family Court shall nominate two persons out of the prepared under sub-rule (1) as Counsellors for a period
of three months to assist the Court in such manner as the Court directs.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(4) If for any reason a counsellor so nominated is unable to attend the Court, the Family Court may nominate
another Counsellor from out of the list prepared under sub-rule (1).

(5) Each such Counsellor shall be entitled to a sitting fee of rupees sixty per day.

4. Number and categories of officers and other employees of Family Court.—The number and categories of
officers and other employees of a Family Court shall be as specified in the Schedule appended to these rules.

5. Conditions of service of officers and other employees of the Family Court.—The salary, allowances and
other conditions of service of the officers and other employees of the Family Court referred to in rule 4 shall be
same as those applicable to employees of the Karnataka Subordinate Judicial Services holding similar posts.

6. Fees and expenses of Medical and other experts.—Medical and other experts and other persons referred to in
section 12 whose services are secured for assisting the Family Court shall be paid fee at the rate of one hundred
rupees per case and travelling and daily allowance at the rate admissible to group A Officers of the State Civil
Services.

7. Fees and expenses of legal practitioner appointed under section 13.—The legal practitioners appointed
under section 13 shall be entitled to payment of fees at the rate of rupees two hundred per case and expenses.

SCHEDULE

(See rule 4)

Each Family Court shall consist of the following category of posts, cadres and number of posts which shall carry the
scale of pay indicated against them.

SI. No. Name of the post No. of posts Scale of pay

PRINCIPAL JUDGES COURT

1. Sheristedars Two 1600-2990

2. First Dn. Assistants Two 1190-2200

3. Stenographer One 1190-2200 + Spl. Pay

4. Typist One 960-1760 + Spl Pay

5. Typists-Copyists Three 960-1760

6. Second Division Assistants Four 960-1760

7. Bailiffs Two 960-1760

8. Attender One 810-1310

9. Jamadar One 810-1310

10. Process Servers Four 810-1310

11. Peons Three 780-1040

12. Sweeper-cum-Watchman One 780-1040

ADDITIONAL PRINCIPAL
JUDGE’S COURT

1. First Dn. Assistants One 1190-2200

2. Stenographer One 1190-2200 + Spl. Pay

 Page 31 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

SI. No. Name of the post No. of posts Scale of pay

3. Typist One 960-1760 + Spl. Pay

4. Jamadar One 810-1310

5. Peons Two 780-1040

Note.—The above posts shall be filled by deputation of officers holding equivalent posts in the State Service Cadre
in respect of Ministerial and other posts in the Subordinate Courts or the High Court.

(7) THE KARNATAKA FAMILY COURTS (PROCEDURE) RULES, 1987

Notification No. LCA-1118/1987, dated 9th December, 1987.—In exercise of the powers conferred by section 21
of the Family Courts Act, 1984 (Central Act 66 of 1984) the High Court of Karnataka, promulgate and issues the
following rules namely:—

1. Short title and commencement.—(a) These Rules may be called the Karnataka Family Courts (Procedure)
Rules, 1987.

(b) They shall come into force at once.

2. Definitions.—In the Rules, unless the context otherwise requires—

(a) “Act” means the Family Courts Act, 1984.
(b) “High Court” means, the High Court of Karnataka.
(c) “Court” means, Family Court established under section 3 of the Family Court Act, 1984.

3. Place of sittings of the Court.—(1) The Court shall ordinarily hold its sittings at the place where it is located.

(2) The Court may also hold its sittings at such place within its limits of territorial jurisdiction, if it considers
necessary or expedient to do so.

4. Sitting hours of the Court and office.—(1) The sittings hours of the Court shall ordinarily be from 11.00 a.m. to
2.00 p.m. and from 3.00 p.m. to 5.00 p.m.

(2) The working hours of the Office of the Court shall be from 10.30 a.m. to 5.30 p.m.

5. Dress of the Judges.—(1) The Judges, if a male, shall wear a close-collared black coat, or an open collared
black coat, with white shirt and black tie and;

(2) The Judge, if a female, shall wear a black coat over a white saree or any other white dress.

6. Holidays and Vacation.—(1) The Court shall be closed on such days as may be notified by the State
Government as public holidays.

(2) The Court shall have three vacations in each year, namely, summer, Dussehra and winter as fixed by the High
Court for Civil Courts in the State.

(3)(a) Notwithstanding anything contained in these Rules, Act and in the Code of the Civil Procedure, 1908 for
hearing all matters, which require to be immediately or promptly dealt with during any vacation, the High Court may
by notification designate any one of the Judges of the Family Court as the Vacation Judge and such Judge during
such vacation or part thereof, shall exercise all powers conferred on the Judge of the Family Court by the Act or any
other law for the time being in force.

(b) The High Court may also regulate by Special or General Order work to be discharged by the Vacation Judge.

(4) Notwithstanding the designation of the Vacation Judge under sub-section (2), the Family Court shall, during the
 Page 32 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

period of vacation be deemed to be closed for the purposes of section 4 of the Limitation Act, 1963 (Central Act 36
of 1963).

7. Reconciliation.—(1) The Court shall make every effort for bringing about reconciliation or settlement between
the parties in the first instance in every case where it is possible to do so consistent with the nature and
circumstances of the case in such manner as deemed fit, with the help of counsellors nominated by the Court.

8. Confidential Information.—Information gathered by the Counsellor in the course of attempts for reconciliation
shall be treated as confidential. The Counsellor shall not disclose to others or be compelled to disclose such
information.

9. Application of other Rules.—The Court shall as far as may he and with necessary modification follow the
provisions of Karnataka Civil Rules of Practice and Karnataka Criminal Rules of Practice.

By Order of the High Court

.........................

Registrar

(8)1THE FAMILY COURTS (KERALA) RULES, 1989

S.R.O. No. 84/89.—In exercise of the powers conferred by section 23 of the Family Courts Act, 1984 (Central Act
66 of 1984) and in consultation with the High Court of Kerala, the Government of Kerala hereby makes the following
rules namely:—

1. Short title, application and commencement.—(1) These rules may be called the Family Courts (Kerala) Rules,
1989.

2. They shall apply to the Family Courts constituted in the State of Kerala under the Family Courts Act, 1984.

3. They shall come into force on such date as the Government may1 by notification in

Gazette, appoint.

2. Party entitled to legal advice.—(1) A party to a suit or proceeding shall be entitled, with the permission of the
Court, to take legal advice at any stage of the suit or proceeding either before the Counsellor or before the Court.

(2) Members of the Scheduled Castes/or Scheduled Tribes or persons in indigent circumstances who were given
permission under sub-rule (1) shall be eligible for free legal aid and advice, and the cost thereof shall be met by the
Government.

Explanation.—A person in indigent circumstances would be one whose monthly income is less than Rs. 400.

Institution of Proceedings and Service

3. Institution of proceedings.—All proceedings instituted before the Family Court shall be by way of petition;
however, in respect of applications under Chapter IX of the Code of Criminal Procedure, 1973 (Central Act 2 of
1974), the provisions of that Code will apply.

4. Filing of petitions.—Every petition or application shall be accompanied by as many dear authenticated copies
thereof as there are respondents to be served and by three additional copies for the use of the Court and by such
papers as are referred to in the petition or application. One copy of such petition or application shall be forwarded
by the Chief Ministerial Officer of the Family Court to the Principal Counsellor.

5. Summons to respondent.—In all matters other than those under Chapter IX of the Code of Criminal Procedure,
1973 the summons to appear and answer shall be in form No. I in the Appendix with such variations as the
circumstances of the case may require.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

6. Name and address of the party lo be slated in every process.—The name and address of the party shall be
stated in every summons, witness summons, interim application notice, warrant and every process of the Court
issued at the instance of such party.

7. Summons etc., how attested and signed.—All summons, rules, orders, warrants and other mandatory
processes shall be scaled with the seal of the Court and shall be signed by the Chief Ministerial Officer adding
thereto the date of signing.

8. Returnable dale of summons.—Unless otherwise ordered, the summons shall be made returnable within three
weeks from the date of the filing of the petition, if the respondent resides within the local limits of the Court, and
within five weeks from the date of filing of the petition/if the respondent resides outside the local limits. The
returnable date shall be fixed on the day of the week fixed for giving directions as provided in rule 20.

9. Returnable date of summons in petition to be on the day fixed for giving directions.—The summons shall
be made returnable on the day on which the petition is to be placed on board for directions as herein provided in
rule 20.

10. Mode of service of summons.—Summons together with a copy of the petition or application and annexures, if
any, shall be served in the manner prescribed in the Code of Civil Procedure, 1908 save in proceedings under
Chapter IX of thecode of Criminal Procedure, 1973, where the provisions of that Code will apply.

11. Proof of service of summons.—Unless the Court shall otherwise order., the service of a summons to appear
and answer shall be proved by evidence showing that the summons was served in the manner provided by the
Code of Civil Procedure, 1908.

12. Substituted service.—Application for substituted service of the summons shall be governed by the
corresponding provisions in the Code of Civil Procedure, 1908.

13. Dismissal of petition if summons not served within six months.—If on account of the default of the
petitioner, the summons is not served within six months from the date of the filing of the petition or application, the
Court shall, unless good cause is shown, dismiss the petition or application. Such dismissal shall be notified on the
notice board by the Chief Ministerial Officer.

14. Counselling Centre.—There shall be attached to each Family Court a Counselling Centre to be known as “The
Counselling Centre of The Family Court of.................”.

15. Composition of Counselling Centre.—Each Counselling Centre shall have a principal Counsellor and such
number of Counsellors as the Government may, in consultation with the High Court, determine.

16. Different units of Counselling Centre.—The Counselling Centre shall be divided into different units and may
be located in the Court premises and/or in such other place or places as the High Court may direct.

17. Appointment of Counsellors.—Counsellors attached to the Counselling Centre shall be appointed by the
Government in consultation with the High Court:

Provided that the opinion of one or more professionally qualified experts in family and child welfare, preferably
working in recognised institutions of social science or social work wherever possible, shall be considered by the
Government before making such appointment.

18. Qualifications.—Persons above the age of thirty-five who have a Masters Degree in Social Work or persons
above the age of thirty-five working in the field of social service and welfare activities and engaged in promoting the
welfare of family and child care or who by their education and experience arc considered competent by the
Government, shall be eligible for appointment as Counsellors. Preference shall be given to women.

Proceedings in Court

19. Directions on the returnable date.—On the returnable date of the summons, the petition shall be placed for
directions before the Judge of the Family Court.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

20. Date of giving directions.—One day in a week shall be designated by the Judge for the giving of such
directions

21. Presence of Counsellor in Court.—On the date fixed for giving directions, the Principal Counsellor or such
other Counsellor authorised by him shall attend the Court of the Judge giving directions.

22. Direction to consult the Counsellor.—When giving such directions, the Judge shall, in consultation with the
Principal Counsellor or such other Counsellor who may be present in Court, direct the parties to consult the
specified Counsellor for the purpose of counselling.

23. Selection of Counsellor.—Such Counsellor shall be chosen bearing in mind the convenience of the parties,
their special requirements and other attendant circumstances.

Counselling Procedure

24. Counsellor to fix time and date for counsellings.—The Counsellor appointed to counsel the parties shall fix
the time and date of appointment. The parties shall be bound to consult the Counsellor on the date and at the time
so fixed.

25. Failure to attend counselling.—If one of the parties fails to attend the counselling on the date and at the time
so fixed, the Counsellor may fix another date and time and inform the absentee party accordingly by registered
post. If the said party does not attend the counselling centre on such adjourned date, the Counsellor may make a
report to the Court stating that one or both the parties have failed to attend the counselling centre. On such report
being made the Court may proceed with the matter without prejudice to the other powers of the Court to take action
against a defaulting party.

26. Duties and functions of a Counsellor.—(1) Counsellor entrusted with any petition shall assist and advise the
parties regarding the settlement of the subject-matter of dispute between the parties or any party thereof. The
Counsellor shall also help the parties in arriving at reconciliation.

(2) The Counsellor in the discharge of his duties shall be entitled to pay home visits to the homes of any of the
parties.

(3) The Counsellor in the discharge of his duties shall be entitled to interview relatives, friends and acquaintances of
parties or any of them.

(4) The Counsellor in the discharge of his duties may seek such information as he may deem fit from the employer
of any of the parties.

(5) The Counsellor may in the discharge of his duties refer the parties to an expert in any other area such as
medicine or psychiatry.

27. Panel of experts.—The Judge in consultation with the Principal Counsellor of the Family Court shall prepare a
panel of such experts.

28. List of institutions, agencies etc.—(1) There shall be prepared by the Government a list of institutions,
organisations, agencies or persons working in the State in the area of Social Welfare, Family Welfare, Child
Guidance, Employment or in any other areas as the Government may deem fit, to enable the Counsellor or party to
a suit or proceeding to obtain the assistance of such institutions, organisations, agencies or persons.

(2) The Counsellor may take the assistance of such institutions, organisations, agencies or persons in the discharge
of his duties.

29. Confidentiality of information.—Any information gathered by the Counsellor any statement made before the
Counsellor or any notes or report prepared by the Counsellor shall be treated as confidential. The Counsellor shall
not be called upon to disclose this information, statements, notes or report to any Court except with the consent of
both the parties.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

30. Counsellor not to give evidence.—The Counsellor shall not be permitted to give evidence in any Court in
respect of the information, statements, notes or report referred to in rule 29:

Provided, that the Counsellor shall submit to the Court a report relating to the home environment of the parties
concerned, their personalities and their relationship with their child/children in order to assist the Court in deciding
the question of custody or guardianship of any child/children of the marriage:

Provided further that the Counsellor shall also submit to the Court a report relating to home environment, income or
standard of living of the party or parties concerned in order to assist the Court in determining the amount of
maintenance and/or alimony to be granted to one of the parties.

31. Report from the Counsellor.—The Court may also request the Counsellor to submit to it a report on any other
subject in order to assist the Court in adjudicating upon the matter before it or any part thereof and a copy thereof
may be supplied to the parties on request.

32. Parties’ right to make submissions.—The parties shall be entitled to make their submission on the report.

33. Counsellor not to be cross-examined.— The Counsellor shall not be asked to give evidence and shall not be
cross-examined in any Court in respect of the report so made.

34. Submission of memorandum.—Save as aforesaid, the Counsellor shall submit a brief memorandum to the
Court informing the Court of the outcome of the proceedings before him.

35. Settlement before Counsellor.—When the parties arrive at a settlement before the Counsellor relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
counter-signed by the Counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court
considers the terms of the settlement unconscionable or unlawful.

36. Counsellors right to supervise custody of children.—The Counsellor shall be entitled to supervise the
placement of children in custody of a party and for reasons to be recorded in writing, shall be entitled to pay
surprise visits to the home where the child resides between 6 a.m. and 6 p.m. In the event of the Counsellor coming
to a conclusion that any alteration is required in the arrangement relating to custody of a child/children, the
Counsellor shall make a report to the Court in that connection Thereupon, the Court may after notice to the parties,
pass such orders in that connection as the Court may deem fit.

37. Counsellors right to supervise reconciliation.—The Counsellor shall also be entitled to supervise/guide
and/or assist reconciled couples, although the matter is no longer pending in Court.

38. Co-habitation shall not be deemed to be condonation of the matrimonialoffence.—Co-habitation between

the parties, in the course of conciliation proceedings before the Counsellor, shall not be deemed to be condonation
of the matrimonial offence.

Hearing of petitions in Court

39. Filing of memorandum in Court.—On the proceedings before the Counsellor coming to an end and the
Counsellor filing a memorandum in the petition setting out the outcome of the proceedings before him, the Chief
Ministerial Officer shall call a meeting of the parties to fix a date of hearing of the petitions. Intimation of such
meeting shall be given to the parties by registered post or personally.

40. Meeting before Chief Ministerial Officer.—At the meeting so fixed the Chief Ministerial Officer shall fix a date
of hearing after consulting both the parties.

41. Ascertaining time to be taken up in hearing.—The Chief Ministerial Officer shall also ascertain from the
parties the approximate time likely to be taken by each party before the Court for the hearing of the matter and
report the same to the Court for appropriate adjustment of work by the Court.

42. Consequence of absence before the Chief Ministerial Officer.—In the event of any party remaining absent
at the meeting called on by the Chief Ministerial Officer, he shall fix such date of hearing as he may deem fit. The
Chief Ministerial Officer shall fix a date at least 4 weeks after the date of the meeting.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

43. Placing the petition on the board of the Court.—On the dates so fixed by the Chief Ministerial Officer the
petition shall be placed before the Court for hearing and final disposal.

44. Adjourned dale of hearing.—Any party finding the date fixed by the Chief Ministerial Officer unsuitable for any
reason, may get it adjourned by the Chief Ministerial Officer after notice to the other side but a least two weeks
before it is placed on the dally board.

45. Chief Ministerial Officer not to alter date.—The Chief Ministerial Officer shall not ordinarily alter the date
when the date has been fixed in the presence of both the parties.

46. Adjournment by the Court.—A petition so fixed on the daily board shall not be adjourned by the Court unless
there are exceptional circumstances justifying such adjournment and unless they are such as could not have been
foreseen when the date of hearing was fixed before the Chief Ministerial Officer. The Court shall record its reasons
for adjourning a matter.

47. Independent legal representation of a minor.—lt shall be open to the Court to appoint any person capable of
protecting the interests of a minor as his/her representative to represent independently the minor affected by
litigation before the Court. The Court shall endeavour that such representative should not derive any undue
pecuniary advantage out of the appointment. The Court may appoint a representative as amicus curiae to assist the
Court in the discharge of its duties.

48. Evidence.—The Court shall prepare a memorandum of the substance of what the witness deposes as
prescribed under section 15 of the Family Courts Act, 1984. It is open to the Court to tape-record the evidence.

49. Transcript of tape-recorded evidence.—In the event of any appeal or revision being filed before the High
Court, a party may apply to the Court for transcription of the tape-recorded evidence, if any. Such transcription shall
be supplied to the party concerned on payment of such fees as may be determined by the Court from time to time.

50. Provisions of CPC and Cr PC to apply.—Save as aforesaid, the provisions of the Code of Civil Procedure,
1908 and of thecode of Criminal Procedure, 1973, as the case may be, shall apply to the proceedings before the
Family Court.

Interim Applications

51. Interim applications.—All interim applications to the Court shall be separately numbered as “Interim
Application No.........in petition No..............

52 Interim applications while matter is pending before Counsellor.—An interim application may be made even
while the matter is pending before a Counsellor.

53. Report from the Counsellor.—The Court may ask the Counsellor to submit an interim report for the purposes
of such application before deciding an Interim application.

Guardianship

54. Applications for guardianship.—All applications for guardianship other than applications over which the High
Court has jurisdiction shall be filed before the Family Court.

55. Form of application.—Every application shall be in the form of a petition.

56. Assistance of Social Welfare Agency.—In deciding a guardianship petition, the Court may take the
assistance of a social welfare agency for scrutiny of the petition. The Court may also ask such an agency for its
report thereon.

57. Fees.—The Court may fix the fees to be paid to the agency for its work.

58. Application to be accompanied by home study report.—(1) Every application for guardianship, when it is by
a person other than the natural parent or natural guardian of the child, shall be accompanied by a home study
report of the persons asking for such guardianship and his/her spouse, if any, prepared by an approved family
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

welfare agency or a suitably trained social worker. A list of such agencies and /or persons shall be prepared by the
Judge and Principal Counsellor in consultation with the High Court.

(2) When the petition for guardianship is so filed by a foreigner the Court may accept a home study report prepared
by a recognised family welfare agency of the country where the foreigner resides.

59. Contents.—Every petition for guardianship shall be accompanied by—

(i) two recommendations from respectable members of the community;
(ii) a salary certificate or statement relating to the annual income of the petitioner and his/her financial position;
(iii) a health certificate of the petitioner and his/her spouse signed by a medical practitioner and also a medical
report regarding sterility, if any, of the petitioner and/or the spouse;
(iv) a health certificate of the child proposed to be taken in guardianship signed by a medical practitioner;
(v) a child study report of the child proposed to be taken In guardianship together with a photograph of the
child. Such report shall be in Form No. 2 in the Appendix when the child is Institutional or Court committed;
(vi) a declaration from the proposed guardian and his/her spouse, if any, expressing their willingness In lake
the child in guardianship.

60. Application by foreigners.-When the petitioner applying for guardianship is a foreigner, the petition shall also be
accompanied by:—
(i) permission from the country where the petitioner resides, for the child to enter the country.
(ii) an undertaking by a recognised family welfare agency of the country concerned to supervise the child in
the home of the petitioner until the child ill legally adopted.

61. Adoption under the law of the country where the foreigner resides.—In granting a petition of a foreigner for
guardianship, the Court shall satisfy itself that the child can be legally adopted by the foreigner under the law of the
country where he/she resides.

62. Bond.—The Court may direct a foreigner-petitioner to give a bond for such amount as it may think proper for
the return of the child to India in case of any difficulty.

63. Financial security of the minor.—While granting a petition for guardianship, the Court may pass such orders
as it may deem proper for the financial security of the minor.

64. Consent of natural mother.—When the child proposed to be given in guardianship is an abandoned child the
Court shall satisfy itself that the consent of the natural mother was taken at the time of abandonment of the child or
at any time thereafter to the child’s being given in guardianship or adoption to another person.

65. Affidavit of the institution.—When the child being placed in guardianship is an abandoned child from an
institution for abandoned children, the institution shall file an affidavit setting out the circumstances under which the
child was abandoned. The affidavit shall also set out whether the institution ill agreeable to the child being given in
guardianship to the petitioner.

66. Attempts for placement in India.—The Court in its discretion, may not entertain a petition for guardianship by
a foreigner unless the Court is satisfied that adequate attempts for at least three months or such other period as the
Court may deem fit, have first been made to place the child in an Indian home. For this purpose the Court may ask
the petitioner to obtain a “no objection” certificate/letter from any recognised/approved voluntary co-ordinating
agency or any other similar organisation working for the placement of children in Indian homes.

67. Application by a related person.—When the proposed guardian is related to the child, the Court may
dispense with any of the above provisions.

68. Form of Order.—A guardianship order shall be in Form No. 3 with such variations as the Court may deem fit. A
photograph of the child signed by an authorised officer of the Court shall be attached to the order.

69. Copy to be forwarded to Ministry of Social Welfare.—A copy of every guardianship order appointing a
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

foreigner as a guardian shall be forwarded to the Minister of Social Welfare of the State and also to the Ministry of
Social Welfare, Government of India.

FORM NO.1

(See rule 5)

In the Family Court of.............................

Petition No.............................
of................................................20.................................................................................................................................
.............................................................................................

Petitioner

Versus

.....................................................................................................................................................Respondent

To

...................................................

