Tag Archives: Hindu Marriage Act 1955

Divorce Petition – Before Lapse of One Year From the Date of Marriage

In Manish Sirohi v. Smt. Meenakshi, AIR 2007 All 211, the husband made an application for divorce and the wife took a stand in the written statement that she is not inclined to continue marital relationship with her husband. However the said application was rejected by the court below on the ground that as per Section 14 of the Act, court cannot entertain any petition for dissolution of marriage unless at the date of presentation of the petition one year has elapsed from the date of the marriage. When the matter reached the High Court, it was held as under:

            “We have gone through the provision contained under the proviso to section 14 of the Hindu Marriage Act and we find that the High Court can allow to present the present the petition before lapse of one year from the date of marriage on the ground that the lapse is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. When differences have occurred which cannot be compromised if at this stage they are separated, they can be able to enjoy their happy marital life elsewhere. Continuance of the litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all. Both the parties have withdrawn their allegations and counter allegations against each other.”

            In catena of cases relating to  matrimonial dispute, the Hon’ble Apex Court has observed that matrimonial disputes have to be decided by courts in a pragmatic manner keeping in view the ground realties. For this purpose a host of facts have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offspring. A. Agarwal v. Principal Judge, 2019 (2) AWC 1735.

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Order for – Interim Maintenance

An order under Section 24 of the Hindu Marriage Act, 1955 does not decide in any manner rights and liabilities of the parties raised in matrimonial petition. The lis in matrimonial petition continues even after disposal of the application under Section 24 of the Act, 1955 as the object of the provision is to enable the indigent, weaker spouse to resist the action of others and to maintain himself or herself, as the case may be. The maintenance awarded under Section 24 of the Act, therefore, can only be said to be an interim maintenance, which would be payable during the continuance of the substantive proceedings under the Act. However, with the termination of the said proceedings, the order under Section 24 of the Act, will lose its efficacy. That means that the said order cannot inure after termination of petition.

       Further, that no appeal shall lie against an interlocutory order under Section 19(1) of the Family Courts Act, 1984, the appeal filed against the order under Section 24 of the Hindu Marriage Act, 1955 cannot be said to be in continuation of the original proceedings. Smt. Madhu Mishra v. Prem Kumar Mishra, 2019 (1) AWC 761.

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Second Marriage – When Permissible during Pendency of Appeal

Section 15 of the Hindu Marriage Act provides that it shall be lawful for either party to marry again after dissolution of a marriage, if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

       In case during the pendency of the appeal, there is a settlement between the husband and wife, and after entering into a settlement, he does not intend to contest the decree of divorce, his intention can be made clear by filing an application for withdrawal. In that case, he does not have to wait till a formal order is passed in the appeal or otherwise his marriage is unlawful. Following the principles of purposive construction, it was held that the restriction placed on a second marriage in Section 15 of the Hindu Marriage Act, till the dismissal of an appeal, would not apply to a case where parties have settled and decided not to pursue the appeal. Anurag Mittal v. Mrs. Shaily Mishra Mittal, 2019 (132) ALR 725.

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Filed under Matrimonial Dispute, Second Marriage

Divorce Proceedings – Abuse of Process of Court

The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients under Section 13 of the Hindu Marriage Act are made out, and under the given circumstances there is cruelty, the Court should either make effort to settle the dispute or relationship has to be brought to a complete end. One party to the proceeding cannot be permitted to take advantage and cannot be permitted to abuse the process of law court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing him. Such type of attitude by the respondent (wife) cannot be permitted coupled with the fact that the order happens to be an ex parte order because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.

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Cruelty – Levelling False Allegations

Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In case the wife makes reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act,1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse leveling false accusations against the other spouse would be an act of cruelty. Raj Talreja v. Kavita Talreja, 2017 (123) ALR 835.

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Long Separation – Relevant for Dissolution of Marriage

In Smt. Arti Pandey v. Vishnu Kant Tiwari, 2012 (95) ALR 494, it was held that when the wife had shown no inclination to continue with the matrimonial bond, long separation would be a relevant ground in considering a plea for dissolution of marriage. The court can also not be oblivious of the serious allegations leveled by the husband against the wife. Whether or not allegation of adultery is established on the basis of evidence, the fact remains that the respect for each other is seriously dented. There is a clear rupture of matrimonial bond between the parties, and it would be unjust to insist upon the parties to continue with marriage, in such circumstances. Mamta Singh v. Lakshman Singh¸2018 (131) ALR 137.

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