Whereas the abovenamed Petitioner has instituted a petition against you, as set out in the petition (annex the
petition),

You are hereby required to file in this Court an appearance in person or a vakalatnama within 3

weeks from the service of this summons upon you;

And whereas the suit will be placed for directions on the board of the Judge on the..............day
of.............................20.............................;

You are hereby summoned to appear before the Judge to answer the Petitioners claim on the s
aid.............................day of.............................20.....................at 11 O’clock in the forenoon.

Take notice that on the day before mentioned, after hearing parties who appear, directions will be given by the
Judge as to the dare of hearing before a Counsellor of the Family Court and other matters concerning the petition.

Take further notice that if you fail to file your appearance in person or a vakalatnama as directed above, or if you fail
to appear before the Judge on the day before mentioned, the petition may be ordered to be set down on Board on
the same day or any subsequent day as “undefended” and you will be liable to have a decree or order passed
against you.

Witness.....................................................................................................................................Principal

Judge at..............................................................................................................................aforesaid, this day

of......................................................20.......................................................................................

Seal

Chief Ministerial Officer

The..........................................................day of.............................20.............................

Petitioner/Advocate for the Petitioner.

Address:

FORM NO.2
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(See rule 59)

CHILD STUDY REPORT

Information on the child who is to be placed in Guardianship for the purpose of adoption under the
Guardian and Wards Act, 1890

Name of the child:

Name of the Institution:

Address:

PART I

1. Name of the child

2. Reference No. as per General Register of the Institution
3. Present Age
4. Sex
5. Religion (if known)
6. Date of birth (if available)
7. Place of birth (if available)

PART II

1. Petition No.
2. Name of the petitioner.
3. Complete address of the petitioner.

PART III1

LEGAL DATA

1. Name of the Committing Court

2. Age of the Child at the time of commitment
3. Date of order of commitment
4. Period of commitment
5. Final date of release
6. Section of the Kerala Children Act, 1972 (3 of 1973)
7. Date of admission to your institution (Please enclose a copy of the Court commitment warrant)

Please enclose a copy of the report of the Probation Officer which he/she has submitted to the Juvenile Court: at
the time of commitment of the child.

PART IV

(SOCIAL DATA)

1. How the child came to your institution

(a) Admitted directly
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(b) Vacancy was reserved and then got committed

(c) Transferred from any other institution and, if so, which one
(d) Any other source.
2. Circumstances under which the child came to the original institution
3. Reasons for .seeking protection in the institution
4. Information about the relatives
5. 1In case they are alive, have they agreed to give away the child in adoption/guardianship and if so, whether
written consent has been obtained.
6. Whether the relatives have established any contacts with the child after his/her admission to your institution
7. If the child is purely destitute, give factors which will show that
8. Any other information on which you would like to add.

PART V

(BEHAVIOURAL OBSERVATIONS)

1. How long the child is with you in your institution.

2. Attitude towards other inmates.
3. Relationship towards relatives, staff and other adults.
4. Intelligence (if and where possible, I.Q. report should be enclosed).
5. General personality and description of the child.
6. Play activity and any specific talent.
7. Observer’s impressions about the child.
8. Please indicate how the parent plan of rehabilitation, will be useful to the child taking into consideration the
child’s needs and temperament.
9. If the child is school-going, give a detailed report about his/her standard attendance, general interest in
studies, progress and defects, if any.
10. Any other information.

PART VI

Physical and Medical report-Form enclosed

PART VII

1. Have you reviewed the Home study report of the adoptive parents and do you feel that the placement of
this child with this family is suitable?
2. Have the adoptive parents seen the details of child whom they wish to bring up and have they approved of
the child after knowing the general conditions-physical or mental defect, etc.?

If so, please give a copy of the certificate wherein the adoptive parents have given their consent in writing that they
have examined the Child Study Report and accepted the proposed child.

PART VIII

I, Shri/Smt.................................Superintendent..............................hereby certify that the information given in this

form about the child is correct.

I also enclose herewith the certificate/attested copies of the following documents:

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

1. Copy of the Court warrant.

2. Copy of the report of the Probation Officer.
3. Consent of the parents to give way the child.
4. Consent of the adoptive parents to accept the child.

Signature........................

Name..............................

Designation...................

Place:

Date:

FORM NO.3

(See rule 68)

IN THE FAMILY COURT AT

Petition No.............of 20 ...............

In the matter of the Guardian and Wards Art, 1890;

And

In the matter of appointment of guardian of the person of a male/female minor ..................an inmate
of...................................

Petitioner

UPON READING the petition of....................................the petitioner therein dated..................for the appointment of
the petitioner as the legal guardian of male/female minor....................................born on..................and to adopt the
said minor as his son/daughter according to the laws of.................AND UPON
HEARJNG......................................................in support of the said Petition AND
UPON....................................agreeing to comply with the guidelines contained in the judgment of the Supreme
Court of India in Writ Petition (CRL) No. 1171 of 1982 (Laxmi Kant Pandey v. Union of India), AIR 1984 SC 469
[LNIND 1984 SC 30] AND UPON READING the affidavit of....................................consenting to the appointment of
the Petitioner as the Legal Guardian of the said minor AND UPON considering the representation made
by...................AND UPON HEARING....................................the representative of the
said....................................AND UPON the petitioner...................................hereby giving an Undertaking to this
Honourable Court to produce the said minor whenever required AND FURTHER undertaking to communicate the
address of the said minor to the authorities of....................................by....................................of every year.

AND FURTHER undertaking to take the proper care, look after, educate and to bring up the said minor as if she/he
was a child of the petitioner AND FURTHER undertaking to treat the said minor on an equal footing with his natural
and/or adopted children.- if any, in all matters of maintenance, education and succession and before taking the said
minor out of India the Petitioner further. Undertaking to execute a Bond either personally or through his duly
constituted attorney in India in favour of the Chief Ministerial Officer of his Honourable Court in the sum of
Rs.................. to repatriate the said minor to India by air should it become very necessary for any reason to do so
AND FURTHER undertaking to adopt the said minor within a period of two years after the arrival of the said minor
to his home according to the laws of.....................................AND FURTHER undertaking to submit to this
honourable Court every three months for the first two years and every six months for the next three years progress
report of the said child (along with his/her recent photograph) made or verified as correct by the organisation which
made the Hone Study Report herein regarding the said minor’s moral and material progress and his/her adjustment
In. the Petitioner’s family with information of the date of arrival of the said minor from India to the petitioner’s home
and the true copy of the adoption order with the copies of the said reports to the said............................................
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

AND FURTHER.................................the agency who has submitted the said Study Report of the petitioner agreeing
that in case of disruption of the petitioner’s family before adoption the said agency shall take care of the minor and
find a suitable alternative placement for it with the approval of the Institution whose inmate the minor is and report
such alternative placement to the Honourable Court and also to the................................... I DO ORDER that the
notice under section 11 of the Guardian and Wards Act, 1890 be and the same is hereby dispensed with AND I DO
FURTHER ORDER that the petitioner ....................................be and is hereby appointed guardian without security
and Without remuneration of the said minor..................born on..................whose latest photograph duly certified as
such ..........and counter-signed by an Officer of this Honourable Court is attached hereto and marked as Exhibit ‘A’
and now in the custody and care of the authorities of the said....................................AND I DO FURTHER ORDER
that after executing the Bond as aforesaid the petitioner ..................be and is hereby granted leave to remove the
said after minor from the jurisdiction of this Honourable Court and to take him/her away to ..................or wherever
he may desire and for that purpose make an application to the passport authorities or any other authorities to take
away the said minor out of the jurisdiction of this Hon’ble Court AND I DO HEREBY LASTLY ORDER that the
petitioner herein do pay a sum of Rs..................to the said..........towards their costs of the petition.

Dated this..................day of..................20.................. delete whatever is not applicable) JUDGE

Advocate for the Petitioner:

Exhibit ‘A’

Certified latest-photograph of male/female minor..................born on..................

Chief Ministerial Officer Family Court

(9) THE HIGH COURT OF MADHYA PRADESH FAMILY COURTS RULES,

1988
No. A-9704-III-6-3-85, dated 13-10-1988.1—In exercise of the powers conferred by sub-sections (1) and (2) of
section 21 of the Family Courts Act, 1.984 (66 of 1984), the High Court of Madhya Pradesh makes the following
rules, viz.:—

1. Short title.—These rules may be called the High Court of Madhya Pradesh Family Courts Rules, 1988.

2. Commencement.—These rules shall come into force on such dale as the High Court may by notification in the
Official Gazelle appoint in this behalf.
(a) “Act” means the Family Courts Act, 1984 (66 of 1984);
(b) “Counsellor” means a person referred to in section 6 of the Act;
(c) “Family Court” means a Family Court established under section 3 of the Act;
(d) “High Court” means the High Court of Madhya Pradesh;
(e) All other words and expressions used but not defined in these rules and defined in the Act, or in the Code
of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, shall have the meaning respectively
assigned to them in the Act, or, as the case may be, in the Code of Civil Procedure, 1908 or in the Code of
Criminal Procedure, 1973.

4. Working hours.—(1) The office of the Family Court shall be open daily, except authorised holidays, for
transaction of office work between the hours of 10.30 a.m. and 5p.m.

(2) The Judge of the Family Court shall ordinarily sit in the Court between the hours of 11 a.m. and 5 p.m. on
workings days of the Family Court, with a recess between 2 and 2.30 p.m.

(3) Notwithstanding anything contained in sub-rule (1) or (2), the High Court may for seasonal or other temporary
causes by order in writing to be published in “Madhya Pradesh Rajpatra” substitute different working hours for office
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

and silting of Judges of Family Courts and different working hours and period of recess may be fixed for Family
Courts located indifferent revenue districts.

5. Holding of sitting of Family Court on holidays and outside normal working hours.—(1) Every Family Court
shall ordinarily hold its silting at such place or places, as the High Court may by notification in the Official Gazette
specify in this behalf.

(2) Subject to general superintendence of the High Court, a Family Court may hold its sitting on any authorised
holiday, where such Court be of the opinion that such a course shall tend to the general convenience of (a) the
parties, or (b) the witnesses, or (c) of institutions or organisations or of persons referred to in section 5 of the Act.

(3) A Family Court may after consulting parties (if present) and for any reason considered sufficient by it, hold or
continue its silting outside normal working hours, whether on any working day or on authorised holidays.

(4) No act of Family Court shall be invalid by reason of holding or continuing its sitting on any holiday during hours
outside normal working hours.

6. Efforts for arriving at settlement.—(1) Every Family Court shall maintain separate lists of.—
(a) institutions and organisations engaged in social welfare together with names and addresses of
representatives of such institutions or organisations;
(b) persons professionally engaged in promoting the welfare of the family with their addresses;
(c) persons working in the field of social welfare with their addresses.

(2) (i) in every suit or proceeding of the nature referred to in Explanation to sub-section (1) of section 7 of the Act,
the Judge or Judges of the Family Court shall strive at bringing about amicable settlement of dispute between the
parties and may for the purpose get general idea of the nature of dispute and cause for differences giving rise to
suit or proceeding, as far as can be gathered from informal discussions with parties.

(ii) The Judge or one of the Judges of the Family Court if it consists of more than one Judge, shall keep brief note of
substance of discussions referred to in item (i).

(iii) The Family Court shall consider whether any institution, organisation or any person, in each case referred to in
section 5 of the Act, should be associated with it in efforts for amicable settlement and if so considered advisable by
it, call upon representative of such Institution, organisations or persons for assistance or for use of good offices for
bringing about amicable settlement between the parties.

(iv) A Family Court in session of any suit or proceeding may by notice in writing require parties thereto, or, in case
of minor or a person under disability, his ’de jure or ‘de facto’ guardian to appear before representative of the
institution, organisation or any person referred to in clause (b) or clause (c) or clause (d) of the Act on such date,
time and place, as it may consider proper, and parties or as the case may be, the guardian aforesaid shall comply.

7. Report from institution, organisation, etc.—(1) A Family Court may call for report as regards efforts made or
to be made by the institution. organisation or persons referred to lion section 5 of the Act:

Provided that where efforts for amicable settlement are continuing or are deferred, the Family Court may require the
institution, organisation or persons to submit before it an ‘interim’ report.

(2) Where efforts to arrive at amicable settlement between the parties do not yield any positive results, the
institution, organisation or as the case may be, the person referred to in section 5 of the Act, shall submit report to
the Family Court staring why it had not been possible to bring about amicable settlement of dispute between the
parties, and suggesting future course of action that may be followed.

(3) Every report including an ‘interim’ report under this rule shall form part of the record of the suit or proceeding.

8. Registration of suits or proceedings received on transfer under section 8 of the Act.—(1) Every suit or
proceeding received on transfer a Family Court by virtue of provisions of section 8 of the Act shall be registered by
such Court in accordance with such instructions as may be issued by the High Court in writing.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(2) The High Court may under instructions issued under sub-rule (1) require separate registration of suits or
proceedings pending in District Court or in Civil Court subordinate to such District Court and transferred to Family
Court for the area concerned by virtue of first part of clause (c) of section 8 of the Act, and on every proceeding
under Chapter IX of the Code of Criminal Procedure, 1973 pending before any Criminal Court of Judicial Magistrate
and transferred to such Family Court by virtue of second part of clause (c) of section 8 of the Act.

9. Registration of fresh suits or proceedings.—(1) The High Court may in relation to any fresh suit or fresh
proceeding issue instructions in writing to Family Courts for registration of fresh suit or fresh proceeding.

(2) In particular and without prejudice to the generality of the foregoing power, the instructions to be issued by the
High Court, may provide for inclusion for the purposes of the registration of suits or any proceedings of the nature
referred to in Explanation to sub-section (1) of section 7 of the Act and instituted or taken before a Family Court with
reference to related provisions contained in following laws as amended from time to time, viz.—
(i) proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(ii) suit or proceedings under the Hindu Marriage Act, 1955 (25 of 1955);
(iii) suit or proceeding relating to maintenance under the Hindu Adoptions and Maintenance Act, 1956 (78 of
1956);
(iv) suit or proceedings in relation to the guardianship of the person or the custody of or access to any minor
under the Hindu Minority and Guardianship Act, 1956 (32 of 1956);
(v) proceedings under Dowry Prohibition Act, 1961 (28 of 1961), for an order for injunction in circumstances
arising out of marital relationship;
(vi) proceedings in relation to Hindu Marriages (Validation of Proceedings) Act, 1960 (19 of 1960);
(vii) suits or proceedings arising out of personal law applicable to Muslims including.—
(a) Muslim Personal Law (Shariat) Application Act, 1937 (26 of 1937);
(b) Discussion of Muslim Marriages Act, 1939 (8 of 1939);
(viii) suits or proceedings under the Parsi Marriage and Divorce Act, 1936 (3 of 1936), which can be instituted or
taken out before the Parsi District Matrimonial Courts constituted under section 18 and 20 of the said Act;
(ix) suits or proceedings under the Indian Christian Marriage Act, 1872 {15 of 1872);
(x) suits or proceedings under the Special Marriage Act, 1954 (43 of 1954);
(xi) proceedings under the Child Marriage Restraint Act, 1929 (19 of 1929);
(xii) proceedings in relation to Anand Marriage Act, 1909 (7 of 1909);
(xiii) proceedings in relation to Arya Marriage Validation Act, 1937 (19 of 1937);
(xiv) suits or proceedings arising out of Foreign Marriage Act, 1969 (33 of 1969);
(xv) suits or proceedings relating to the Part B States Marriages Validating Act, 1952 (1 of 1952);
(xvi) suits or proceedings relating to the Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of
1986);
(xvii) suits or proceedings under the Guardians and Wards Act, 1890 (8 of 1890);
(xviii) suits or proceedings relating to the Hindu Marriages (Validation of Proceedings) Act, 1960 (19 of
1960).

10. Seal.—(1) All writs, summonses, precepts, rules, decrees, orders and other mandatory processes shall be
used, issued or awarded by a Family Court bearing seal of such Court.

(2) The seal referred to in sub-rule (1) shall be of such size and bear such inscription as the High Court may by
order in writing approve.

(3) The seal shall be delivered over and kept in custody of Judge of the Family Court, or if there be Judges in
 Page 45 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

plurality in a Family Court, every Judge of such Court shall be delivered over separate seal and every such seal
shall remain in custody of the Judge concerned.

11. Officers.—The High Court may authorise and empower Judge of the Family Court, or if, there be more Judges
than one in a Family Court the Principal Judge of such Court to appoint so many and such clerks and other
ministerial officers as may be necessary for the administration of justice and due execution of all powers and
authorities exercisable by a Family Court:

Provided that the appointments of officers and ministerial staff shall be subject to any rules or restrictions as may be
prescribed or imposed under the Act.

12. Control of High Court.—Every Principal Judge, Additional Judge and Judge of Family Court shall be under
administrative and disciplinary control of the High Court.

13. Power of High Court to transfer Judges, Officers etc.—Without prejudice to the administrative and
disciplinary control of the High Court under rule 12, such Court or a Judge thereof authorised under general or
special order in this behalf by such Court, may where it is considered necessary or expedient so to do, transfer any
Principal Judge, Additional Judge, Judges or any officer or Ministerial Official of one Family Court to another Family
Court in this State or retransfer such Principal Judge, Additional Judge, Officer or Ministerial Official, as the case
may be and every such Principal Judge, Additional Judge or Judge, Officer or Ministerial Official shall comply.

14. Power of High Court to issue directions.—For ensuring uniformity of practice to be observed by Family
Courts in Madhya Pradesh, the High Court may from time to time issue directions in writing to Family Courts.

15. Judge not to try a case in which he is interested.—No Judge shall hear or decide any case to which he is
party or in which he is personally interested.

16. The Family Courts may use such forms and containing such particulars as may be approved by the High Court.

17. Power to call for information, etc.—(1) The High Court may require Family Courts to maintain such registers
and records and containing such particulars as may be approved by the High Court.

(2) A Family Court shall transmit to the High Court such statistical information whether periodic or otherwise and in
such form as may be specified by the High Court.

(10) THE MADHYA PRADESH FAMILY COURT RULES, 2002

No. F-4-I-Q2-XXI-B(1) Bhopal, 20th Juno, 20021.—In exercise of the powers conferred by section 23 of the Family
Courts Act, 1984 (No. 66 of 1984) the State Government, in consultation with the High Court of Madhya Pradesh,
hereby makes the following Rules, namely:—

1. Short title and commencement.—(1) These rules may be called the Madhya Pradesh Family Court Rules,
2002.

(2) They shall come into force with effect from the date of their publication in the “Madhya Pradesh Gazette.”
(a) ‘Act’ means the Family Courts Act, 1984 (66 of 1984);
(b) “Family Court” means the Court established under section 3 of the Act;
(c) “Government” means the Government of Madhya Pradesh;
(d) “High Court” means the High Court of Madhya Pradesh;
(e) ‘Judge’ means the Judge appointed under sub-section (1) of section 4 of the Act and includes a Principal
Judge or Additional Principal Judge of the Family Court;
(f) All other words and expressions not defined in these rules shall have the same meanings as assigned to
them in the Act.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

3. Service conditions of the Judge of Family Court.—(1) The term of the office of the Judge of Family Court
shall be five years from the date he assumes office; or till he attains the age of sixty two years, subject to the prior
approval of the High Court.

(2) The Judge of the Family Court shall be under the administrative and disciplinary control of the High Court.

(3) A Judge of a Family Court shall be entitled to pay and allowances including travelling allowance, dearness
allowances as admissible to a District Judge, who is drawing supertime pay scale:

Provided that the pay and allowances of a Judge who is a member of the Madhya Pradesh Higher Judicial Service
shall not be less than the presumptive pay and allowances as would have been admissible to him.

(4) A serving member of the Madhya Pradesh Judicial Service appointed as a Judge or Principal Judge or
Additional Principal Judge of a Court being superannuated on attaining the age of superannuation during his tenure
as such judge shall receive pay and allowances which he has last drawn minus pension, if any.

(5) A retired member of the Madhya Pradesh Higher Judicial Service appointed as a Judge or Principal Judge or
Additional Principal Judge of a Court shall receive the pay and allowances which he has last drawn as a member of
the said service minus pension, if any.

(6) Any other person appointed as Judge or Principal Judge or Additional Principal Judge of a Court shall be
entitled to such pay, allowances and other benefits as may be admissible to a member of the Madhya Pradesh
Higher Judicial Service in the supertime scale of pay from time to time.

4. Association of Social Welfare agencies.—(1) Every Principal Judge of the Family Court shall for the
association with it, in consultation with the High Court and State Government maintain in respect of its area register
or registers and record therein the name of:
(i) institutions and organisations engaged in Social Welfare in family matrimonial and allied matters and the
representatives thereof;
(ii) persons professionally engaged in promoting the welfare of families; and
(iii) persons working in the field of social welfare.

(2) Subject to sub-rule (1) the Principal Judge of the Family Court may record such names after obtaining the
written consent of the institution, organisation or person, as the case may be on its own motion or its/his application.

5. Counselling Centre.—(1) There shall be attached to the Family Court in each city a Counselling Centre to be
known as the Family Court Counselling Centre.

(2) The Counselling Centre shall be located in the Family Court premises or at such other place as the High Court
may direct.

6. Appointment of Counsellors.—The Counsellors shall be appointed by the State Government from the panel of
counsellors prepared by the Principal Judge of the Family Court and approved by the High Court:

Provided that no Counsellor shall continue after he attains the age of 65 years.

7. Number of Counsellors.—(1) The number and categories of counsellors in each Counselling Centre shall be
such as may be determined by the Government in consultation with the High Court, from time to time.

(2) Where more than one Counsellors are appointed in Counselling Centre, one of, them may be designated as
Principal Counsellor by the High Court.

8. Qualification for Counsellor.—(1) Any person having a degree of a recognised University preferably with Social
Science or psychology as one of the subjects, and minimum experience of two years in social work, child psychiatry
or family Counselling, shall be eligible for appointment as a counsellor:

Provided that the minimum academic qualifications may be relaxed in exceptional circumstances:
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Provided further that preference may be given to women having the requisite qualification:

Provided also that person shall be eligible for appointment on the post of Counsellor unless he has attained the age
of 35 years and is below 60 years of age:

(2) A Candidate who—

(a) has been a Judge, or
(b) has experience of Counselling in family matters, shall, other things being equal, be given preference in the
matter of appointment.

9. Payment of Honorarium/fee to Counsellors.—(1) The Honorarium or fee permissible to persons employed as

counsellors shall be such as may be determined by the State Government from time to time.

(2) The Counsellors shall be entitled to the payment of Honorarium or fee at the minimum rate of Rs. 75 (Rupees
Seventy-Five) per case per sitting for reconciliation. The number of sittings restricted for each case should be more
than four. In any case, the total honorarium or fee of a counsellor shall not exceed Rs. 300 (Rupees Three
Hundred) per day.

10. Function of Counsellor.—(1) The Counsellor, entrusted with any petition, shall—
(i) attend the Court as and when required by the Judge of the Family Court;
(ii) aid and advise the parties regarding settlement of the subject-matter of dispute or any other part thereof;
(iii) help the parties in reconciliation;
(iv) submit report or interim report, as the case may be fixed by the Court;
(v) perform such other functions as may be assigned to him by the Family Court from time to time.

(2) In performing his functions under sub-rule (1) the Counsellor shall be guided by such general or special
directions as may be given by the Family Court from time to time.

11. Conditions of service of employees of a Family Court.—The qualifications, procedure for recruitment, pay
and other conditions of service of the employees of a Family Court shall be the same as of the employees of similar
category in the Courts under the control of District Judge and the rules relating thereto shall, mutatis mutandis,
apply.

12. Assistance of medical experts, welfare experts.—(1) Where the Family Court decides to secure the services
of any expert or other person referred to in section 12 of the Act, the Courts shall indicate the exact point or points
on which and manner in which the service required is to be rendered.

(2) The expert or other person referred to in sub-rule (1), shall render the service and submit its report within such
time as may be indicated in the order of the Family Court or within such extended time as may be given by the
Court.

(3) The Family Court shall permit the parties to file objections against such report.

(4) The Court shall consider the report in deciding the dispute but shall not be bound to accept anything contained
therein.

13. Travelling and other expenses payable to medical and other experts.—Where in the opinion of the Family
Court, the assistance of an expert or other person referred to in section 12 of the Act is necessary, it may, suo moto
or on the application of the party, direct the payment of such fees and expenses, out of the revenue of the State as
specified below:—

(1) (2)
(a) If the expert is Government servant Travelling expenses at the rates as admissible to him in the
service of the State Government.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(1) (2)
(b) If the expert is not a Government servant Travelling expenses at the rates as admissible to Class I
officer of the State Government plus Rs. 500 as fees per day

14. Permission for representation by a lawyer.—The Court may permit the parties to be represented by a lawyer
in Court. Such permission may be granted if the case involves complicated question of law or fact and if the Court is
of the view that the party in person is not in a position to conduct his or her case adequately or for any other
reasons, the reason for granting permission shall be recorded in the order. Permission so granted may be revoked
by the Court at any stage of the proceedings if the Court considers it just and necessary.

15. Time for making application.—An application by a party for being represented by a lawyer in Court shall be
made by such party to the Court after notice to the other side.

Such an application shall be made not less than two weeks prior to the date fixed for hearing of the petition.

16. Application not to be entertained during the hearing.—An application under rule 15 shall not be entertained
after the petition is placed for hearing on the daily board of the Court unless there are exceptional circumstances
justifying such late application.

17. Independent legal representation of a minor.—The Court may appoint a lawyer to represent independently
any minor affected by litigation before the Court. The Court may give suitable directions regarding fees to be paid to
such a lawyer.

18. Amicus Curiae.—(1) The Family Court shall maintain a panel of legal experts, including legal practitioners,
willing to be appointed as amicus curiae.

(2) Where it appears to the Family Court that the assistance of a legal expert as amicus curiae is necessary in the
interest of justice, the Court may engage a legal expert from the said panel.

(3) The amicus curiae, engaged under sub-rule (2), may be paid by the Family Court out of the revenues of the
State, fees and expenses at the rates of Rupees Five Hundred per case or proceeding.

19. Termination of appointment of Counsellor.—The appointment of a Counsellor may be terminated at any time
before the expiry of his term on the recommendation of the Judge of the Family Court.

(11) THE MAHARASHTRA FAMILY COURTS RULES, 19871

No. HMA 1685/1125 (149)-X, dated the 22nd April, 1987.—In exercise of the powers conferred by clauses (b), (c),
(d) and (e) of sub-section (2) and sub-section (1) of section 25 read with sections 5 and 6 of the Family Courts Act,
1984 (66 of1984), the Government of Maharashtra, after consultation with the High Court, hereby makes the
following rules, namely:—

1. Short title, commencement and application.—(i) These rules may be called the Maharashtra Family Courts
Rules, 1987.

(ii) These rules shall come into force on the 1st day of May, 1987.

(iii) These rules shall apply to the Family Courts established in the State of Maharashtra, under section 3 of the
Family Courts Act, 1984.

2. Definitions.—In these rules, unless the context otherwise requires.—

(a) “Act” means the Family Courts Act, 1984;
(b) “Centre” means a Counselling Centre;
(c) “Court” means the Family Court established under section 3 of the Act;
 Page 49 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(d) “Principal Counsellor” means the Principal Counsellor appointed by the High Court, and includes
counsellor or counsellors, as the case may be, where Principal Counsellor is not appointed.

3.2[***]

4. Party entitled to legal advice.—A party will be entitled to free legal advice at any stage of the proceedings
either before the counsellor or before the Court. A party in indigent circumstances will be entitled to free legal aid
and advice.

5. Panel of lawyers for free legal advice.—The Court shall maintain a panel of lawyers willing to render free legal
aid and advice. A party entitled to free legal aid and advice will be entitled to select any of the lawyers from the said
panel provided the lawyer is available and willing to accept the case.

6. Condition of engagement.—The terms and conditions of engagement of such a lawyer and the remuneration, if
any, to be paid to him from the State treasury will be as laid down in the Maharashtra State Legal Aid and Advice
Scheme, 1979.

7. Circumstances entitling a party to legal aid.—The circumstances under which such legal aid will be made
available to a party will be as laid down by the High Court.

8. Legal experts as “ Amicus Curiae”.—If the Court considers it necessary in the interest of justice, it may seek
the assistance of a legal expert as “Amicus curiae”. For that purpose, the Court shall prepare a list of legal experts
who are willing to assist the Court as amicus curiae and such legal experts shall be paid fees and expenses out of
the revenue of the Stare Government as per the scale of fees and expenses fixed by the Government, from time to
time, by an order made in this behalf.

9. Counselling Centre.—There shall be attached to the Family Court in each city, town or other area a Centre to
be known as “The Counselling Centre of the Family Court at..........”.

10. Composition.—Each such centre may have a Principal Counsellor and shall have as many counsellors as may
be determined by the High Court.

11. Different units of counselling centre.—The counselling centre may be divided into different units and may be
located in the Court premises and/or in such other place or places as the High Court may direct.

12. Appointment of Counsellors.—Principal counsellor and other counsellors attached to the counselling centre
shall be appointed by the High Court in consultation with one or more professionally qualified experts in family and
child welfare, preferably working with a recognised institution of social science or social work.

13. Qualifications.—Persons having a Master’s Degree in social work with a minimum experience of two years in
family counselling shall be eligible for appointment as counsellors.

14. Counsellor to fix time and date for counselling.—The counsellor appointed to advise the parties shall fix the
time and date of appointment. The parties shall be bound to attend the counsellor on the date and at the time so
fixed.

15. Failure to attend counselling.—lf one of the parties fails to attend the counsellor on the date and at the time
so fixed, the Counsellor may fix another date and time and inform the absent party accordingly by registered post. If
the said party does not attend the counselling centre on such adjourned date, the Counsellor may make a report to
the Court stating that one or both the parties have failed to attend the counselling centre. On such report being
made, the Court may proceed with the matter without prejudice to other powers of the Court to take action against a
defaulting party.

16. Functions of a counsellor.—Counsellor entrusted with any petition shall assist and advice the parties
regarding the settlement of the subject-matter of dispute between the parties or any part thereof. The counsellor
shall also help the parties in arriving at a reconciliation.

17. Home visits.—The Counsellor in the discharge of his duties shall be entitled to pay home visits to the homes of
any of the parties.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

18. Interviews.—The counsellor in the discharge of his duties shall be entitled to interview relatives, friends and
acquaintances of parties or any of them.

19. Information from employer.—The Counsellor in the discharge of his duties may seek such information as he
may deem fit from the employer of any of the parties.

20. Reference to experts.—The counsellor may refer the parties to any expert in any other areas such as medicine
or psychiatry.

21. Panel of experts.—The Principal Judge of the Family Court in consultation with the Principal Counsellor shall
prepare a panel of medical and other experts and such experts shall be paid fees and expense (including travelling
expenses) out of the revenues of the State Government, as per the scale of fees and expenses fixed by the
Government, from time to time, by an order made in this behalf.

22. List of institutions, agencies, etc.—The Principal Judge in consultation with the Principal Counsellor shall
also prepare a list of institutions, organisation or agencies working in the area of family welfare, child guidance,
employment or in any other area that he may deem fit1 in order to enable a counsellor or parties to obtain the
assistance of such an institution, organisation or agency and may also lay down the manner and the conditions for
association of such institutions, organisations or agencies with a Family Court.

23. Assistance of other organisations, etc.—The counsellor may take the assistance of such an organisation,
institution or agency in the discharge of his duties.

24. Confidentiality of information.—(1) Information gathered by the counsellor, any statement made before the
counsellor, any notes or report prepared by the counsellor shall be treated as confidential. The counsellor shall not
be called upon to disclose this information, statement notes or report to any Court except with the consent of both
the parties.

(2) Such notes or report or statements or any material lying with the counsellor shall be kept in sealed packets by
the counsellor and shall not form a part of evidence before the Court. The same may, however, be used for the
purposes of research of education with the permission of the Principal Judge on condition that the identities of the
parties involved shall be kept concealed.

25. Counsellor not to give evidence.—The counsellor shall not be asked to give evidence in any Court in respect
of this information, statements, notes or report:

Provided that the counsellor may submit to the Court a report relating to home environment of the parties
concerned, their personalities and their relationship with their child or children in order to assist the Court in
deciding the question of custody or guardianship of any child or children of the marriage:

Provided further that, the counsellor may also submit to the Court a report relating to home environment, income or
standard of living of the party or parties concerned in order to assist the Court in determining the amount of
maintenance and/or alimony to be granted to one of the parties.

26. Report from the counsellor.—The Court may also request the counsellor in submit to it a report on any other
subject in order to assist the Court in adjudicating upon the matter before it or any part thereof.

27. Supply of copies.—A copy of the report submitted under rules 25 and 26 may be supplied to the parties on
such request being made by the parties.

28. Parties’ right to make submissions.—The parties shall be entitled to make their submissions on the report.

29. Counsellor not to be cross-examined.—The counsellor shall not be called upon to give evidence and shall
not be cross-examined in any Court in respect of the report so made.

30. Submission of memorandum.—Save as provided in these rules the counsellor shall submit a brief
memorandum to the Court informing the Court of the outcome of the proceedings before him.

31. Settlement before counsellor.—When the parties arrive at a settlement before the counsellor relating to the
 Page 51 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
countersigned by the counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court
considers the terms of the settlement unconscionable or unlawful or contrary to public policy.

32. Counsellor’s right to supervise custody of children.—The counsellor shall be entitled to supervise the
placement of children in the custody of a party and shall be entitled to pay surprise visits to the home where the
child resides. In the event of the counsellor coming to a conclusion that any alteration is required in the
arrangement relating to custody of a child or children, the counsellor shall make a report to the Court in that
connection. Thereupon the Court may, after, giving notice to the parties to appear before it, pass such orders in that
connection as the Court may deem fit.

33. Counsellor’s right to supervise reconciliation.—The counsellor shall also be entitled to supervise, guide and
assist the reconciled couples, even if the matter is no longer pending in Court.

34. Co-habitation in the course of reconciliation proceedings.—Co-habitation between the parties in the course
of conciliation proceedings before the counsellor or Court shall not be deemed to be a condonation of the
matrimonial offence.
1[Guardianship]

35. Applications for Guardianship.—All applications for guardianship 2[***] other than applications over which the
High Court has jurisdiction, shall be filed before the Family Courts.

36. Assistance of Social Welfare Agency.—in deciding a guardianship 2[***] petition, the Court may take the
assistance of a social welfare agency or agencies for the scrutiny of the petition. The Court may also ask such an
agency for its report thereon.

37. Fees.—The Court may prescribe fees to be paid to the said agency for its work.

(12) THE FAMILY COURTS (MAHARASHTRA HIGH COURT) RULES, 19881

In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (66 of 1984), the High Court of
Bombay is pleased to prescribe the following Rules for the Family Courts in the State of Maharashtra:—

1. Short title, commencement and application.—(1) These Rules may be called the Family Courts (Maharashtra
High Court) Rules, 1988.

(2) These Rules shall come into force on the date of publication in the Official Gazette.

(3) These Rules shall apply to the Family Courts established in the State of Maharashtra under section 3 of the
Family Courts Act, 1984.

4. Definitions.—In these Rules, unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984;
(b) “Centre” means a Counselling Centre;
(c) “Court” means the Family Court established under section 3 of the Act;
(d) “Petition” shall include an application under Chapter IX of the Criminal Procedure Code unless the subject-
matter or context requires otherwise;
(e) “Principal Counsellor” means the principal Counsellor appointed by the High Court. Where principal
Counsellor is not appointed, it shall include Counsellor or Counsellors as the case may be;
(f) “Family Court Rules” means Rules framed by the Government of Maharashtra in consultation with the High
Court under section 23 read with section 5 and 6 of the Family Courts Act, 1984.

Institution of Proceedings and Service

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

5. Institution of Proceedings.—All proceedings instituted before a Family Court shall be by way of a Petition. In
respect of applications under Chapter IX of the Criminal Procedure Code, however, the provisions of that Code will
apply.

6. Filing of Petitions in duplicate.—A petition or any other application shall be filed in duplicate. One copy of such
petition or application shall be forwarded by the Registrar of the Family Court to the Principal Counsellor forthwith.

7. Summons to Respondent.—In all matters other than those under Chapter IX of the Criminal Procedure Code
the Writ of Summons to appear and answer shall be in Form No. I as set out in the Appendix with such variations as
the circumstances of the case may require.

8. Name and address of the party or of the Advocate to be slated in every process.—The name and address
of a party or of the advocate appearing for a party shall be stated in every Writ of Summons, Witness Summons,
Interim Application, Notice, Warrant and every process of the Court issued at the instance of such party or
Advocate.

9. Summonses, etc., how attested and signed.—All Writs of Summons, Rules, Orders, Warrants and other
mandatory processes shall be sealed with the seal of the Court and shall be signed by the Registrar adding thereto
the date of signing.

10. Sealing of Summons, rules, decree.—The seal of the Court shall not be affixed to any Writ of Summons,
Rules, Order, Warrant, or other mandatory process, unless the same is signed by an Officer of the Court to be
called the Sealer and unless the name of the party or his Advocate on record is subscribed thereto. The date of the
sealing shall be inserted below the signature of the Sealer.

11. Returnable date of Summons.—Unless otherwise ordered, the Writ of Summons shall be made returnable
three weeks after the date of the filing of the petition, if the respondent resides within the local limits of the Court,
and five weeks after the date of the filing of the petition, if the respondent resides outside the said limits. The
returnable date shall be fixed on the day of the week fixed for giving directions as provided in rule 23 and 24.

12. Mode of Service of Summons.—A Writ of Summons shall be served in the manner prescribed in the Code of
Civil Procedure save and except in proceedings under Chapter IX of the Criminal Procedure Code where the
provisions of that Code will apply.

A Writ of Summons in proceedings under Chapter IX of the Criminal Procedure Code may also be served by
registered post with acknowledgement due.

13. Writ of Summons and other process not to be served on Saturdays, Sundays and Holidays.—No Writ of
Summons or other process shall be served on Saturdays, Sundays or on Holidays notified by the Court, except by
leave of the Court.

14. Service at Advocate’s office not to be effected after 6 p.m. on week days and 1.30 p.m. on Saturdays.—
No Writ of Summons or other process shall be served at the Office of an Advocate after 6 p.m. on week days and
1.30 p.m. on Saturdays.

15. Undertaking by Advocate to accept service.—A Writ of Summons need not be served on a respondent
personally, if his advocate undertakes in writing to accept service and to file a Vakalatnama. An Advocate filing his
Vakalatnama, however, shall not be entitled to appear in Court and/or plead his client’s case in Court without
obtaining the leave of the Court as prescribed under rule 37.

16. Only one Writ may be served, when Advocate appears for several respondents.—Where an Advocate
undertakes in writing to accept service and to file a Vakalatmama on behalf of more respondents than one, it shall
be sufficient to serve only one Writ of Summons on the said Advocate on behalf of his clients.

17. Copy of petition to be furnished to the respondent.—Any respondent or his Advocate applying to the
petitioner or his Advocate on record for a copy of the petition and exhibits annexed thereto shall be furnished with
the same but where several of the respondents are represented by the same Advocate, it shall be sufficient to
supply one copy of the petition and exhibits to such Advocate:
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Provided that if the application is made after the passing of a decree in a petition, such copies need only be
furnished to respondent or his advocate on payment of the copying charges.

18. Power to direct issue of fresh summons.—Whenever upon the further amendment of any Writ of Summons
the Registrar shall be of opinion that a fresh Writ of Summons should be substituted, he shall direct it to be done
and such fresh Writ of Summons shall be prepared by the petitioner or his Advocate on record and be examined,
signed and sealed by the proper Officer.

19. Proof of Service of summons.—Unless the Court shall otherwise order, the service of a Summons to appear
and answer shall be proved by the Vakalatnama having been filed or, when no Vakalatnama has been filed, by
evidence showing that the Summons was serviced in the manner provided by the Code of Civil Procedure. Such
proof shall ordinarily be by the affidavit of the bailiff and (as to such matters as the bailiff cannot speak to of his
knowledge) of the person who attended the bailiff for the purpose of identification at the time of service, or of such
other person or persons who can speak to the identity of the person served or to other matters necessary to be
proved in respect of the service.

20. When service through Court.—When the Summons has been served through another Court the service may
be proved by an affidavit of process server sworn before an Officer of the Court through which the service was
effected.

21. Substituted service.—Application for substituted service of the Writ of Summons shall be made to the
Registrar. The application shall be supported by an affidavit, and in the case of service through another Court, by
the affidavit of the Officer who attempted to make the service, and of such other person or persons as may have
accompanied him for the purpose of pointing out the party to be served staling when, where and how such service
was attempted to be made.

22. Dismissal of petition of summons not served within six months.—If the Writ of Summons is not served
within six months from the date of the filing of the petition, the Registrar shall, unless good cause is shown, place
the petition on board for dismissal. The Registrar shall notify such petitions on his notice board one week before
they are placed on the board for dismissal.

Proceedings in Court

23. Directions on the returnable date.—On the returnable date of Summons, the petition shall be placed for
directions before a Judge of the Family Court to whom this work may be assigned by the Principal Judge of the
Family Court.

24. Date of giving direction.—One day in a week shall be designated by the Principal Judge for the giving of such
directions.

25. Presence of Counsellor in Court.—On the date fixed for giving directions, the Principal Counsellor or such
other Counsellor designated by him shall attend the Court of the Judge giving directions.

26. Direction lo attend Counsellor.—When giving directions, the Judge shall, in consultation with the Principal
Counsellor or such other Counsellor who may be present in Court, direct the parties to attend a specified
Counsellor for the purpose of counselling.

27. Selection of Counsellor.—Such Counsellor shall be chosen bearing in mind the convenience of the parties,
their special requirements and the area in which the unit to which that Counsellor is attached is located.

28. The procedure before the Counsellor, the powers, functions and duties of Counsellors and the protection
granted to them in the discharge of their duties shall be as prescribed in the Family Court Rules, 1987. The reports
to be submitted by the Counsellor to the Family Court shall also be as prescribed in the said Rules.

Hearing of Petitions in Court

29. Filing memorandum in Court.—On the proceedings before the Counsellor coming to an end and on the
Counsellor filing a memorandum in the petition setting out the outcome of the proceedings before him, the Registrar
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

shall call a meeting of the parties to fix a date of hearing of the petition. Intimation of such meeting shall be given to
the parties by registered post or personally.

30. Meeting before Registrar.—At the meeting so fixed the Registrar shall fix a date of hearing after consulting
both the parties.

31. Ascertaining time to be taken in hearing.—Registrar shall also ascertain from the parties the approximate
time to be taken by each party before the Court for the hearing of the matter. On the date of hearing, the time so
ascertained shall be kept free for the disposal of the matter. Such time shall be kept available on the following
consecutive working days also if the matter is likely to take more than a day.

32. Consequences of absence before the Registrar.—In the event of any party remaining absent at the meeting
called by the Registrar, the Registrar shall fix such date of hearing as he may deem fit. Registrar shall fix a date at
least four weeks after the date of the meeting.

33. Placing the petition on the board of the Court.—On the date so fixed by the Registrar the petition shall be
placed on the board of the Court for hearing and final disposal. The time allotted to the parties shall also be
indicated on the board.

34. Adjourned date of hearing.—Any party finding the date fixed by the Registrar unsuitable for any reason may
get it altered by the Registrar after notice to the other side not less than two weeks before the scheduled dale of
hearing.

35. Registrar not to alter date.—The Registrar shall not ordinarily alter the date when the date has been fixed in
the presence of both the sides.

36. Adjournment by the Court.—The petition so fixed shall not be adjourned by the Court unless there are
exceptional circumstances justifying such adjournment and unless they are such as could not have been foreseen
when the date of hearing was fixed before the Registrar. The Court shall record its reasons for adjourning a matter.

37. Permission for Representation by a lawyer.—The Court may permit the parties to be represented by a
lawyer in Court. Such permission may be granted if the case involves complicated questions of law or fact, as if the
Court is of the view that the party in person will not be in a position to conduct his or her case adequately or for any
other reason. The reason for granting permission shall be recorded in the order. Permission so granted may be
revoked by the Court at any stage of the proceedings if the Court considers it just and necessary.

38. Time for making application.—An application by a party for being represented by a lawyer in Court shall be
made by such party to the Court after notice to the other side. Such an application shall be made not less than two
weeks prior to the date fixed for hearing of the petition.

39. Application not to be entertained at the hearing.—Such an application shall not be entertained after the
petition is placed for hearing on the daily board of the Court, unless there are exceptional circumstances justifying
such late application.

40. Independent legal representation of a Minor.—The Court may appoint a lawyer to represent independently
any minor affected by litigation before the Court. The Court may give suitable directions regarding fees to be paid to
such a lawyer.

41. The Court may appoint a lawyer amicus curiae to assist the Court in the discharge of its duties.

42. Tape-recording of evidence.—Evidence given before the Court shall be tape-recorded.

43. Memorandum of evidence.—The Court shall also prepare a memorandum of substance of what the witness
deposes as prescribed under section 15 of the Family Courts Act, 1984.

44. Transcript of tape-recorded evidence.—In the event of any appeal or revision being filed before the High
Court, a party may within thirty days thereafter apply to the Court for transcription of the tape-recorded evidence.
Such transcription shall be supplied to the party concerned on payment of prescribed fees.

44A. An order passed under section 125 of the Code of Criminal Procedure for maintenance allowance can be
 Page 55 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

executed by the Court by attachment of salary as provided in section 60 and Order XXI of the Code of Civil
Procedure in addition to the mode of recovery provided in sub-section (3) of section 125 of the said Code:

Provided that rules 37 to 40 (both inclusive) or Order XXI of the Code of Civil Procedure shall not be resorted to.

45. Provisions of Code of Civil Procedure and Code of Criminal Procedure to apply.—Save as aforesaid, the
provisions of the Code of Civil Procedure or the Code of Criminal Procedure, as the case may be, shall apply to the
proceedings before the Family Court.

46. A proceeding before the Family Court shall not become invalid by reason only of non-compliance with any of the
procedural requirements prescribed herein.

Interim Applications

47. Interim applications.—All interim applications to the Court shall be separately numbered as ‘Interim
Application No.......................In Petition No. ......................

48. Interim applications while matter is pending before Counsellor.—An interim application may be made even
while the matter is pending before a Counsellor.

49. Report from the Counsellor.—The Court may ask the Counsellor to submit an interim report for the purposes
of such an application before deciding an interim application. The Family Court Rules, 1987 relating to reports to be
submitted by Counsellors, shall mutatis mutandis apply to interim reports also.

Guardianship

50. Applications for Guardianship.—All petitions for guardianship other than applications over which the High
Court has jurisdiction, shall be filed before the Family Court.

51. Contents of application.—Every petition for guardianship, when it is by a person other than the natural parent
or natural guardian of the child, shall be accompanied by a Home Study Report of the person asking for such
guardianship and his/her spouse, if any prepared by an approved Family Welfare Agency or a suitably trained
social worker. A list of such agencies and/or persons shall be prepared by the Principal Judge and Principal
Counsellor in consultation with the High Court.

52. Home Study in respect of application by a Foreigner.—When a Petition for guardianship is filed by a
Foreigner, the Court may accept a Home Study Report prepared by a recognised Family Welfare Agency of the
country where the foreigner resides.

53. Contents of Petition.—Every petition for guardianship shall be accompanied by,—

(i) Two recommendations from respectable members of the community.
(ii) A salary certificate or statement relating to the annual income of the petitioner and his financial position.
(iii) A health certificate of the petitioner and his/her spouse signed by a medical practitioner as also a medical
report regarding sterility of petitioner and/or spouse.
(iv) A health certificate of the child proposed to be taken in guardianship signed by a medical practitioner and
counter-signed by the petitioner.
(v) A Child Study Report of the child proposed to be taken in guardianship together with a photograph of the
child. Such report shall be in Form No. 3 prescribed in the Appendix when the child is institutionalised or
Court committed. The Report shall be counter-signed by the Petitioner.
(vi) A declaration from the proposed guardian and his/her spouse, if any, expressing their willingness to take
the child in guardianship.

54. Applications by Foreigners.—When a petitioner applying for guardianship is foreigner, the petition will also be
accompanied by—
(i) Permission from the country where the petitioner resides, for the child to enter the country;
 Page 56 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(ii) An undertaking by a recognised Family Welfare Agency of the country concerned to supervise the child in
the home of the petitioner until the child Ill legally adopted.

55. Adoption under the law of the country where the foreigner resides.—In granting a petition of a foreigner for
guardianship, the Court shall satisfy itself that the child can be legally adopted by a foreigner under the law of the
country where he/she resides.

56. Bond.—The Court may direct a foreign petitioner to give a bond for such amount as it may think proper for the
return of the child to India in the case of any difficulty.

57. Financial Security of the minor.—While granting a petition for guardianship, the Court may pass such orders
as it may deem proper for the financial security of the minor.

58. Consent of natural mother.—When the child proposed to be given in guardianship is an abandoned child, the
Court shall satisfy itself that the consent of the natural mother was taken at the time of abandonment of the child or
at any time thereafter to the child’s being given in guardianship to another person. The name of the natural mother
or natural father as also the consent letter from natural parent shall be treated as confidential. Consent letter shall
be kept in Court in a sealed cover.

59. Affidavit of the Institution.—When the child being placed in guardianship is an abandoned child from an
Institution for Abandoned Children, the institution shall file an affidavit selling out the circumstances under which the
child was abandoned. The affidavit shall also set out whether the institution is agreeable to the child being given in
guardianship to the petitioner.

60. Attempts for placement in India.—The Court, in its discretion, may not entertain a petition for guardianship by
a foreigner unless the Court is satisfied that adequate attempts for at least three months or such other period as the
Court deems fit have first been made to place the child in an Indian home. For this purpose the Court may ask the
petitioner to obtain a no-objection letter from a Voluntary Co-ordinating Agency or any other similar organisation
working for the placement of children in Indian homes.

61. Application by a related person.—When the proposed guardian is related to the child, the Court may
dispense with any of the above provisions.

62. Form of Order.—A guardianship order shall be in the Form No. 2 prescribed in the Appendix with such
modifications as may be required in each case. A photograph of the child signed by an authorised officer of the
Court shall he attached to the order.

63. Copy to be forwarded to Ministry of Social Welfare.—A copy of every guardianship order appointing a
foreigner as a guardian shall be forwarded to the Ministry of Social Welfare, Government of India and Social
Welfare and Cultural Affairs Department, Government of Maharashtra, Mantralaya, Bombay-400032.

64. The Court shall have the power to waive the requirements of any of the above rules relating to petitions for
guardianship in a suitable case.

65. In case of a child placed in guardianship the Court may, at any time direct a Counsellor attached to the Court to
supervise the placement of the child and submit a report to report thereon to the Court in such manner as the Court
may deem fit.

APPENDIX

FORM NO.1

In The Family Court at..............................................................................................................................

Petition No..................................................................of 20.......................................................................

.........................................................................................................................................................Petitioner

versus
 Page 57 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

To

.....................................................................................................................................................(Respondent)

Whereas the abovenamed petitioner has instituted a Petition against you, as set out in the petition (annex the
petition).

You are hereby required to file in this Court an appearance in person or a vakalatnama with the permission of the
Court within 3 weeks from the service of this summons upon you.

And whereas, the suit will be placed for directions on the board of the judge on the......................day
of......................20.....................

You are hereby summoned to appear before the Judge to answer the Petitioner’s claim on the
said.................................day of......................20......................at 11 O’ clock in the forenoon, and

Take notice that on the day before mentioned after hearing parties who appear, directions will be given by the
Judge as to the date of hearing before a Counsellor of the Family Court and other matters concerning the petition,
and

Take further notice that if you fail to file your appearance in person or a vakalatnama as directed above, or if you fail
to appear before the Judge on the day before mentioned the petition may be ordered to be set down on Board on
the same day or any subsequent day as “Undefended” and you will be liable to have a decree or order passed
against you.

Witness............................................Principal Judge at Bombay, aforesaid, this day

of......................20...........................................

Registrar,

Seal

The................................... day of........................20....

Petitioner/Advocate for the Petitioner.

Address.................................................................. .

FORM NO.2

In the Family Court at.............................

Petition No................................of 20......................

In the matter of the Guardians and Wards Act, 1890;

And

In the matter of the appointment of guardian of the person of a male/female minor......................an inmate
of......................petitioner.

UPON READING the Petition of............................................ the Petitioner therein, dated ...................... for the
appointment of the petitioner as the legal guardian to male/female minor......................born on......................and to
adopt the said minor as his son/daughter according to the Laws of......................and upon hearing in support of the
said Petition and upon ......................agreeing to comply with the guidelines contained in the judgment of the
Supreme Court of India in Writ Petition (Crl.) No. 1171 of 1982 (Laxmi Kant Pandy v. Union of India) AIR 1984 SC
469 [LNIND 1984 SC 30] and upon reading the Affidavit of......................consenting to the appointment of the
Petitioner as the legal guardian of the said minor and upon considering the representation made
by......................and upon hearing the......................the representative of the said......................and upon. the
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Petitioner ......................hereby giving an undertaking to this Honourable Court to produce the said minor whenever
required and further undertaking to communicate the address of the said minor to the authorities
of......................by......................of every year and further undertaking to take proper care, look after, educate and to
bring up the said minor as if she/he was a child of the Petitioner and further undertaking to treat the said minor on
an equal foot with his natural and/or adopted children, if any, in all matters of maintenance, education and
succession and before taking the said minor out of India the Petitioner further undertaking to execute a Bond either
personally or through his duly constituted attorney in India in favour of the Registrar of this Hon’ble Court in the sum
of Rs......................to repatriate the said minor to India by air should it become necessary for any reason to do so
and further undertaking to adopt the said minor ‘Within a period of two years after the arrival of the said minor to his
home according to the Laws of....................and further undertaking to submit to this Honourable Court every three
months for the first two years and every six months for the next three years progress report of the said child
(alongwith his/her recent photograph) made or verified as correct by the Organisation which made the Home Study
Report herein regarding the said minor’s moral and material progress and her adjustment in the Petitioner family
with information of the date of arrival of the said minor from India to the petitioner’s Home and the true copy of the
Adoption Order with the copies of the said :reports to the said......................and further.....................the agency who
has submitted the same study report of the Petitioner agreeing that in case of disruption of the Petitioner’s family
before adoption the said Agency shall take care of the minor and find a suitable alternative placement for it with the
approval of the Institution whose inmate the minor is and report such alternative placement to the Honourable Court
and also to the......................I do order the Notice under section 11 of the Guardians and Wards Act, 1890 be and
the same is hereby dispensed with and I do further order that the Petitioner......................be and he is hereby
appointed guardian without security and without remuneration of the said minor............................................born
on......................whose latest photograph duly certified as such......................and counter-signed by an Officer of
this Honourable Court is attached hereto and marked as Exhibit ‘A’ and now in the custody and care of the
authorities of the said......................and I do further order that after executing the Bond as aforesaid the
Petitioner......................and he is hereby granted leave to remove the said minor from the jurisdiction of this Hon’ble
Court and to take him/her away to or......................be wherever he may desire and for the purpose make an
application to the passport authorities or any other authorities to take away the said minor out of the Jurisdiction of
this Honourable Court and I do hereby lastly order that the Petitioner herein do pay a sum of Rs......................to the
said......................towards their costs of the Petition.

Dated this......................day of......................20......................

(delete whatever is not applicable)

Judge.

Advocate for the Petitioner

EXHIBIT ‘A’

Certified latest photograph of male/

female minor.........................................

born on...................................................

()

Registrar,

Family Court.

CHILD STUDY REPORT

Information of the child to be placed in guardianship

Name of the child Passport Size Photo of the Child

Name of the Institution

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Address

PART I

1. Name of the child

2. Reference No. as per General Registrar of the Institution
3. Present, Age
4. Sex
5. Religion (If known)
6. Date of Birth (If available)
7. Place of birth (If available)

PART II

1. Petition No.
2. Name of the Petitioner
3. Complete address of the Petitioner

PART III

(LEGAL DATA)

1. Name of the Committing Court

2. Age of the child at the time of commitment
3. Date of order of commitment
4. Period of commitment
5. Final date of release
6. Section of the Bombay Children Act
7. Date of admission to your institution

Please enclose a copy of the Court Commitment Warrant.

Please enclose a copy of the report of the Probation

Officer which he/she has submitted to the Juvenile Court at the time of Commitment of the child.

Part III to be filled in for Court Committed Children only.

PART IV

(SOOAL DATA)

1. How the child came to your institution:—

(a) Admitted directly
(b) Vacancy was reserved and then got committed
(c) Transfer from any other institution and if so which one.
(d) Any other source
2. Circumstances under which the child came to the original institution
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

3. Reasons for seeking protection in the institution

4. Information about the relatives
5. In case they are alive, have they agreed to give away the child in adoption guardianship and if so, whether
written consent has been obtained.
6. Whether the relatives have established any contacts with the child after his/her admission to your
institution.
7. If the child is purely destitute, give factors which will show that—
8. Any other information on which you would like to add.

PART V

(BEHAVIOURAL OBSERVATIONS)

1. How long the child is with you in your institution.

2. Attitude towards other inmates.
3. Relationship towards relatives, staff and other adults
4. Intelligence (if and where possible, I.Q. report should be enclosed)
5. General personality and description of the child
6. Play activity and any specific talent
7. Observer’s impressions about the child
8. Please indicate how the parent plan of rehabilitation will be useful to the child taking into consideration the
child’s needs and temperament.
9. If the child is school-going give a detailed report about his/her standard, attendance, general interest in
studies, progress and defects, if any.
10. Any other information

PART VI

Physical and medical report form enclosed.

PART VII

1. Have you reviewed the Home Study Report of the adoptive parents/guardians and do you feel that the
placement of this child with this family is suitable?
2. Have the adoptive parents seen the details of child whom they wish to bring up and have they approved of
the child after knowing the general conditions physical or mental defect, etc., If so, please give a copy of
the certificate wherein the adoptive parents/guardians have given their consent in writing that they have
examined the Child Study Report and accepted the proposed child.

PART VIII

I, Shri/Smt......................Superintendent......................hereby certify that the information given in this form about the
child is correct.

I also enclose herewith the certificate/attested copies of the following documents:—

1. Copy of the Court Warrant.
2. Copy of the report of the Probation Officer.
3. Consent of the parents to give away the child.
4. Consent of the adoptive parents to accept the child.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Signature........................

Name...............................

Place:

Date: Designation....................

High Court, Appellate Side,

Bombay......................20...... Additional Registrar

(Inspection).

Note.—Date of departure of the child from the country should be conveyed to the Director of Child Welfare and
consulting agency for the purpose of follow-up.

NOTIFICATIONS

Law and Judiciary Department

Mantralaya, Bombay-400 032.

Date: 3rd October, 1989.

Family Courts Act, 1984.

No. CRC 4785/45 (9) XL.— In exercise of the powers conferred by sub-section (1) and (2) of section 3 of Family
Courts Act, 1984 (66 of 1984) and of all other powers enabling it in this behalf, the Government of Maharashtra,
after consolation with the High Court of Judicature at Bombay, with effect from the 7th day of October, 1989, hereby
establishes a Family Court at Bombay for the area of the Municipal Corporation of Greater Bombay, for the purpose
of exercising the jurisdiction and powers conferred by the said Act.

By order and in the name of the Governor of Maharashtra.

Family Courts Act (66 of 1984), section 3(1) and (2)—Establishment of Family Court at Poona from 27-1-1989 and
its jurisdiction. In exercise of the powers conferred by sub-section (1) and (2) section 3 of Family Courts Act, 1984
(66 of 1984) (hereinafter referred to as “the said Act”) and of all other powers enabling it in this behalf, the
Government of Maharashtra, in consultation with the High Court of Judicature at Bombay, with effect from the 27th
day of January 1989, hereby establishes a Family Court at Poona, comprising the area of the Municipal Corporation
of the City of Poona and the Cantonment areas of Poona and Khadki for the purpose of exercising the jurisdiction
and powers conferred by the said Act.

(Mahharashtra Government Gazette dated 16-2-1989, Pt. 4A, p. 109)

(13) THE FAMILY COURTS (ORISSA) RULES, 1990

S.R.O. No. 963/99.1—In exercise of the powers conferred 17y section 23 of the Family Courts Act, 1984 (66 of
1984) the State Government after consultation with the High Court of Orissa, do hereby make the following rules,
namely:—

1. Short title and commencement.—(1) These rules may be called the Family Courts (Orissa) Rules, 1990.

(2) They shall come into force on the dale of their publication in the Official Gazette.

2. Definitions.—In these rules, unless the context otherwise requires—

(a) “Act” means the Family Courts Act, 1984;
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(b) “Centre” means a counselling Centre;

(c) “Court” means the Family Court established under section 3 of the Act;
(d) “Principal Counsellor’ means the Principal Counsellors appointed by the High Court and includes
Counsellor or Counsellors, as the case may be, where principal Counsellor is not appointed;
(e) “Prescribed” means prescribed by rules made under the Family Courts Act, 1984 (Act 66 of 1984);
(f) “Stale Government” means the Government of Orissa;
(g) “High Court” means the High Court of Orissa;
(h) “Service” means the Orissa Superior Judicial Service of selection grade;
(i) All other words and expressions used herein but not defined shall have the meaning respectively assigned
to them in the Act.

3. Terms and conditions of service of the Judges of Family Courts.—(a) A Judge of a Family Court shall hold
office for a term of five years from the date he assumes office or until he attains the age of superannuation,
whichever is earlier.

(b) A Judge of a Family Court shall be entitled to the selection grade of pay and allowances and leave as
admissible to an officer of the selection grade in the Orissa Superior or Judicial Service.

(c) Other conditions of service of a Judge of the Family Court shall be those applicable to officers in the cadre of 10
district Judges (Senior branch).

4. The number and categories of other employees of a Family Court.—(a) The number and categories of other
employees of a Family Court shall be as specified in the Schedule appended to these rules.

(b) The conditions of service of the employees shall be that as applicable to their counterparts under the Orissa
District and Subordinate Courts Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1969.

5. Appointment of Counsellors.—Principal Counsellor and other Counsellors attached to the Counselling Centre
shall be appointed by the High Court in consultation with one or more professionally qualified experts in family and
child welfare, preferably working with a recognised institution of social science or social work.

6. Qualifications of Counsellor.—Persons having a Master’s degree in ‘[Social Science preferably in Sociology or

Psychology] with a minimum experience of 3 years in family Counselling shall be eligible for appointment as
Counsellors:

Provided that where such persons are not available, persons above the age of thirty-five working in the field of
social service and welfare activities and engaged in promoting the Welfare of Family and Child Care with a degree
in 2[Social Science preferably in Sociology or Psychology] shall be eligible for such appointment.

7. Counsellor to fix time and dale for Counselling.—The Counsellor appointed to advise the parties shall fix the
time, place of appointment and the parties so noticed shall be bound to attend.

8. Functions of a Counsellor.—Counsellor entrusted with any petition shall assist and advise the parties regarding
the settlement of subject-matter of dispute between the parties or any part thereof. The Counsellor shall also help
the parties in arriving at a reconciliation.

9. Home visits.—The Counsellor in the discharge of his duties shall be entitled to pay visits to the house of any of
the parties.

10. Interviews.—The Counsellor in the discharge of his duties shall be entitled to interview relatives, friends,
acquaintances of parties or any of them.

11. Information from employer.—The Counsellor in the discharge of his duties may seek information as he may
deem fit from the employer of any of the parties.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

12. Reference to experts.—The Counsellor may refer the parties to an expert in such areas as medicine or
psychiatry, if he considers it desirable.

13. Panel of experts.—The Judge of the Family Court in consultation with the Principal Counsellor shall prepare a
panel of medical and other experts who shall be paid fees and expenses (including T.A.) as per the scale of fees
and expenses fixed by the Government from time to time, by an order made in this behalf.

14. Confidentiality of informations.—(a) Information gathered by the Counsellor, any statement made before the
Counsellor or any notes or reports prepared by the Counsellor shall be treated as confidential and shall not be
disclosed to any Court or any other person except with the consent of both the parties.

(b) Such notes, statements, information, report or any material lying with the Counsellor shall be kept in sealed
packets by the Counsellor and shall not form a part of evidence before the Court.

15. Counsellor not to give evidence.—The Counsellor shall not be asked to give evidence in any Court in respect
of the information, statements notes, or report:

Provided that the Counsellor may submit to the Court a report relating to the home environment of the parties
concerned, their personalities and their relationship with their child or children in order to assist the Court in
deciding the question of custody or guardianship of any child or children of the marriage:

Provided further that, the Counsellor may also submit to the Court a report relating to home environment, income or
standard of living of the party or parties concerned in order to assist the Court in determining the amount of
maintenance and/or alimony to be granted to one of the parties.

16. Report from the Counsellor.—The Court may also request the Counsellor to submit to it a report on any other
subject in order to assist the Court in adjudicating upon the matter before it or any part thereof.

17. Supply of copies.—A copy of the report submitted under rules 15 and 16 may be supplied to the parties on
such request being made by the parties.

18. Right of the parties to make submissions.—The parties shall entitled to make their submission on the report.

19. Counsellor not to be cross-examined.—The Counsellor shall not be called upon to give evidence and shall
not be cross-examined in any Court in respect of the report so made.

20. Submission of memorandum.—Save as provided in these rules, the Counsellor shall submit a brief
memorandum to the Court informing the Court of the outcome of the proceedings before him.

21. Settlement before Counsellor.—When the parties arrive at a settlement, before the Counsellor, relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
countersigned by the Counsellor. The Court shall pronounce a decree in order in terms thereof unless the Court
considers the terms of the settlement unconscionable or unlawful or contrary to public policy.

22. Counsellor’s right to supervise custody of children.—The Counsellor shall be entitled to supervise the
placement of children in the custody of a party and shall be entitled to make surprise visits to the home where the
child resides. ln the event of the Counsellor coming to a conclusion that any alteration is required on the
arrangement relating to custody of a child or children, the Counsellor shall make a report to the Court in that
connection. Thereupon the Court may, after giving notice to the parties to appear before it, pass orders after
hearing the parties, in that connection as the Court may deem fit.

23. Counsellor’s right to supervise reconciliation.—The Counsellor shall also be entitled to supervise, guide and
assist the reconciled couples (on the request of either party) even if the matter is no longer pending in Court.

24. Co-habitation in the course of reconciliation proceedings.—Co-habitation between the parties in the course
of conciliation proceedings before the Counsellor or Court shall not be deemed to be a condonation of the
matrimonial offence.

25. Failure to attend counselling.—If one of the parties fails to attend the Counsellor on the dale and at the time
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

so fixed, the Counsellor may fix another date and time and confirm the absent party accordingly by registered post.
If the said party does not attend the counselling Centre on such adjourned date the Counsellor may make a report
to the Court stating that one or both the parties have failed to attend the counselling Centre. On such report being
made, the Court may proceed with the matter without prejudice to other powers of the Court to take action against
the defaulting party.

26. Counselling centre.—(a) There shall be attached to each Family Court a Centre to be known as “the
counselling centre of the Family Court”.

(b) Each such Centre may have a Principal Counsellor and shall have as many Counsellors as may be determined
by the High Court.

(c) The Counselling Centres may be divided into different units and may be located in the Court premises or in such
other place or places as the High Court may direct but not far away from the Family Court.

27. Party entitled to legal advice.—A party will be entitled to take legal advice at any stage of the proceeding11
either before the Counsellor or before the Court. A party in indigent circumstances will be entitled to free legal aid
and advice.

28. Panel of lawyers for free legal advice.—The Court shall maintain a panel of lawyers willing to render free
legal aid and advice. A party entitled to free legal advice will be entitled to select any of the lawyers from the said
panel provided the lawyer is available and willing to accept the case.

29. Conditions of engagement.—The terms and conditions of engagement of such a lawyer and the
remuneration, if any, to be paid to him, will be as laid down in the Orissa State Legal Aid and Advice Scheme, 1981
or any modification thereafter.

30. Circumstances entitling a party to legal aid.—The circumstances under which such legal aid will be made
available to a party shall be as laid down by the High Court.

31. List of institutions, agencies, etc.—The principal Judge in consultation with the Principal Counsellor shall also
prepare a list of institutions, organisations or agencies working in area of family welfare, child guidance,
employment or in any other area that he may deem fit, in order to enable a Counsellor or parties to obtain the
assistance of such an institutions, organisation or agency and may also lay down the manner and the conditions for
association of such institutions, organisations or agencies with a Family Court.

32. Assistance of other organisations.—The Counsellor may take the assistance of such an organisation,
institution or agency in the discharge of his duties.

33. Fee for Counsellor.—Such Counsellor shall be entitled to assisting fee of rupees one hundred per day.

34. Fees and expenses of medical experts.—The medical experts or other experts referred to in the Rules,
whose, services are secured for assisting the Family Court shall be paid prevailing and daily allowances at the rate
admissible to the official and non-official witnesses appearing before the Criminal Courts for giving evidence.

35. Institution of proceedings.—All proceedings instituted before the Family Court shall be by way of petition, but
however, in respect of applications under Chapter IX of the Code of Criminal Procedure, 1973 (Central Act 2 of
1974) the provisions of that Code will apply.

36. Filing of a petition.—Every petition or application shall be accompanied by as many clear, authenticated
copies thereof as there are respondents to be served and by 3 additional copies for the use of the Court and by
such papers as are referred to with petition of application. One copy of such petition or application shall be
forwarded by the Chief Ministerial Officer of the Family Court to the principal Counsellor.

37. Provisions of C.P.C. and Cr. P.C. to apply.—Save as aforesaid, the provisions of the Civil Procedure Code,
1908 and of the Code of Criminal Procedure, 1973 as the case may be, shall apply to the proceedings before the
Family Court.

38. Application for guardianship.—All applications for guardianship other than applications over which the High
Court has jurisdiction, shall be filed before the Family Courts.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

39. Assistance of Social Welfare Agencies.—In deciding a guardianship petition, the Court may take the
assistance of a social welfare agency or agencies for the scrutiny of the petition. The Court may also ask such an
agency for its report thereon and pay fees at the prescribed rate by the High Court to the said agency for its work.

SCHEDULE

1. Sheristadar
2. Senior Stenographer
3. Senior Clerk
4. Junior Clerk
5. Jamadar
6. Court Peon
7. Orderly Peon.

(14) THE FAMILY COURTS (PATNA HIGH COURT) RULES, 20001

In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (Act 66 of 1984) the High Court of
Judicature at Patna hereby makes the following rules for the Family Courts in the State of Bihar:—

1. Short title, commencement and application.—(i) These rules may be called the “Family Courts (Patna High
Court) Rules, 2000.”

(ii) These rules shall come into force on the date of their publication in the Official Gazette.

(iii) These Rules shall apply to the Family Courts established in the State of Bihar under the Family Courts Act,
1984.

2. Definitions. —In these rules unless the context otherwise requires,—

(a) ‘Act’ means the Family Courts Act, 1984.
(b) ‘Centre’ means a counseling centre and includes office of any association of counsellors.
(c) ‘Court’ means the Family Court established under section 3 of the Act.
(d) ‘Petition’ includes application under Chapter IX of the Code of Criminal Procedure, 1973 unless the context
otherwise requires.
(e) ‘Principal Counsellor’ means Principal Counsellor appointed by the High Court and, where Principal
Counsellor is not appointed includes Counsellor or Counsellors as the case may be.
(f) ‘Rules’ means the rules framed by the Government of Bihar in consultation with the High Court under
section 23 read with sections 5 and 6 of the Family Courts Act, 1984.
(g) Words and expressions used but not defined in these rules shall have the meanings assigned to them in
the Family Courts Act, 1984 or the Code of Civil Procedure, 1908, as the case may be.

3. Working hours of Courts and their offices.—The working hours of the Courts and their offices shall be the
same as the Civil Courts in the State of Bihar:

Provided that the High Court may fix different working hours for office and sitting of the Courts located in different
districts:

Provided further that the Courts may with the consent of the parties and by order in writing hold sitting on holidays
or beyond the normal working hours.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

4. Place of sitting of Family Courts.—(1) The Court shall ordinarily hold its sitting at such place or places, as the
High Court may by notification in the Official Gazette specify in this behalf.

(2) If the Judge is of the opinion in any particular case for reasons to be recorded in writing that it will tend to
general convenience of the parties or the witnesses or for any other purpose to hold sitting at a place other than its
ordinary place of sitting, he may hold the sitting at such place after notice to the parties and such other persons as
he may consider necessary.

5. Institution of proceeding.—(i) The case will be instituted in the Court of Principal Judge or such other Judge, as
may be designated by the Principal Judge, on the basis of plaint or application presented personally or by an
advocate or sent by registered post with acknowledgment due to such Judge.

(ii) Where a case is instituted on the basis of plaint or application received by registered post but transferred to
another Court, intimation of transfer to the particular court shall be sent to the party by registered post on the
address furnished in the plaint or application.

6. Transfer of suit or proceeding.—The Principal Judge may at any time transfer any suit or proceeding pending
before him to the file of any other Judge and may likewise withdraw any suit or proceeding and try the same
himself.

7. Contents of the Plaint/application.—In addition to the particulars required to be furnished under Order VII, rule
1 of the Code of Civil Procedure, 1908 and section 20(1) of the Hindu Marriage Act, 1955 every plaint/application
for Judicial separation, nullity of marriage, divorce and restriction of conjugal rights, shall contain the following
particulars:—
(a) Place and date of marriage.
(b) The name of the parties and their occupation, places and address where the parties resided and cohabited
including the place where they last resided together.
(c) The names of the children of the marriage and dates of their birth, if any.
(d) The particulars of the previous suit or proceeding between the parties, if any.
(e) If the plaint/application is for restitution of conjugal rights, the date on or from which and the circumstances
under which, the respondent withdrew from the society of the petitioner.
(f) If the petition is for judicial separation, the matrimonial offence alleged or other grounds upon which the
relief sought with full particulars so far as known to the petitioner e.g.—
(i) In the case of desertion, the date and the circumstances under which it began.
(ii) In the case of cruelty or sexual intercourse with another person other than his or her spouse,
particulars of the act of cruelty or sexual Intercourse together with the name and address of the
persons with whom the respondent had sexual intercourse so far as known to the petitioner.
(iii) In the case of virulent leprosy or venereal disease In a communicable form, the time when the disease
began to manifest itself, the nature of curative steps taken, the name and address of the person or
persons who treated such disease, and in the case of venereal disease, that it was not contacted from
the petitioner, and
(iv) In the case of unsoundness of mind, the time when such unsoundness began to manifest itself, the
nature of curative steps taken, the name and address of the person or persons who treated for such
unsoundness of mind.
(g) If the petition is for divorce, the matrimonial offence alleged or other grounds upon which the relief is
sought with full particulars so far as known to the petitioner, e.g.—
(i) In the case of voluntary sexual Intercourse with a person other than his or her spouse after marriage,
the particulars of the act or acts, occasion and the place when such act or acts was or were committed
together with the name and address of the person or persons with whom sexual intercourse was
committed.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(ii) In the case of incurable unsoundness of mined, the time when such unsoundness began to manifest
itself the nature and period of curative steps taken, the name and address of the person or persons
who treated for such unsoundness of mind.
(iii) In the case of virulent and Incurable form of leprosy or venereal disease in a communicable form, the
time when the disease began to manifest itself, the nature of curative steps taken with the name and
address of the person or persons who treated for such disease, and in the case of venereal disease,
that it was not contracted from the petitioner, and
(iv) in the case of presumption of death, the place where the parties last lived together and the date and
the place when the respondent was last seen or heard of as alive, and the steps, if any, taken to
ascertain his or her whereabouts.
(h) If the petition is for a decree of nullity of marriage on the grounds specified in clause (c) or clause (d) of
sub-section (1) of section 12 of the Hindu Marriage Act, 1955, the time when the facts constituting the
grounds were discovered, and whether or not sexual intercourse with the consent of the petitioner took
place after the discovery of those facts.
(i) Property mentioned in section 27 of the Hindu Marriage Act, 1955, if any.
(ii) Whether marriage has been registered under section 8 of the Hindu Marriage Act, 1955.
(i) The petition shall at the end set out the relief or reliefs sought including any claim for.
(i) Custody, maintenance and education of children,
(ii) Permanent alimony and maintenance, and
(iii) Costs.

Where a claim is made under clause (ii) above, the petition shall specify the value of the respondent’s property and
his or her income, the particulars of his or her own property and source of income.

8. Preliminary Examination.—(i) Before issuing process to the respondent, the Judge may discuss the case with
the petitioner and if he thinks fit, for reasons to be recorded, associate any Counsellor or association referred to in
section 5 of the Act for this purpose.

(ii) In other cases, notice shall be issued to the respondent intimating the date and time for appearance in person.

9. Service of Processes.—All processes shall be served in the manner laid down in the Code of Civil Procedure,
1908, personally on the respondent except in exceptional cases where Judge orders otherwise.

10. Settlement.—For the purpose of amicable settlements, the Courts shall maintain separate lists of—
(a) Institutions and organisations engaged in social welfare together with the names and addresses of
representatives of such Institutions and Organisations.
(b) Persons professionally engaged in promoting family welfare with their addresses.
(c) Persons working in the field of social welfare with their addresses.

11. Procedure for arriving at settlement.—(i) In every suit or proceeding the Judge may at any stage direct the
parties to approach a Counsellor on the date and time fixed or on adjourned dates and time, as may be fixed by
him, for counselling and amicable settlement of the dispute.

(ii) In case of default, the counsellor may refer the matter to the Judge and thereupon, the Judge may pass such
orders including award of cost as the circumstances of the case may require.

(iii) The Counsellor in discharge of his duties may visit the homes of the parties, interview, their relatives, friends
and employer, if any, and seek such information as may be deemed necessary from them and with the prior
permission of the Judge may also refer the parties or either of them to any expert in the field of medicine or
psychiatry or seek such assistance of any institution, organisation or persons referred to in section 5 of the Act.

(iv) The Counsellor shall maintain a diary of cases assigned to him, which shall contain the gist of the steps taken in
the particular case.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(v) Information gathered by the Counsellor or any statement made before him or any note or report prepared by him
shall be treated as confidential and he shall not be called upon to disclose such information, statement, note or
report, nor he shall be asked to give evidence in respect of such information, statement, note or report in any Court
except with the consent of both the parties.

(vi) The Counsellor shall submit to the Judge a report containing the details of the homes of the parties, their
personal income and status and their relationship with the child/children in order to assist the Judge in deciding the
question of custody or guardianship of any child/children of the marriage or amount of maintenance/alimony.

(vii) The Judge may ask the Counsellor to submit report on any other matter which the Judge considers necessary.

(viii) Copy of the report may be supplied to the parties on request.

(ix) The parties will be entitled to make their submissions on the report.

(x) Where the parties arrive at a settlement relating to the dispute or any part thereof before the Counsellor, such
settlement shall be reduced to writing and signed by them and counter-signed by the Counsellor who shall
immediately forward the same to the Court concerned.

(xi) Co-habitation between the parties in course of counselling or conciliation proceeding will not be deemed to be
condonation of the matrimonial offence.

12. Proceedings in Court.—(i) On the date fixed for appearance, whether the defendant appears or not, the plaint,
petition or application, as the case may be, shall be placed for direction before the Judge seized of the case.

(ii) Where in course of the conciliation proceeding a settlement is arrived at with respect to whole or part of the
dispute on receipt of the settlement papers the Judge shall pronounce the decree/order in terms thereof with
respect to whole or part of the dispute, as the case may be, unless he considers the terms as unconscionable or
unlawful.

(iii) Where the parties fail to arrive at any settlement, the Judge shall fix the case for evidence and on the date so
fixed prepare memorandum of substance of evidence as provided under section 15 of the Act.

(iv)(a) On the request of either party, and if the Judge thinks it fit and proper, the evidence may be permitted 1o be
recorded on a tape-recorder.

(b) Such evidence recorded on tape shall be part of the record and kept in safe custody of the Court.

(c) Where an appeal or revision is filed against the Judgment of the Court, a party may apply for transcript copy of
such evidence, which shall be supplied to him on payment of the prescribed fee.

13. Supplementary Provisions.—(i) The Judge may require the counsellor to supervise, guide or assist the
reconciled couples even after disposal of the case for such further period as he considers fit and proper.

(ii) The Judge may require the counsellor to supervise the condition of the child in custody of a party and to pay
supervised visits to the home where the child resides even, in a case where the decree or order has been passed.

(iii) The Counsellor may after such visit, submit report to the Judge and suggest modifications whereupon the Judge
may pass such order as he deems fit and proper after notice to the parties.

14. Representation by Legal practitioners.—(i) The Judge may permit the parties to be represented by legal
practitioner keeping in view the nature of the controversy, the points involved, the education, undertaking and other
relevant considerations funning the background of the parties, after recording brief reasons for granting such
permission.

(ii) Permission may be revoked at any stage of the proceeding if the Judge considers it fit and proper for expeditious
disposal of the proceeding.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(iii) Where such application is made for representation by legal practitioner, before passing any order the Court shall
give notice to the either side.

(15) THE PUNJAB AND HARYANA HIGH COURT FAMILY COURTS RULES,
20051
In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (Central Act 66 of 1984), and all
enabling provisions in that behalf, the Punjab and Haryana High Court hereby makes the following rules, to regulate
the proceedings of the Family Courts in the States of Punjab, Haryana and Union Territory of Chandigarh.

1. Title.—(i) These rules may be called the Punjab and Haryana High Court Family Courts Rules, 2005.

(ii) They shall come into force on the date of publication in the Official Gazette and shall apply to the Family Courts
in the States of Punjab, Haryana and Union Territory of Chandigarh, established under the Family Courts Act, 1984.

2. Definitions.—(i) In these rules unless there is anything repugnant to the subject or context,—
(a) “Act” means the Family Courts Act, 1984;
(b) “Family Court” means a Family Court established under section 3 of the Act; and
(c) “High Court’ means the Punjab and Haryana High Court.

(ii) Words and expressions defined in the Act shall wherever used in these rules, be construed to have the same
meaning assigned to them by the Act.

3. Sitting of Courts.—(i) The Family Court shall hold its sittings at such place as the High Court may specify from
time-to-time.

(ii) Subject to general superintendence of the High Court a Family Court may hold its sittings at places other than its
ordinary place of sitting and also on any authorised holiday where the Presiding Judge is of the opinion that such a
Court will tend to the general convenience of (a) the parties; (b) the witnesses; or (c) of Institutions or Organisations
or persons referred to in section 5 of the Act.

(iii) A Family Court may after consulting parties (if present) and for any reason considered sufficient by it, hold or
continue its sitting outside normal working hours, whether on any working day or on authorised holidays.

(iv) No act of Family Court shall be invalid by reason of holding or continuing its silting on any holiday or during
hours outside normal working hours or at any place other than the principal seat.

4. Working Hours.—(i) The working hours of the Court shall be the same as that of Civil Courts subordinate to the
High Court as provided in the High Court Rules and Orders or as may be directed by the High Court.

(ii) A Family Court may hold silting on holidays and outside normal working hours, if the Judge considers it
necessary to do so, in the circumstances of a case, with prior intimation to the parties and to such other person or
persons as the Judge may consider necessary.

5. The Calendar of the Court shall be the same as that of the Civil Courts.

6. The administrative control over the Family Courts shall vest on the High Court.

7. Institution of Proceedings.—All causes for the relief(s) envisaged under the provisions of the Act shall be by
way or petition(s).

8. A petition shall be filed in triplicate in Punjabi in Gurmukhi script or in English in the Family Courts established in
the State of Punjab, in Hindi in Devnagri script or in English in the Family Courts established in the State of
Haryana, in Punjabi in Gurmukhi script or in Hindi in Devnagri script or in English in the Family Courts in Union
Territory, Chandigarh.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

9. Contents of petition.—In addition to the particulars required to be given under Order VII, rule (1) of the Code of
Civil Procedure, 1908 and section 20(1) of the Hindu Marriage Act, 1955, every petition for restitution of conjugal
rights, judicial separation, nullity of marriage and divorce shall contain the following particulars—
(a) the date and place of the marriage;
(b) whether the petitioner and the respondent were Hindu by religion at the time of the marriage and whether
they continue to be so up to the date of the filing of the petition;
(c) the status and places of residence of the parties to the marriage before the marriage and at the time of
filing the petition.
(d) the principal permanent address where the parties have cohabited, including the address where they last
resided together;
(e) whether there have been previous proceedings with regard to marriage by or on behalf of any party, if so,
the result of those proceedings;
(f) whether any children were born of the marriage and if so, the date and place of birth and the name and sex
of each child separately; and whether alive or dead;
(g) the matrimonial offences charged set in separate paragraphs with the times and places of their alleged
commission;
(h) if the petition is for divorce on the ground of adultery, it shall also state that—
(i) the petitioner has not in any manner been accessory to or connived at or condoned the adultery;
(ii) particulars as nearly as can be of the acts of adultery alleged to have been committed by the
respondent.
(i) if the petition is for divorce after the passing of a decree of judicial separation, it shall be accompanied by
an affidavit of the petitioner to the effect that he or she has not resumed cohabitation for a period of two
years or upwards after the passing of decree for judicial separation;
(j) property mentioned in section 27 of the Hindu Marriage Act, 1955, if any;
(k) the petition shall be set out at the end relief or reliefs, sought including any claim for—
(i) custody, maintenance and education of children;
(ii) permanent alimony, maintenance; and
(iii) costs.

Where a claim is made for maintenance and education of children, permanent alimony and maintenance, the
petition shall specify the annual or capital value of the respondent’s property the amount of his or her annual
earnings and other particulars relating to his or her financial resources and the particulars relating to the petitioner’s
income and other property.

10. A petition for dissolution of marriage by mutual consent may be jointly presented by the parties.

11. Every petition for divorce on any of the grounds mentioned in clauses (i) and (ii) of sub-section (lA) of section 13
of the Hindu Marriage Act, 1955 shall be accompanied by a certified copy of the decree for judicial separation or for
restitution of conjugal rights, as the case may be.

12. Service of Process.—Every notice/process shall be served in the manner prescribed under the Code of Civil
Procedure, 1908:

Provided that in the proceedings under Chapter IX of the Code of Criminal Procedure, 1973, the notice/process
shall be served in the manner prescribed thereunder.

13. Association of Counsellor.—The Family Court may associate Counsellor or Counsellors for reconciliation or
settlement.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

14. The Family Court may, at any stage of the proceedings, take assistance of any of the relatives of the parties,
social workers or experts for bringing about reconciliation/settlement between the parties.

15. Duties of the Counsellors.—The Family Court may direct the Counsellor—
(a) to meet the parties;
(b) to interview the relatives, friends or acquaintances of the parties;
(c) to seek such information as he may deem fit from the employer, if any, of the parties.

16. Secrecy to be maintained by the Counsellor.—The information gathered by the Counsellor or any note or
report prepared by him or any statement made before him shall be treated confidential. The Counsellor shall not be
called upon to disclose such information, statement, notice or report to any Court except with the written consent of
the party concerned. However, as and when directed by the Family Court, the Counsellor shall submit a report
relating to home environment of the parties, their personalities and relations with their child or children in order to
assist it in deciding the question of custody or guardianship of such child or children to maintenance/alimony to be
granted to either of the parties.

17. The Family Court may request the Counsellor to submit a report on any other subject which may be necessary
for adjudicating the matter pending before it.

18. The Counsellor shall not be called upon to give evidence in the Family Court in respect of any information,
notice or report prepared by him or the statement given by the parties before him.

19. Settlement before the Counsellor.—When the parties to the dispute arrive at a settlement before the
Counsellor, the same shall be reduced into writing and shall be signed by the parties and counter-signed by the
Counsellor. Such settlement shall be submitted to the Family Court which shall, after hearing the parties and
satisfying itself that the settlement is just and fair, pass decree in terms thereof or with such amendment or
modification, as may be considered necessary in the interest of justice.

20. Interim applications.—(i) All applications made for interim relief and other miscellaneous applications shall be
disposed of by the Family Court in accordance with the provisions of these rules.

(ii) For the purpose of deciding interim applications/miscellaneous applications, the Family Court may direct the
Counsellor to submit interim report.

21. Supply of copies.—Copies of every judgment/order passed by the Family Court finally disposing of the
petition/application for interim relief shall be supplied to the parties free of cost on an application made for that
purpose.

22. Counsellor’s right to supervise custody of children.—The Counsellor shall, if directed by the Family Court,
be entitled to pay surprise visit to the house where the child resides and submit report. The Family Court may then
pass appropriate order relating to the custody of the child, after notice to the parties.

23. The rules framed by the High Court in relation to subject-matter of suits or proceedings referred to in
Explanation appearing below section 7(1) of the Act, shall, as far as practicable and in so far as they are not
inconsistent with the Act and these rules, shall apply to the proceedings before the Family Court.

24. The rules framed by the High Court in the matter of payment of expenses to the witnesses pertaining to Civil
Court, shall apply to the proceedings before the Family Court.

25. The proceedings before the Family Court shall be treated as civil proceedings, but the provisions of the Code of
Civil Procedure, 1908 shall not apply to such proceedings and it shall be entitled to devise its own procedure in
accordance with the rules of natural justice.

(16) THE FAMILY COURTS (RAJASTHAN) RULES, 19911

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

G.S.R. 37—dared, 19th November, 19912—In exercise of the powers conferred by section 23 read with sub-
section (6) of section 4 and sections 5 and 6 of the Family Courts Act, 1984(Central Act 66 of 1984), the State
Government in consultation with the High Court of Judicature for Rajasthan hereby makes the following rules for
carrying out the purposes of the Act:—

1. Short title and commencement.—(1) These rules may be called the Family Courts (Rajasthan) Rules, 1991.

(2) They shall come into force from 1-4-1992.

2. Definitions.—(1) In these rules, unless there is anything repugnant to the subject or otherwise.
(a) “Act” means the Family Courts Act, 1984 (Central Act No. 66 of 1984);
(b) “Court” means the Family Court established under section 3 of the Act; and
(c) “High Court” means the High Court of Judicature for Rajasthan.

(2) Words and expressions defined in the Act shall, wherever used in these rules, be construed to have the
meanings assigned to them by the Act.

3. Recruitment of Judges.—(1) Recruitment of a Judge shall be made—

(a) by deputation of a member of the Rajasthan Higher Judicial Service or of a person who has held for 7
years the office of member of a Tribunal or any post under the Union or a State requiring special
knowledge of law; or
(b) by re-appointment of a retired member or person referred to in clause (a); or
(c) by appointment of a person eligible under clauses (b) and (c) of sub-section (3) of section 4 of the Act.

(2) For the purpose of making an appointment under clause (c) of sub-rule (1) the High Court shall invite
applications from eligible candidates and appoint a committee of such number of Judges of the High Court as it may
think proper. The committee so appointed shall scrutinise the applications received, interview such of the applicants
as are thought proper and place its recommendations to the High Court and thereupon send its recommendations
to the State Government for making appointments:

Provided that the High Court may recommend the name of an eligible person for appointment under clause (c) of
sub-rule (1) even if such person has not submitted his application for such appointment.

4. Salary, allowances, and other terms and conditions of Judges.—(1) The terms and conditions of service of a
Judge appointed by deputation under clause (a) of sub-rule (1) of rule 3 shall,
(a) if such Judge belongs to the Rajasthan Higher Judicial Service, be regulated by the Rules applicable to the
members of that service:

Provided that the pay and allowances of such Judge shall be as are admissible to District Judge on
deputation and his service conditions shall not be varied to his disadvantage after appointment; and
(b) if such a Judge belongs to a service other than the Rajasthan Higher Judicial Service, that the pay and
allowances of such Judge shall be as are applicable to an officer on deputation under the provisions of the
Rajasthan Service Rules and his service Rules and his service conditions shall not be varied to his
disadvantage after appointment.

(2) The terms and conditions of service of a Judge appointed under clause (c) of sub-rule (1) of rule 3 shall be the
same as are applicable to a member of the Rajasthan Higher Judicial Service and shall be paid pay and allowances
as are admissible to a selection grade member of that service. On his appointment as Judge he will be fixed on the
minimum of selection scale of that service.

(3) No person shall be appointed as a Judge before he has attained the age of 50 years and after he has attained
the age of 62 years.

(4) If any person appointed as a Judge was in service under the Central or State Government he shall on
completion of superannuation age applicable in his parent Department shall stand retired from the service:
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Provided that the State Government may in concurrence with the High Court re-appoint him on the post of a Judge
for a period not exceeding two years which can be further extended up to the age of 62 years. On his re-
appointment he will get the salary and allowances as is admissible to a retired Government servant as per
provisions of Rajasthan Service Rules.

(5) Any member of the Rajasthan Higher Judicial Service who has reached the age of superannuation will be
eligible for re-appointment as a Judge of the Family Court for a period not exceeding two years which can further be
extended up to 62 years of his age, by the State Government with the concurrence of the High Court. On his re-
appointment, he will get salary and allowances as are admissible to a retired government servant as per law.

(6) The pension of a person appointed otherwise than from the service members of the Rajasthan Higher Judicial
Service or other service shell be a sum of Rs. 7,200 per annum for each completed year of service subject to a
maximum of Rs. 24,000 per annum.

(7) The State Government may transfer any Judge from one Family Court to another such Court, with concurrence
of the High Court.

5. Terms and conditions of Service of Officers and Employees.—(1) There shall be provided to a Court such
number and categories of officers and employees as are determined by the State Government from time to time in
consultation with the High Court.

(2) Such officers and employees may be appointed by the Principal Judge in a Court on deputation from amongst
those in the employment of the State Government as deemed necessary.

(3) The recruitment or appointment of the officers and employees in a court shall be made by the Principal Judge in
accordance with the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986 and Rajasthan class IV
Service (Recruitment and other Service Conditions) Rules, 1963.

(4) The salary, allowances and other terms and conditions of service of the officers and employees of the court shall
be governed by the rules and orders made by the State Government from time to time in this behalf and as are
applicable to the officers and employees of the State Government.

6. Medical Expert.—(1) A Private Medical expert, when called by the court from out-station, shall be paid TA/DA as
may be determined by the Court keeping in view the rules made by the State Government from time to time in this
behalf with regard to Government servants. Such an expert and a Government doctor when called locally shall be
paid a sum not exceeding Rs. 25 towards conveyance charges as determined by the Court.

(2) Such a Private Medical expert shall be paid as his fee a sum as may be determined, not exceedings Ra. 75 by
the Court.

(3) A medical expert who has retired from Government Service shall be paid such TA/DA as were admissible to him
at the time of his retirement.

7.Amicus Curiae.—(1) The Judge, if he deems necessary may appoint any legal expert as Amicus Curiae in a
case.

(2) The Amicus Curiae shall be paid by the State Government in a case or proceedings a fee which determined by
the State Government from time to time.

8. Appointment of Counsellors and other persons.—(1) The High Court shall, by public notice published in any
local daily newspaper invite applications in each area from institutions, organisations and persons engaged or
working in the field of social welfare and welfare of the family for being associated with or to assist the Family Court
of such area.

(2) The applications shall be examined and if the applicants are, on such enquiry as it deemed proper, found to be
fit for being associated as counsellors, such applicants shall, in consultation with the Judge of the Family Court be
authorised for a period of 2 years by the State Government, by notification in the Official Gazette, to be associated
with the Family Court in that area.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(3) The Court may appoint a Counsellor from the approved list.

(4) Such Counsellor may if permitted by the Court in a particular matter, assist the Court as welfare expert in its
functions under the Act.

(5) Such Counsellor shall not be paid any fee or expenses by any party to the case.

(6) The Court may assign any work to a Counsellor for assisting it in discharging its functions under the Act.

(7) The Court may secure the service of any other person whose association with the Court appears necessary so
as to enable the court to exercise its jurisdiction more effectively in accordance with the purpose of the Act.

(8) The Counsellor or the person associated with the Court under clause (7) shall not act or plead for a party to a
case or proceeding but shall generally assist the Court in reaching peaceful and amicable settlement of the dispute.

(9) A Counsellor or a person associated under clause (7) may be paid by the Court a sum not exceeding Rs. 25 as
conveyance charges.

(17) THE RAJASTHAN (HIGH COURT) FAMILY COURTS RULES, 1990

CHAPTER I

PRELIMINARY

1. Title.—(i) These rules may be called the Rajasthan (High Court) Family Courts Rules, 1990.

(ii) These shall come into force from the date of publication in the Official Gazette and shall apply to the Family
Courts established in the State of Rajasthan under the Family Courts Act, 1984.

2. Definitions.—(i) In these rules unless there is anything repugnant to the subject or context,—
(a) “Act” means the Family Courts Act, 1984 (Central Act No. 66 of 1984);
(b) “Court” means the Family Court established under section 3 of the Act; and
(c) “High Court” means the High Court of Judicature of Rajasthan.

(ii) Words and expressions defined in the Act shall wherever used in these Rules, be construed to have the
meaning assigned to them by the Act.

3. Sitting of the Court.—(i) The principal seat of the Court shall be located at the place notified by the State
Government under section 3 of the Act.

(ii) The Court shall ordinarily hold the court at its principal seat.

4. Working Hours.—The working hours of the Court throughout the year shall be from 10.00 a.m. to 5.00 p.m. with
a lunch break of half-an-hour from 1.30 p.m. to 2.00 p.m.:

Provided that the Judge may hold the Court beyond the working hours and even on Sundays and Holidays, if he
thinks necessary.

5. The Civil Court Calendar shall be the Calendar of the Courts except that there will be no summer vacation.

6. The administrative control over the Family Courts shall vest in the High Court.

CHAPTER II

INSTITUTION OF PROCEEDINGS
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

7. Suits or proceedings.—All actions instituted before the court shall be by way of plaint, or petition or application
or otherwise as the court thinks fit.

8. Petition etc., to be in triplicate.—A petition, plaint or any application will be filed in triplicate in Hindi in
Devnagari script or in any other language with its transcription in Hindi. One of such petitions, plaints or applications
will be forwarded by the Office Superintendent/Reader of the Court to the Principal Counsellor, if appointed.

9. Contents of certain petitions.—In addition to the particulars required to be given under Order VII, rule 1 of the
Code of Civil Procedure, 1908 and section 20(i) of the Hindu Marriage Act, 1955, every petition for judicial
separation, nullity of marriage and divorce shall contain the following particulars.—
(a) the place and date of marriage;
(b) the names of the parties and their occupation, the principal place and address where the parties resided
and cohabited including the address where they last resided together;
(c) the names of the children, if any, of the marriage together with date of birth or ages;
(d) if prior to the date of the petition, there has been any proceeding under the Hindu Marriage Act, 1955
between the parties to the petition, the full particulars thereof and the result of such proceedings;
(e) If the petition is for restitution of conjugal rights, the date on or from which and the circumstances under
which the respondent withdrew from the society of the petitioner;
(f) if the petition is for judicial separation, the matrimonial offence alleged or other grounds upon which the
relief is sought, together with full particulars thereof so far such particulars are known to the petitioner,—
(i) in the case of alleged desertion, the date and the circumstances under which it began;
(ii) in the case of cruelty or sexual intercourse with any person other than his or her spouse, the specific
act of cruelty or sexual intercourse, and the occasion when and the places where such acts were
committed together with the name and address of the person or persons with whom the respondent
had sexual intercourse, if known to petitioner;
(iii) in case of virulent leprosy or venereal disease in a communicable form; when such ailment began to
manifest itself, the nature and the period of the curative steps taken together with the name and
address of the person who treated such ailment and in the case of venereal disease that it was not
contacted from the petitioner; and
(iv) in the case of unsoundness of mind, the time when such unsoundness began to manifest itself, the
nature and period of any curative step together with the name and address of the person who treated
such unsoundness of mind.
(g) if the petition is for divorce, the matrimonial offence alleged or other grounds upon which the relief is
sought together with the full particulars thereof so far as such particulars are known to the petitioner, e.g.—
(i) in the case of allegation that the other party, after the solemnization of the marriage, had voluntary
sexual intercourse with any person other than his or her spouse, that specific act and the occasion
when and the place where such act or acts was or were committed together with the name and
address of the person with whom sexual intercourse was committed;
(ii) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest
itself; the nature and period of any curative steps taken together with the name and address of the
person who treated for such unsoundness of mind;
(iii) in the case of virulent and incurable form of leprosy or venereal disease in a communicable form when
such ailment began to manifest itself, the nature and the period of any curative steps taken together
with the name and address of the person who treated for such ailment; and
(iv) in case of presumption of death; the last place where the parties lived together and the date when and
the place where the respondent was last seen or heard of; as alive and the steps, if any, taken to
ascertain his or her whereabouts.
(h) if the petition is for a decree of nullity of marriage on the grounds specified in clause (c) or clause (d) of
section 12 of the Hindu Marriage Act, 1955, the time when the facts relied on were discovered and whether
or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts;
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(i) property mentioned in the section 27 of the Hindu Marriage Act, 1955, if any;
(j) whether marriage has been registered under section 8 of the Hindu Marriage Act, 1955,
(k) the petition shall set out at the end of relief or reliefs sought including any claim for,—
(i) custody, maintenance and education of children,
(ii) permanent alimony and maintenance, and
(iii) Costs.

Where a claim is made under clause (ii) above, the petition shall specify the annual or capital value of the
respondent’s property, the amount of his or her annual earnings and other particulars relating to his or her financial
resources and the particulars relating to the petitioner’s income and other property.

10. Every petition for divorce on any of the grounds mentioned in clauses (i) and (ii) sub-section (1A) of the section
13 of the Hindu Marriage Act, 1955 shall be accompanied by a certified copy of the decree for judicial separation or
for restitution or conjugal rights as the case may be.

CHAPTER III

SERVICE OF SUMMONS, ETC.

11. Service of process.—All processes shall be served in the manner prescribed in the Code of Civil Procedure,
1908, except in proceedings under Chapter IX of thecode of Criminal Procedure, 1973:

Provided that notices of petitions arising out of any matrimonial law shall be served personally on the respondent
except when the Court under exceptional circumstances orders otherwise.

12. Procedure for unserved summons.—If the writ of summons is not served within three months from the date of
the filing of the petition, the Reader shall unless good cause is shown, place the petition before the Court for
direction and appropriate order and shall notify sum petitions on the notice board one week before they are placed
for dismissal before the Court.

CHAPTER IV

COUNSELLING AND ITS PROCEDURE

13. Association of persons engaged in the field of Social Welfare.—Family Court may take the assistance of
counsellor or counsellors for persuading parties for reconciliation or to arrive at the settlement.

14. Association of other persons.—If deemed necessary, the Presiding Officer may seek the association of any
of the relatives of the parties, social workers and other experts for achieving a reconciliation between the parties at
any stage.

15. Other duties of counsellor.—Under the directions of the Court, Counsellor may in the discharge of his
duties.—
(a) pay visits to the home of any party;
(b) interview relatives, friends and acquaintances of the parties or any of them;
(c) seek such information as he may deem fit from the employer;
(d) refer the parties to an expert of medicine or psychiatry.

16. Secrecy to be maintained by the Counsellors.—Information gathered by the Counsellor, any statement made
before the Counsellor or any notes or report prepared by the Counsellor will be treated as confidential. The
Counsellor shall not be called upon to disclose this information, statement, notes or report to any Court except with
the written consent of both the parties:

Provided, however, that the Counsellor will submit to the Court a report relating to home environment of the parties
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

concerned, their personalities and their relationship with their child and or children in order to assist the Court in
deciding the question of custody or guardianship of any child or children of the marriage, if desired by the Court

Provided further that the Counsellor will also submit to the Court a report relating to home environment income or
standard of living of the party or parties concerned in order to assist the Court in determining the amount of
maintenance and/or alimony to be granted to one of the parties if desired by the Court.

17. Counsellors not to give evidence.—The Counsellor shall not be permitted to give evidence in any Court in
respect of any information, statement, notes or report prepared by him.

18. Report of Counsellor on any other relevant subject.—The Court may request the Counsellor to submit to it a
report on any other subject in order to assist the Court in adjudicating upon the matter before it or any part thereof.

19. Settlement before Counsellor.—When the parties arrive at a settlement before the counsellor relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and
countersigned by the Counsellor. The Court shall pronounce a decree or order in terms thereof unless the court,
considers the terms of settlement unconscionable.

20. Counsellor’s right to supervise custody of children.—The Counsellor will be entitled, if directed to supervise
the placement of children in custody of a party and will be entitled to pay surprise visit to the home where the child
resides. On the report of the Counsellor the Court may pass necessary order after notice to the parties relating to
the custody of the child.

21. Applicability of the General Rules (Civil) and General Rules (Criminal).—For removal of doubts, it is hereby
declared that General Rules (Civil), 1986, General Rules (Criminal), 1980 and Rules relating to the Payment of
Expenses to witnesses in Criminal Court, 1957 and Civil Courts, 1958 shall; as far as practicable, apply to the
proceedings before the Family Courts, so far as, they are not inconsistent with the provisions of the Act and Rules
made thereunder.

(18) THE FAMILY COURTS (TAMIL NADU) RULES, 1987

[G.O. Ms. No. 1871, Home (Courts VTI), 3rd August, 1987, published in the Tamil Nadu Government Gazette, Pt.
III, Sec. 1(a), dated 19th August, 1987 on pages 534-536]

No. S.R.O.A 195187.— In exercise of the powers conferred by section 23 of the Family Courts Act, 1984 (Central
Act 66 of 1984), the Governor of Tamil Nadu, after consultation with the High Court, Madras, hereby makes the
following rules, namely:—

1. Short title and commencement.—(1) These rules may be called the Family Courts (Tamil Nadu) Rules, 1987.

(2) They shall come into force at once.

2. Definitions.—(a) “Act” means the Family Courts Act, 1984 (Central Act 66 of 1984).

(b) “Judge” means the Judge or, as the case may be, the Principal Judge, Additional Principal Judge or other Judge
of a Family Court.

3. Terms and conditions of service of the Judge.—(1) A Judge shall hold office for a term of five years or until he
attains the age of sixty-two years, whichever is earlier.

(2) A Judge shall be entitled to the pay, allowances and leave as admissible to a District Judge:

Provided that if he is in receipt of a pension in respect of any previous service under any Government, he shall be
entitled to the pay last drawn by him, less the pension and the pension equivalent of other pensionary benefits, if
any, drawn by him and in addition, he shall be entitled to draw the allowances admissible to a District Judge:

Provided further that if a serving District Judge is appointed as a Judge, he shall be entitled to such pay and
allowances that would have been admissible to him but for his appointment as a Judge and if he retires from
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

service before the expiry of his term, he shall, from the date of his retirement, be entitled to such pay and
allowances admissible under the first proviso.

(3) The conditions of service applicable to a District Judge shall apply to a Judge.

(4) A Judge shall not be entitled to any pension for the service rendered by him as a Judge:

Provided that, an officer of the State Government on deputation shall be entitled to count his service as such till the
date of his superannuation for the purpose of his pension.

4. List of persons and agencies engaged in the field of Social Welfare.—(1) The Family Court shall prepare in
the month of January every year a list of not less than ten persons (including institutions or organisations) from
among those engaged in the field of social welfare or representatives thereof, professionally engaged in promoting
the welfare of the family, working in the field of social welfare and whose association with the Family Court may
enable it to exercise its jurisdiction more effectively in accordance with the purpose of the Act and submit to the
High Court for approval:

Provided that if the Family Court is established in the middle of any year, such list shall be submitted within one
month from the date of establishment of such Court.

(2) The list shall be valid till the approval of the next list by the High Court.

5. Nomination of persons as Counsellors.—(1) The Family Court shall nominate two persons which may include
representatives of institutions or organisation out of the list prepared under sub-rule (1) of rule 4 as Counsellors to
assist the said Court in discharge of its functions.

(2) The term of office of the Counsellors so nominated shall be three months.

6. Substitute for Counsellor nominated.—If, for any reason a Counsellor so nominated is unable to attend the
Family Court, the Family Court may nominate another Counsellor from out of the list prepared under sub-rule (1) of
rule 4.

7. Fee for Counsellor.—Every Counsellor shall be entitled to a sitting fee of Rs. 30 (rupees thirty only) per day.

8. Number and categories of Officers and other Employees of Family Court.—(1) Every Family Court shall
have the posts specified in the Schedule to these rules.

(2) The Salary, allowances and other conditions of service of the officers and other employees of the Family Court
referred to in sub-section (2) of section 6 of the Act shall be the same as those applicable to the employees holding
similar posts in the Tamil Nadu Judicial Ministerial Service, the Tamil Nadu General Subordinate Service and the
Tamil Nadu Basic Service.

(3) Appointment to the posts specified in the Schedule to these rules shall be made by the Principal Judge by
deputation from among persons holding equivalent posts in the Tamil Nadu judicial Ministerial Service, the Tamil
Nadu General Subordinate Service and the Tamil Nadu Basic Service.

9. Fees and expenses of Medical and other Experts.—The Medical experts and the persons referred to in
section 12 of the Act, whose services are secured for assisting the Family Court, shall be paid travelling and daily
allowances at the rate admissible to the official and non-official witnesses appearing before the Criminal Courts for
giving evidence.

10. Fees of Legal Practitioners.—The legal practitioners appointed under section 13 of the Act as amicus curiae
shall be entitled to fees at the rate of Rs. 100 (rupees one hundred only) per case.

THE SCHEDULE

(See rule 8)

Serial Number Name of the Post Number of posts

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Serial Number Name of the Post Number of posts

(1) (2) (3)

Principal Judge’s Court

1. Sheristedar One

2. Assistants Two

3. Stenographer One

4. Typist One

5. Copyist Three

6. Junior Assistant Four

7. Attender One

8. Jamedar One

9. Office Assistants Six

10. Sweeper-cum-Watchman One

1l. Bailiffs Two

12. Process Servers Four

Additional Principal Judge’s Court

1. Assistant One

2. Stenographer One

3. Typist One

4. Jamedar One

5. Office Assistants Four

(19) THE UTIAR PRADESH FAMILY COURTS RULES, 19951

CHAPTER I

PRELIMINARY

1. Short title and commencement.—(1) These rules may be called the Uttar Pradesh Family Courts Rules, 1995.

(2) They shall come into force with effect from the date of their publication in the Official Gazette.

2. Definitions.—(i) In these rules, unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984 (Act No. 66 of 1984);
2[(b) “Appointing authority” means the Governor in relation to the post of a Judge and the Judge, or
where there are more than one Judge, the principal Judge In relation to an officer of the Family Court, and
the District Judge of the place where the Family Court is located in relation to other employees of the
Family Court.]
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(c) “Citizen of India” means a person who is or is deemed to be a citizen of India under Part II of the
Constitution;
(d) “Commission” means the Uttar Pradesh Public Service Commission;
(e) “Governor” means the Governor of Uttar Pradesh;
(f) “Government” means the State Government of Uttar Pradesh;
(g) “High Court” means the High Court of Judicature at Allahabad;
(h) “Post” means the post of a Judge:
(i) “Section” means section of the Act.
(ii) Words and expressions used but not defined in these rules and defined in the Act shall have the
meanings assigned to them in the Act.

CHAPTER II

PART I

APPOINTMENT AND TERMS AND CONDITIONS OF SERVICE OF JUDGE

[Sections 4(6) and 23(2)(a)]

3. Source of appointment.—The appointment of a Judge may, with the concurrence of the High Court, be made
from any of the following sources:—
(a) by deputation from amongst persons having held for at least seven years, a judicial office in India; or
(b) by re-employment after retirement on superannuation of a person who has for at least seven years, held, a
Judicial Office in India; or
(c) by direct recruitment from amongst persons eligible for appointment under sub-sections (3) and (4) of
section 4.

4. Reservation.—Reservation for the candidates belonging to Scheduled Castes, Scheduled Tribes and other
categories in direct recruitment shall be in accordance with the provisions of the Uttar Pradesh Public Service
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (U.P. Act No.4 of
1994).

5. Eligibility and other qualifications.—A candidate for appointment to a post must possess any of the
qualifications provided under clauses (a) and (b) or such other qualifications as may be prescribed by the Central
Government under clause (c) of sub-section (3) of section 4. Selection shall be made having due regard to the
provisions under sub-section (4) of section 4.

6. Nationality.—A candidate for appointment to the post must be,—

(a) a citizen of India; or
(b) a Tibetan refugee who came over to India before January 1, 1962 with the intention of permanently settling
in India; or
(c) a person of Indian origin who has migrated from Pakistan, or any of the East African countries of Kenya,
Uganda and the United Republic of Tanzania (formerly Tanganyika and Zanzibar) with the intention of
permanently settling in India:

Provided that a candidate belonging to category (b) or (c) above must be a person in whose favour a certificate of
eligibility has been issued by the State Government:

Provided further that a candidate belonging to category (b) has also obtained a certificate of eligibility granted by the
Deputy Inspector General of Police, Intelligence Branch, Uttar Pradesh.

7. Age.—A candidate for direct recruitment to the post must have attained the age of 45 years and must not have
attained the age of 50 years on the first day of July in the year in which the vacancies are advertised:
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Provided that candidates belonging to Scheduled Castes and Scheduled Tribes claiming reservation shall be
entitled for five years of relaxation in higher side of the age limit.

8. Character.—The character of a candidate for direct recruitment to the post must be such as to render him
suitable in all respects for employment in Government service. The appointing authority shall satisfy itself on this
point.

Note.—Persons dismissed by the Union Government or State Government or by a Legal Authority or a Corporation
or Body owned or controlled by the Union Government or State Government shall be ineligible for appointment to
the post and persons convicted of an offence involving moral turpitude shall also be ineligible.

9. Marital status.—A male candidate who has more than one wife living or a female candidate who has married a
man already having a wife living shall not be eligible for appointment to the post.

10. Medical fitness.—No candidate by direct recruitment shall be appointed to the post unless he be in good
mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his
duties. Before a candidate is finally approved for appointment he shall be required to pass an examination by a
Medical Board.

PART II

PROCEDURE FOR APPOINTMENT BY DIRECT RECRUITMENT

11. Determination of vacancies.—The appointing authority shall determine and intimate to the Commission the
number of vacancies to be filled by direct recruitment during the course of the year as also the number of vacancies
to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 4.
(a) written examination of such legal and allied subjects including procedure, as may be included in the
syllabus prescribed under rule 13; and
(b) an interview to assess the all round carrier of the candidates and their personality, address and general
suitability.

13. Syllabus.—The syllabus and the rules relating to the competitive examination shall be such as may be
prescribed by the High Court in consultation with the Commission.

14. Fee.—Candidate for direct recruitment shall pay to the Commission and to the President of Medical Board such
fees as may, from time to time, be specified by the Government.

15. Procedure for direct recruitment on the basis of competitive examination.—(1) Application for permission
to sit at the competitive examination shall be invited by the Commission in the form notified by them in the
advertisement.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the
Commission.

(3) After the results of the written examination have been received and tabulated, the Commission shall, having
regard to the need for securing due representation of the candidates belonging to the Scheduled Castes,
Scheduled Tribes and other categories under rule 4, summon for interview such number of candidates as on the
result of the written examination have come up to the standard fixed by the Commission in this respect. The marks
awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare and forward to the appointing authority a list of candidates who have taken
examination for recruitment to the post in order of their proficiency as disclosed by the aggregate of marks finally
awarded to each candidate. If two or more candidates obtain equal marks in the aggregate, the Commission shall
give preference to the candidates securing higher marks in written examination.

PART III

APPOINTMENT AND TERM OF OFFICE

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

16. Appointment.—Subject to the provisions of rule 9, the Governor shall, on receipt of the list prepared by the
Commission under sub-rule (4) of rule 15, consult the High Court and shall, alter taking into consideration the views
of the High Court, select candidates far appointment from amongst those who stand highest in order of merit in
such list, provided that he is satisfied that they are duly qualified in other respects.

17. Term of office.—The maximum age of superannuation in the case of direct recruit shall be 62 years. The
Judge on deputation shall hold office for a term of three years from the date on which he enters upon the office
unless extended by the Government with the concurrence of High Court but not beyond the date on which he
attains the age of 62 years.

18. Seniority.—The seniority of a Judge recruited directly in any year Shall be determined according to the merit
list drawn up under sub-rule (4) of rule 15.

PART IV

PAY

19. Pay and other allowances.—The salary and other allowances admissible to a Judge shall be such as may be
determined by the Government in consultation with the High Court, from time to time.

PART V

MISCELLANEOUS

20. Canvassing.—No recommendation, either written or oral, other than those required under the rules applicable
to the post will be taken into consideration. An attempt on the part of a candidate to enlist support directly or
indirectly for his candidature will disqualify him for appointment.

21. Regulation of other matters.—In regard to the matters not specifically covered by these rules or by special
orders, persons appointed to the post shall be governed by the rules, regulations and orders applicable generally to
Government servants serving in connection with the affairs of the State.

CHAPTER III

TERMS AND CONDITIONS OF SERVICE OF OFFICERS AND OTHER EMPLOYEES OF FAMILY COURTS

[Sections 6(2) and 23(2)(b)]

1[22. Appointment of Officer.—(1) The Judge and where there are more than one Judge for any area, the
principal Judge shall appoint for his Court and for other Family Courts, if any, for the area of his jurisdiction, such
officers as may be determined from time to time under sub-section (1) of section 6 of the Act.

(2) Until the terms and conditions of service of officers of the Family Courts are prescribed, their qualifications,
procedure for recruitment, pay and other conditions of service shall be the same as that of the officers of the similar
category in Civil Courts subordinate to the High Court and the rules relating thereto shall mutatis mutandis apply.

22A. (1) The establishment of Group “C” and Group “D” employees of the Family Court shall form part of
establishment of the Judgeship of the District where the Family Court is located.

(2) The District Judge shall appoint Group “C” and Group “D” employees against the vacancies as may be
determined from time to time and sub-section (1) of section 6 of the Act and it shall add to the strength of the said
Judgeship.

(3) Any recruitment of Group “C” and Group “D” employees made by the District Judges in relation to the Family
Court shall from part of the cadre of the employees of the Judgeship for all purposes and they shall be provided to
the Family Court according to their requirement.

(4) The procedure of recruitment, terms and conditions of services of the Group “C” and Group “D” employees of
the Family Court shall be the same as has been prescribed in the U.P. Subordinate Civil Courts Ministerial
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Establishment Rules, 1947; the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate
Offices in Uttar Pradesh, 1950 and the U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955, as the
case may be.

22B. The Group “C” and Group “D” employees of the Family Courts appointed on ad hoc basis prior to August 7,
1989 may be considered for regular appointment by the District Judge in accordance with the U.P. Regularisation of
ad hoc Appointments (On Posts Outside the Purview of the Public Service Commission) Rules, 1989 read with High
Court C.L. No. 69/VTI-b-104/Adm.(D), Allahabad, dated November 10, 1993].

CHAPTER IV

TRANSMISSION OF RECORDS TO FAMILY COURTS

[Sections 8 to 23(1)]

23. Transmission of records.—(1) As soon as a Family Court is established for an area, the District and Sessions
Judge having jurisdiction in that area shall cause the record of all suits and proceedings of the nature referred to in
section 8 pending before the Courts under his jurisdiction collected and transmitted to the Family Court.

(2) The records of the case be properly stitched and all the papers shall be duly indexed.

(3) The particulars of every such records shall be entered in a statement in Form ‘A’ which shall be prepared in
duplicate. The first copy of the statement shall be sent to the Family Court along with the records and the duplicate
copy shall be retained by the District Sessions Judge.

CHAPTER V

ASSOCIATION OF SOCIAL WELFARE AGENCIES, MEDICAL AND WELFARE EXPERTS, AMICUS CURIAE,
ETC.

24. AmicusCuriae (section 13).—If the Family Court considers it necessary in the interest of justice it may seek
the assistance of legal expert as amicus curiae on purely legal issue. For that purpose, the Family Court shall
prepare a list of legal experts who are willing to assist it as amicus curiae and legal experts. They shall be paid fees
and expenses out of the revenues of the Government as per the scale of fees and expenses prevalent in the Court
of District Judge.

25. Counselling Centre (sections 6 and 23).—(1) There shall be attached to every Family Court a Counselling
Entry which shall have as many Counsellors as may be determined by the Government in consultation with the
High Court, from time to time. If more than one Counsellor is appointed for any Family Court, one of them may be
appointed the Principal Counsellor.

(2) A Counselling Centre may be divided into different units and may be located in the Family Court premises and
on such other places as the High Court may direct.

26. Counsellors [sections 6(1) and 23(1)1.—(1) Principal and other Counsellors attached to a Counselling Centre
shall be appointed by the Government on the recommendation of the High Court and shall be paid such
remuneration and expenses out of the revenues of the Government as may be determined by the Government,
from time to time.

(2) The High Court may consult professionally qualified experts in Family and Child Welfare, preferably working with
recognised institutions of Social Science or Social Work, before recommending person for appointment as a
Counsellor.

(3) Such persons who possess Master’s degree in social work with minimum of two years experience in family
counselling, will be given preference in appointment as Counsellor.

27. Functions of Counsellor [sections 6(1) and 23(2)(e)].—(1) A Counsellor entrusted with a petition shall assist
and advise the parties regarding the settlement of the subject-matter of dispute between the parties or any part
thereof. The Counsellor shall also help the parties in arriving at reconciliation.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(2) A Counsellor appointed to advise the parties shall fix the time and date of the appointment and the parties shall
be bound to attend the Counsellor on the date and at the time so fixed.

(3) If a party fails to attend the Counsellor on the dale and at the time so fixed, the Counsellor may fix another date
and time and inform the absent party accordingly by registered post, and if the said party does not attend the
Counsellor on the adjourned date, the Counsellor may make a report to the Family Court staling that one or both
the parties have failed to attend the Counsellor, whereupon in the Family Court may proceed with the matter without
prejudice to its any other powers to take action against the defaulting party.

(4) A Counsellor in the discharge of his functions shall be entitled to pay visits to the houses of any of the parties,
and interview relatives, friends and acquaintances of parties or any of them:

Provided that where the lady is the sole occupant of the premises, which she occupies, the visit by a male
Counsellor shall always be along with a lady duly approved by the Family Court.

(5) The Counsellor in the discharge of his functions may seek such informations as he may deem necessary from
the employer of a party.

(6) The Counsellor may refer a party to an expert in any other area such as medicine or psychiatry.

28. Panel of Experts [sections 12 and 23(2)(c)].—The Judge shall prepare a panel of medical and other experts
in consultation with. the principal Counsellor or Counsellor, as the case may be, and the experts shall be entitled to
such fees and expenses out of the revenues of the Government as may be determined by the Judge of the Court
having due regard to the status, expertise and the professional loss, etc., of the expert giving evidence or opinion
before the Court.

29. List of institution, etc. [sections 5 and 23(1)].—The Judge shall prepare, in consultation with the Principal
Counsellor or Counsellor, as the case may be, a list of institutions, organisations or agencies working in the area of
Family Welfare or in any other areas that he may deem fit in order to enable him or the parties to obtain the
assistance of such as institution or organisation or agency.

(2) The institutions, organisations and agencies shall, for the services rendered by them, be entitled to such
remuneration as may be fixed by the Government, from time to time, by an order notified in this behalf.

30. Confidentiality of information [section 23(1)].—(1) Information gathered by the Counsellor, any statement
made before the Counsellor or any notes or report prepared by the Counsellor shall be treated as confidential and
the Counsellor shall not be called upon to disclose the information, statements, notes or report to any court except
with the consent of both the parties.

(2) The information, statements, notes and report referred to in sub-rule (1) shall be kept in sealed covers by the
Counsellor and will not form part of evidence before the Family Court. The same may, however, be used for the
purposes of research or education with the permission of the Judge on condition that the identities of the parties
shall not be disclosed. However, the Court may pursue the information, statements, notes, reports, etc.

31. Counsellor not to give evidence [section 23(1)].—(1) A Counsellor shall not be required to give evidence in
any court in respect of the information, statements, notes or reports referred to in sub-rule (1) of rule 30:

Provided that-(i) The Counsellor may submit to the Family Court a report relating to the environment of the parties,
their personalities and their relationship with their children in order to assist it in deciding the question of custody or
guardianship of any child of the marriage.

(ii) The Counsellor may also submit to the Family Court report relating to the environment, income or standard of
living of a party or parties in order to assist it in determining the amount of maintenance or alimony to be granted to
one of the parties.

(2) A Family Court may also require the Counsellor to submit to it a report on any other subject in order to assist it in
adjudicating upon the matter before it or any part thereof.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(3) A copy of the report submitted under sub-rules (1) and (2) may be supplied to a party on a request being made
by it.

(4) The parties shall be entitled to make their submissions on the report.

32. Submission of memorandum (section 23).—The Counsellor shall submit a brief memorandum to the Family
Court informing the outcome of the proceedings before him.

33. Settlement before Counsellor (section 23).—lf the parties arrived at a settlement before the Counsellor
relating to the dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the
parties and countersigned by the Counsellor, and the Family Court shall pronounce a decree or order in terms
thereof unless it considers the terms of the settlement unconscionable or unlawful or contrary to public policy.

34. Supervision of or custody of children [section 23(1)1.—(1) The Counsellor shall be entitled to supervise the
placement of children in the custody of a party and for this purpose he may make surprise visits to the house where
the child resides and shall make a report to the Family Court if any alteration is required in the arrangement relating
to the custody of the child:

Provided that where the lady is the sole occupant of the premises, she occupies, then visits by a male Counsellor
shall always be alongwith a lady duly approved by the Family Court.

(2) On receipt of a report under sub-rule (1), the Family Court may, after giving notice

to the parties, pass such order as it may deem fit relating to custody of the child.

35. Supervisions after reconciliation [section 23(1).—The Counsellor shall be entitled to supervise, guide and
assist the reconciled couples even if the matter is no longer pending in the Family Court.

36. Superintendence of High Court.—Unless there is any Rule to the contrary, a Family Court shall function
under the Superintendence of the High Court.

[NOTIFICATION MAKING U.P. GENERAL RULES (CIVIL) AND U.P. GENERAL RULES (CRIMINAL)]

(Applicable to Family Courts in Uttar Pradesh)

ADNRNNFFITRATINE SECTION

No. 625/Vide-27/Dated 8-10-1998

In exercise of powers conferred by section 21 of the Family Courts Act, 1984 (Act 66 of 1984) and all other
provisions enabling in that behalf, the High Court of Judicature at Allahabad, notified that from the date of
publication of the Notification, the following Rules shall mutatis mutandis apply to all the Family Courts in existence
and to be established in the State of Uttar Pradesh:

1. General Rules (Civil), 1957, Vols. I and II.

2. General Rules (Criminal), 1977, as amended from time-ID-time.

(20) THE UTTAR PRADESH FAMILY COURTS (COURTI RULES, 20061

In exercise of the powers conferred by section 21 of the Family Courts Act, 1984 (Act No. 66 of 1984) and all
enabling provisions in that behalf, the Hon’ble Chief Justice and Judges hereby make and prescribe the following
rules for the Family Courts in the State of Uttar Pradesh:

CHAPTER I

PRELIMINARY
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

1. Short title, commencement and application.—(i) These rules may be called the Uttar Pradesh Family Courts
(Court) Rules, 2006.

(ii) These rules shall come into force on such date as the High Court may publish the notification in the Official
Gazelle in this behalf.

(iii) These rules shall apply to the Family Courts established in the State of Uttar Pradesh under section 3 of the
Family Courts Act, 1984.

CHAPTER II

2. Definitions.—In these rules, unless the context otherwise requires,—

(a) “Act” means the Family Courts Act, 1984;
(b) “Centre” means a Counselling Centre and includes office of the Organization/Institution which the
Counsellor represents;
(c) “Court” means the Family Courts, established under section 3 of the Act;
(d) “High Court” means the High Court of Judicature at Allahabad;
(e) “Petition” shall include an application under Chapter IX of the Code of Criminal Procedure, 1973 unless the
subject-matter or context requires otherwise;
(f) “Principal Counsellor” means the Principal Counsellor appointed by the High Court and when such
Counsellor is not appointed it shall include the Counsellor/or Counsellors, as the case may be.

CHAPTER III

3. Sitting of the Court.—Working hours and place of sitting:

(i) The Office of the Court shall be open daily except on holidays for transaction of office work between 10.00
a.m. to 5.00 p.m.
(ii) The Judges of the Court shall ordinarily sit in the Court between 10.30 a.m. to 4.30 p.m. on ail working
days of the Court, with recess between 1.30 p.m. to. 2.00 p.m.
(iii) A Court may hold sitting on holidays, and outside normal working hours if the Judge considers it necessary
to do so in the circumstances of the case with prior notice to the parties and to such other person or
persons as the Judge may consider necessary.
(iv) The Court shall hold its sittings at the place where it is located or at such place as the High Court may
specify from time-to-time by an order in that regard.
(v) The Court shall hold its sitting in open or in camera as determined by it in each case, but shall not hold the
proceedings in camera if either party so desire.
(vi) No act of the Court shall be invalid, by reasons of holding or continuing its sitting at any place of its choice,
or any holiday or outside normal working hours when such sitting is informed to the parties in advance.

CHAPTER IV

4. Institution of proceedings.—All proceedings instituted before the Court will be by way of a petition in Form No.
I which shall be duly verified by the petitioner. In respect of application under Chapter IX of the Code of Criminal
Procedure, the provisions of the Code of Criminal Procedure will apply.

5. All applications under Chapter IX of the Code of Criminal Procedure shall be by way of an application as per
Form No.2 appended to these rules which shall be duly verified by the petitioner. The prayer for interim relief shall
not be made separately. It shall be included in the application. The application may be in any permissible language.

6. The petition may be filed before the Court as permitted under any law which also includes provisions contained in
the following laws:
(i) Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974);
 Page 87 of 99
APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(ii) Hindu Marriage Act, 1955 (25 of 1955);

(ill) Maintenance under Hindu Adoptions and Maintenance Act, 1956 (78 of 1956);
(iv) Guardianship of the persons or custody of or access to any minor under the Hindu Minority and
Guardianship Act, 1956 (32 of 1956);
(v) Dowry Prohibition Act, 1961 (28 of 1961) for an order for injunction in circumstances arising out of marital
relationship;
(vi) Hindu Marriage (Validation of Proceedings) Act, 1960 (19 of 1960);
(vii) Personal law applicable to Muslims including—
(a) Muslim Personal (Shariat) Application Act, 1937 (26 of 1937);
(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939);
(c) Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986);
(viii) Parsi Marriages and Divorce Act, 1936 (3 of 1936) which can be instituted or taken out before the Parsi
District Matrimonial Courts constituted under sections 18 and 20 of the said Act;
(ix) Indian Christian Marriage Act, 1872 (15 of 1872);
(x) Indian Divorce Act, 1945;
(xi) Special Marriage Act, 1954 (43 of 1954);
(xii) *Child Marriage Restraint Act, 1929 (19 of 1929);
(xiii) Anand Marriage Act, 1909 (7 of 1909);
(xiv) Arya Marriage Validation Act, 1937 (19 of 1937);
(xv) Foreign Marriage Act, 1969 (33 of 1969);
(xvi) Suits or proceedings relating to Part B States Marriages Validating Act, 1952 (1 of 1952);
(xvii) Guardians and Wards Act, 1890 (8 of 1890).

7. A petition shall be filed with two copies signed by the parties, along with as many copies to be sent to the
respondents. One copy of such petition shall be forwarded by the designated officers of the Court to the Principal
Counsellor forthwith. Photograph of the parties shall be affixed on the first two copies of petition and the
reply/written statement filed by the respondent.

CHAPTER V

8. Service of summons.—The name and address of the party or of the representative appearing for the party,
shall be stated in every notice, summons, witness summons, application, warrant and every process of the Court
issued at the instance of such party or representative.

9. All notices, summons, rules, orders, warrants and other mandatory process shall be in a Form No. 3 sealed with
the seal of the Court and shall be signed by the designated officers of the Court. A copy of the petition and exhibits
annexed thereto shall be sent along with the notice.

10. All notices, summons shall be returnable in three weeks after the date of filing of the petition, if respondent
resides within local limits of the Court, and five weeks after the date of filing of the petition, if respondent resides
outside the said limits.

11. The notices, summons shall be served in the manner prescribed in the Code of Civil Procedure, 1908 save and
except in proceedings under Chapter IX of the Code of Criminal Procedure, where the provisions of that Code will
apply.

12. In addition to the normal process of service by the Court, the applicant will be at liberty to serve upon the
respondent, the notices, summons of the Court, along with copy of the petition and exhibits, either through person
or through a recognizable mode of service, including registered post, speed post, fax and e-mail and shall file
affidavit of service upon the respondent.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

13. Application for substituted service of notices, summons where the respondent has refused to accept the
summons shall be made to the Court, supported by an affidavit. The Court may direct service by an advertisement
in daily newspaper, having wide circulation in the locality in which the respondent is last known to have actually and
voluntarily resided, carried on business or personally worked for gain. The Court shall maintain a list of widely
circulated newspapers and shall mention the name of the newspaper or substituted service in the order, fixing time
for appearance of the respondent as the case may require. The applicant shall file affidavit annexing the copy of the
newspaper in which the summon was published one week before the date fixed for hearing in such summon.

14. Any respondent who asks for copy of the petition, in writing, on the ground that he has not received the copy of
the petition or that he has not received complete copy, shall be furnished by the applicant the complete copy with all
annexures to the respondent.

15. In case after normal service against a woman defendant no one appears and the proceedings are about to be
taken ex parte, the Court may consider an additional service once again.

CHAPTER VI

16. Proceedings in Court.—On the returnable date of the summons, the petition shall be placed for direction
before a Judge of the Court to whom this work may be assigned by the Principal Judge of the Court.

17. When giving direction, the Judge shall in consultation with Principal Counsellor or such other Counsellor who
may be present in Court, direct the parties to attend a specified Counsellor for the purpose of counselling.

18. Such Counsellor shall be chosen bearing in mind the convenience of the parties, their special requirements and
the area in which the unit to which that Counsellor is attached is located.

19. The powers, functions and duties of the Counsellor and the protection granted to them in discharging of the
duties, shall be as prescribed in the U.P. Family Courts Rules, 1995.

20. Once the proceedings before the Counsellor shall end, the Counsellor shall file a memorandum setting out the
outcome of the proceedings before him. The Court may thereafter call a meeting of the parties to fix a date of
hearing of the petition. Intimation of such meeting shall be given to the parties by registered post or personally.

21. At the meeting so fixed, the Court shall fix a date of hearing after corresponding both the parties.

22. The Court shall also ascertain from the parties the approximate time to be taken by each party before the Court
for the hearing of the matter.

23. In the event of any party remaining absent at the meeting called by the Court, the Court shall fix such date of
hearing as he may deem fit. The Court shall fix a date at least four weeks after the date of the meeting.

24. On the date so fixed by the Court the petition shall be placed on the board of the Court for hearing and final
disposal. The time allotted to the parties shall also be indicated on the board.

25. The Court shall not ordinarily alter the date when the date has been fixed in the presence of both the sides.

26. The petition so fixed shall not be adjourned by the Court unless there are exceptional circumstances justifying
such adjournment and unless they are such as could not have been foreseen when the date of hearing was fixed
before the Court. The Court shall record its reasons for adjourning a matter.

27. The Court may permit the parties to be represented by a lawyer in Court. Such permission may be granted if the
case Involves complicated questions of law or if the Court is of the view that the party in person will not be in a
position to conduct his or her case adequately or for any other reason. The reasons for granting permission shall be
recorded in the order. Permission so granted may be revoked by the Court at any stage of the proceedings if the
Court considers it just and necessary.

28. Any application for representation by a lawyer in Court shall be made by such party to Court after notice to the
other side, not less than one week prior to the date fixed for hearing of the petition. The case shall not be adjourned
on this ground.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

29. The Court may appoint or seek assistance of legal expert as Amicus Curiae on purely legal issue in accordance
with rule 24 of the U.P. Family Courts Rules, 1995.

30. The Court may record only the substance of what the witness deposes in his examination by Court, and cross-
examination by respondent if the Court so permits, and shall prepare only a memorandum of substance of what the
witness deposes as prescribed under section 15 of the Family Courts Act, 1984. The memorandum shall be read
and explained to the witness, signed by witness and the Presiding Officer of the Court and shall form part of the
record. The Court may in the matter of Interim relief lake evidence on affidavit, if any, which shall also form part of
the record of the Court.

31. That Court shall furnish to the parties to the proceedings before it a copy of the judgment, certified to be a true
copy, free of cost.

32. An interim application may be made even while the matter is pending before the Counsellor. The Court may ask
the Counsellor to submit an Interim report for the purposes of deciding the interim application. The U.P. Family
Courts Rules, 1995 relating to report to be submitted by the Counsellor shall mutatis mutandis apply to Interim
report also.

33. On a request made by any party, the evidence before the Court may be tape-recorded at the expenses of such
party. In the event of appeal or revision before the High Court a party may apply to the Court for transcription of the
tape-recorded evidence which shall be supplied to the party concerned on payment of prescribed fee.

CHAPTER VII

34. Settlement.—Every Family Court shall maintain separate lists of—

(a) Institutions and organizations engaged in social welfare together with names and addresses of
representatives of such institutions or organizations;
(b) persons professionally engaged in promoting the welfare of the family with their addresses;
(c) persons working in the field of social welfare with their addresses.

The Family Court may call for report as regards efforts made or to be made by the institutions, organizations or
persons referred to in section 5 of the Act:

Provided that where efforts for amicable settlement are continuing or are deferred, the Family Court may require the
institution, organization or person to submit before it an interim report.

CHAPTER VIII

35. Execution of Orders.—The provisions of Code of Civil Procedure for execution of orders passed in all matters
except the orders passed on petition under Chapter IX of Code of Criminal Procedure shall apply. The provisions of
execution of orders in Code of Criminal Procedure shall apply to orders passed under Chapter IX of the Code of
Criminal Procedure.

36. An order passed under Chapter IX of the Code of Criminal Procedure for maintenance allowance may be
executed by the Court by attachment of salary as provided in section 60 and Order XXI of the Code of Civil
Procedure in addition to the mode of recovery provided in sub-section (3) of section 125 of the said Code.

37. An application under section 125/126 under Chapter VII of the Code of Criminal Procedure may be filed at the
place where the wife, minor child, parent, as the case may be, .resides.

38. The pendency of an application for interim maintenance under section 125 or 126, as the case may be, under
Chapter IX of the Code of Criminal Procedure shall not be a ground to stay or suspend the main proceedings under
section 125 or 126 of the Code.

39. In the pending execution proceeding for recovery of any defaulted amount the Family Courts shall not register a
new case. An application for recovery of defaulted amount of maintenance in the pending execution case shall be
sufficient for recovering the amount.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

CHAPTER IX

40. Guardianship.—All petitions for guardianship other than application over which the High Court has jurisdiction
shall be filed before the Family Court.

41. Every petition for guardianship when it is by a person other than the natural parent or natural guardian of the
said child shall be accompanied by a Home Study Report of the person asking for such guardianship and his/her
spouse, if any, prepared by an approved family welfare agency or a suitably trained social worker. A list of such
agencies and/or persons shall be prepared by the Principal Judge and Principal Counsellor in consultation with the
High Court.

42. When a petition for guardianship is filed by a foreigner or a non-resident Indian, the Court may accept a Home
Study Report prepared by a recognized Family Welfare Agency of the country where they reside.

43. Every petition for guardianship shall be accompanied by—

(i) Two recommendations from respectable members of the community.
(ii) A Salary Certificate or statement relating to annual income of the petitioner and his financial position.
(iii) A Health Certificate of the petitioner and his/her spouse signed by a medical practitioner as also medical
report regarding sterility of petitioner and/or spouse.
(iv) A Health Certificate of the child proposed to be taken in guardianship signed by a medical practitioner and
counter-signed by the petitioner.
(v) A Child Study Report of the child proposed to be taken in guardianship together with photograph of the
child. Such report shall be in Form No. 3 prescribed in the Appendix when the child is institutionalized or
court committed. The report shall be counter-signed by the petitioner.
(vi) A declaration from the proposed guardian and his/her spouse, if any, expressing their willingness to take
the child in guardianship.

44. When a petitioner applying for guardianship is foreigner or a non-resident Indian, the petition will also be
accompanied by—
(i) Permission from the country where the petitioner resides for the child to enter the country.
(ii) An undertaking by a recognized Family Welfare Agency of the country concerned to supervise the child in
the Home of the petitioner until the child is legally adopted.

45. In granting a petition of a foreigner or a non-resident Indian for guardianship, the Court shall satisfy itself that
the child can be legally adopted under the law of the country where he/she resides.

46. The Court may direct a foreigner or non-resident Indian petitioner to give a bond for such amount as it may think
proper for the return of the child to India In the case of any difficulty.

47. While granting a petition for guardianship, the Court may pass such orders as it may deem proper for the
financial security of the minor.

48. When the child proposed to be given in guardianship is an abandoned child the Court may satisfy itself that the
consent of the natural mother was taken at the time of abandonment of the child or at any time thereafter to the
child’s being given in guardianship to another person. The name of the natural mother or natural father as also the
consent letter from natural parent shall be treated as confidential. Consent letter shall be kept in Court in sealed
cover.

49. When the child being placed in guardianship is an abandoned child from an institution for abandoned children,
the institution shall file an affidavit setting out the circumstances under which the child was abandoned. The affidavit
shall also be set out whether the institution is agreeable to the child being given in guardianship to the petitioner.

50. The Court, in its discretion, may not entertain a petition for guardianship by a foreigner or a non-resident Indian
unless the Court is satisfied that adequate attempts for at least three months or such other period as the Court
deem fit have first been made to place the child in an Indian Horne. For this purpose the Court may ask the
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

petitioner to obtain a no-objection letter from a Voluntary Co-ordinating Agency or any other similar organization
working for the placement of children in Indian Homes.

51. When the proposed guardian is related to the child, the Court may dispense with any of the above provisions.

52. A guardianship order shall be in the Form No. 4 prescribed in the appendix with such modifications as may be
required in each case. A photograph of the child signed by an authorized officer of the Court shall be attached to
the order.

53. A copy of every guardianship order appointing a foreigner or a non-resident Indian as guardian shall be
forwarded to the Ministry of Social Welfare, Government of India and Social Welfare and Cultural Affairs
Department, Government of Uttar Pradesh, Lucknow.

54. The Court shall have the power to waive the requirements of any of the above rules relating to petitions for
guardianship in a suitable case.

55. In case of a child placed in guardianship, the Court may, at any time, direct a counsellor attached to the Court to
supervise the placement of the child and submit a Report or Reports thereon to Court in such manner as the Court
may deem fit.

CHAPTER X

56. Miscellaneous.—The High Court may authorize and empower Judge of the Court or if, there be more Judges
than one in a Court the Principal Judge of such Court to appoint so many and such other ministerial officer as may
be necessary for the administration of justice and due execution of all powers and authorities exercisable by a
Court:

Provided that the appointments of officers and ministerial staff shall be subject to any rule or restriction as may be
prescribed or imposed under the Act.

57. The proceedings before the Court shall be heard and disposed of as expeditiously as possible, preferably within
3 months, and in achieving this objective the rules or procedure may not regidly be adhered to.

58. Every Principal Judge, and Judge of the Court shall be under administrative and disciplinary control of the
District Judge and overall control of the High Court.

59. For carrying on the purpose of the Act and for ensuring the uniformity of practice to be observed by Courts and
for expeditious disposal, the High Court may from time-to-time, supervise and inspect the Courts and issue
directions/circulars, etc., to the Courts.

60. No Judge shall hear or decide any case to which he is party or in which he/she is personally interested.

61. The Courts may use such forms and containing such particulars as may be approved by the High Court.

62. The High Court may require Courts to maintain such registers and records and containing such particulars as
may be approved by the High Court.

63. A proceeding before the Court shall not become invalid by reason only of non-compliance with any of the
procedural requirements prescribed in these rules.

FORMS

FORM No. 1

In the Family Court at ..........................

Petition No. ..........................

Between and
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Mrs./Mr. .......................... Mrs./Mr. ..........................

W/o or S/o .......................... W/o or S/o ..........................

Age .......................... Age ..........................

Occupation .......................... Occupation ..........................

Present Address .......................... Present Address ..........................

Permanent ................. Permanent .................

Address/residence Address/residence

Petitioner Respondent

Petition under section ..........For ......

The abovenamed Petitioner respectfully submits as under:—

1. That the Petitioner and Respondent are legally married ........and ........Their marriage was solemnized
on........at........according to .....customs. After the marriage both the Petitioner and Respondent had been
living/lived together as husband and wife at........out of the wedlock the couple was blessed with the child
aged........named ........and another child aged........named ........
2. The Petitioner submits that (give the grievance of the Petitioner against the Respondent with full
particulars).
3. This petition is not presented in collusion with the Respondent and there is no unnecessary or improper
delay in institution of these proceedings.
4. The Petitioner has no means of livelihood for her/his maintenance/limited resources, which are not
sufficient for her/his livelihood and for child/children, living with her /him and thus prays for interim
maintenance of Rs. ........, for which the Petitioner called upon the Respondent to provide such
maintenance but no amount has been received by the Respondent.
5. Cause of action for the petition arose on........(date) when the marriage of the Petitioner with the
Respondent was performed. It also arose on several occasions when the Respondent behaved and
committed ........
6. The Petitioner and the Respondent both last lived together at........or where the marriage took place or
where the Respondent at the time of presentation of the petition resides which is within the territorial
jurisdiction of this Hon’ble Court.

PRAYER
7. The Petitioner, therefore, prays that this Court may be pleased to pass an order directing ........

Place.......................... .

Date..........................

Petitioner

VERIFICATION

I, ........daughter/son of........aged ........resident of ........do hereby declare that the above facts slated in the petition
are true and correct to the best of my knowledge, information and belief. Hence ........

Verified on this the........day of month.......

Petitioner.

FORM No. 2
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

In the Family Court at.......................... .

Petition No. ..........................

Between and

Mrs./Mr. .......................... Mrs./Mr. ..........................

W/o or S/o .......................... W/o or S/o ..........................

Age .......................... Age ..........................

Occupation .......................... Occupation ..........................

Present Address .......................... Present Address ..........................

Permanent ................. Permanent .................

Address/residence Address/residence

Petitioner Respondent

Petition for maintenance under section 125 of Criminal Procedure Code

The abovenamed Petitioner respectfully submits as under:

1. That the Petitioner and Respondent are legally married ........and........ Their marriage was solemnized
on.................... at................ according to..............customs. After the marriage both the Petitioner and
Respondent had been living/lived together as husband and wife at ............ (or where the marriage took
place or where the Respondent resides). Out of the wedlock the couple was blessed with the child aged
............ named ............ and another child aged ..................... named ..................
2. The Petitioner submits that (give the grievance of the Petitioner against the Respondent with full
particulars);
(a) ............
(b) ........
3. Petitioner has no resources /limited resources to maintain herself and her minor children. She is presently
depended upon her parents, who have their own expenses and may not be in a position to support the
Petitioner for long period.
4. That the Petitioner on ............ called upon the Respondent to provide money for maintenance for herself
and her minor children but as yet no amount towards maintenance has been received from the
Respondent.
5. That the Respondent is a person with means and has the following property, monthly income, etc.
(a) ............
(b) ........
(c) ............
6. In the circumstances stated above there is no alternative for the Petitioner and her minor children but to
approach this Court for maintenance.
7. That during the pendency of petition the Petitioner with no resource/limited resource to maintain her /him
and minor child/children may be provided with interim maintenance.

PRAYER

The Petitioner, therefore, prays that this Court may be pleased to pass an order directing the Respondent to pay
............ towards maintenance of the Petitioner and Rs.............. towards maintenance of the minor child/children.
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Place.......................... .

Date..........................

Petitioner

FORM No. 3

In the Family Court at...........................

Petition No. ........of 20.........

……............... ……...............

Petitioner versus Respondent

To........

Whereas, the abovenamed Petitioner has instituted a petition against you, as set out in the petition (annex the
Petition);

You are hereby required to file in this Court as appearance in person or a Vakalatnama with the permission of the
Court, within three weeks from the service of this summons upon you;

And whereas, the suit will be placed for directions on the board of the Judge on the ........day of ........20.........;

You are hereby summoned to appear before the judge to answer the Petitioner’s claim on the said........day of
........20....... at 11.00 O’clock in the forenoon; and

Take notice that on the day before mentioned after hearing parties who appear, directions will be given by the
Judge as to the date of hearing before a Counsellor of the Family Court and other matters concerning the petition;
and

Take further notice that if you fall your appearance in person or a Vakalatnama as directed above, or if you fail to
appear before the Judge on the day before mentioned the petition may be ordered to be set down on Board on the
same day or any subsequent day as “undefended” and you will be liable to have a decree or order passed against
you.

Witness ........Principal Judge ........aforesaid, this ........day of……..20.......

.......................................

Seal Designated Officer

The........day of……..20.......

Petitioner/Advocate for the Petitioner

Address .........................

FORM No. 4

In the Family Court at.......................... .

Petition No ........of 20.......

In the matter of the Guardians and Wards Act, 1890

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

And

In the matter of the appointment of Guardian of the Person of a Male/female minor ........as inmate of........Petitioner

Upon reading the petition of ........the Petitioner therein dated........for the appointment of the Petitioner as the legal
guardian of male/female minor ........born on........and to adopt the said minor as his son/daughter according to the
Laws of.............. and upon hearing ........in support of said petition and upon ........agreeing to comply with the
guidelines contained in the Judgment of the Supreme Court of India In Writ Petition (CRL) No. 1171 of 1982 (Laxmi
Kant Pandey v. Union Bank of India, AIR 1984 SC 469 [LNIND 1984 SC 30]) and upon reading the Affidavit
of................ consenting to the appointment of the Petitioner as the legal guardian of the said minor and upon
considering the representation made by ........ and upon hearing ........the representation made by ........and upon
hearing................... the representative of the said ........and upon the Petitioner ........hereby giving an Undertaking
to this Honourable Court to produce the said minor whenever required and further undertaking to communicate the
address of the said minor to the authorities of........ by ........of every year and further undertaking to take proper
care, look after, educate and to bring up the said minor as if she/he was a child of the Petitioner and further
undertaking to treat the said minor on an equal fooling with his natural and/or adopted children, if any, in all matters
of maintenance, education and succession and before taking the said minor out of India the Petitioner further
undertaking to execute a Bond either personally or through his duly constituted attorney in India in favour of the
Designated Officer of this Honourable Court in the sum of Rs.........to repatriate the said minor to India by air should
it become necessary for any reason to do so and further undertaking to adopt the said minor ........ Within a period
of two years after the arrival of the said minor to his home according to the Laws of ........and further undertaking to
submit to this Honourable Court every three months for the first two years and every six months for the next three
years progress report of the said child (along with his/her recent photograph) made or verified as correct by the
Organization which made the Home Study Report herein regarding the said minor’s moral and material progress
and her adjustment in the Petitioner’s family with the information of the date of arrival of the said minor, from India
to the Petitioner’s Home and the true copy of the Adoption Order with the copies of the said reports to........the said
and further ........the agency who has submitted the same study report of the Petitioner agreeing that in case of
disruption of the Petitioner’s family before adoption the said Agency shall take care of the minor and find a suitable
alternative placement for it with the approval of the institution whose inmate the minor is and reports such
alternative placement to the Honourable Court and also to the........, I do order that the notice under section 11 of
the Guardians and Wards Act, 1890 be and the same is hereby dispensed with and I do further order that the
petitioner ........ be and he is hereby appointed guardian without security and without remuneration of the said minor
........born on........whose latest photograph duly certified as such........ and countersigned by on officer of this
Honourable Court is attached hereto and marked as Exhibit ‘A’ and now in the custody and care of the authorities of
the said........and I do further order that after executing the Bond as aforesaid the Petitioner ........be and he is
hereby granted leave to remove the said minor from the jurisdiction of the this Honourable Court to take him/her
away to......... or wherever he may desire and for that purpose make an application to the passport authorities or
any other authorities to take away the said minor out of the Jurisdiction of this Honourable Court and I do hereby
lastly order that the Petitioner herein to pay a sum of Rs.........to the said ........ towards their costs of the petition.

...........................Date........................... this........day of……..20.........

(Delete whatever is not applicable).

Advocate for the Petitioner

Judge

EXHIBIT “A”

Certified latest photograph of male/female minor ..................born on...............

Designated Officer

Family Court

FORM No. 5

CHILD STUDY FORM

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

Information of the child to be placed in Guardianship

Name of the child:

Photo of the child:

Name of the Institution:

Address:

PART I

1. Name of the child ..........................

2. Reference No. as per General Register of the Institution ..........................

3. Present Age ..........................

4. Sex ..........................

5. Religion (if known) ..........................

6. Date of Birth (if available) ..........................

7. Place of Birth (if available) ..........................

PART II

1. Petition No. ..........................

2. Name of the Petitioner ..........................

3. Complete address of the Petitioner ..........................

*PART III

(LEGAL DATA)

1. Name of the Committing Court ..........................

2. Age of the child at the time of commitment ..........................

3. Date of order of commitment ..........................

4. Period of commitment ..........................

5. Final date of release ..........................

6. Section of the ...............................Act ..........................

7. Date of admission to your Institution please enclose a copy ...............................

of the Court Commitment Warrant

Please enclose a copy of the report of the Probation Officer which he/she has submitted to the Juvenile Court at the
time of commitment of the child.

PART IV

(SOCIAL DATA)

1. How the child came to your Institution—

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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

(a) Admitted directly ......................................................................................... .

(b) Vacancy was reserved and then get committed ...................................
(c) Transfer from any other institution and if so which one........................
(d) Any other source ..........................................................................................
2. Circumstances under which the child came to the original institution
.....................................................................
3. Reasons for seeking protection in the institution ...................................... .
4. Information about the relatives..................................................................... .
5. In case if they are alive, have they agreed to give away the child in adoption/guardianship and, if so,
whether writtenconsent has been obtained .............................................................. ..
6. Whether the relatives have established any contacts with the child after his/her admission to your institution
............................... .
7. If the child is purely destitute, give factors which will show that
.......................................................................................
8. Any other information on which you would like to add ........................

PART V

(BEHAVIOURS OBSERVATIONS)

1. How long the child is with you in your institution? ............................

2. Attitude towards other inmates....................................................................... .
3. Relationship towards relatives, staff and other adults.............................
4. Intelligence (if and where possible, I.Q. Report should be
enclosed)............................................................................. ..
5. General personality and description of the child ................................... ..
6. Play activity and any specific talent, .............................................................. .
7. Observer’s impressions about the child........................................... ..
8. Please indicate how the parent plan of rehabilitation will be useful to the child taking into consideration the
child’s needs and temperament .................................................................. ..
9. If the child is school-going give a detailed report about his/her standard, attendance, general interest in
studies progress effects, if any.................................................... ..
10. Any other information ................................................................... .

PART VI

Physical and Medical Report Form enclosed

PART VII

1. Have you reviewed the Home Study Report of the adoptive parents/guardians and do you feel the
placement of this child with this family is suitable? ..........................
2. Have the adoptive parents seen the details of child whom they wish to bring up and have they approved of
the child after knowing the general conditions, physical or mental defects, etc. If so, please give a copy of
the certificate wherein the adoptive parent/guardian have given their consent in writing that they have
examined the Child Study Report and accept the proposed child ............................................................ ..

PART VIII
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

I,................Shri/Shrimati................Superintendent.. ..............hereby certify that the information given in this form

about the child is correct.

I also enclose herewith the certificate/attested copies of the following documents

(1) Copy of the Court Warrant
(2) Copy of the report of the Probation Officer
(3) Consent of the Parents to give away the child
(4) Consent of the adoptive parents to accept the child

Place..........................

Signature

Date..........................

Name

Designation

..........................

Designated Officer.

Note.—Date of departure of the child from the country should be conveyed to the Director of Child Welfare and
Consulting Agency for the purpose of follow-up.

1 Part III to be filed in for Court committed children only.

1 Published in the Gazette of India Extra., Pt. II, Sec. 3(ii), dated 13-2-1995.
* The Family Courts Act, 1984 has came into force in West Bengal on 1st November, 1991.
1 Noti. No. 9338/D-4104/XX1-B/C.G./07, dated 30th October, 2007, published in the Chhatttisgarh Government Rajpatra
(Asadharan), dated 31-10-2007 (w.e.f. 31-10-2007).
1 Published in Jharkhand Gazette, Extra., No. 226 dated July 21st, 2004 and issued by Hon’ble Jharkhand High Court on
14-7-2004.
1 These rules were published under Notification No. G.O. (P) No. 9/89, dated 17-1-1989 in K.G. No. 12, dated 21-3-1989.
1 Part III to be filled for court-committed children only.
1 The above documents and complete address of parents/guardians (wherever available), to be treated as confidential
and sent directly to the Director (Child Welfare) and the consulting agency (Indian Council of Social Welfare).
1 Published in M.P. Rajapatra, dated 13-10-1988 at pp. 1907-1910.
1 Published in the Madhya Pradesh Gazette, Extra., dated 20-6-2002 (w.e.f. 20-6-2002).
1 Published in Maharashtra Shasan Rajpatra, dated 25-16-1987, Pt. IVA, p. 584-588.
2 Rule 3, deleted by the Notification No. HMA, 1687/619 (75)-X, dated 25th September, 1987.
1 Subs. by Notification No. HMA, 1987/619/(75)-X, dated 25th September, 1987, for “and adoption”.
2 Deleted by Notification No. HMA, 1987/619(75)-X, dated 25th September, 1987, for “and adoption”.
1 Published in Maharashtra Government Gazette, dated 1-9-1988, Pt. IV-C at pp. 425-438.
1 Published in Orissa Gazette, Extra., No. 1338, dated 19-10-1990 (w.e.f. 19-10-1990).
2 Subs. by S.R.O. No. 627, dated 25-6-1994.
1 Published in Bihar Gazette, Pt. III, dated 8-5-2002 (w.e.f. 8-5-2002).
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APPENDIX XII FAMILY COURTS RULES OF DIFFERENT STATES

1 Vide G.S.R. 12/C.A. 66/84/S.21/2005, dated 11th March, 2005, published in the Punjab Gazette (L&S), Pt. III, dated 18-
3-2005 (w.e.f. 18-3-2005).
1 These Rules are framed by State of Rajasthan by exercising powers under section 23 of Family Courts Act or Rules
framed by High Court of Rajasthan under section 21 of the said Act, see after the end of these rules.
2 Published in the Rajasthan Gazette, Extra., Pt. IV(Ga), dated 13th March, 1992.
1 Vide Notification No. 288/Vll-Nyaya-2-732/86, dated 4th April, 1995 and published in the U.P. Gazette, dated 4th April,
1995.
2 Subs. by Notification No. 98/Vll-Nyaya 2-2002-732-86, dated 11-7-2002 (w.e.f. 11-7-2002).
1 Subs. by Notification No. 98/VII-Nyaya 2-2002-732-86, dated 11-7-2002 and published in the U.P. Gazette, Extra., Pt.
4, Sec. (Kha) (w.e.f. 11-7-2002).
1 Vide Notification No. 1066/VII-Nyaya-2-2006-732-86, dated 14th September, 2006, published in the U.P. Gazette,
Extra., Pt. 4, Sec. (Kha), dated 14th September, 2006.
* Now the Child Marriage Restraint Act, 1929 (Act No. 19 of 1929) repealed by section 21 of the Prohibition of Child
Marriage Act, 2006 (Act No. 6 of 2007).
* Part III to be filled in for Court committed children only.

End of Document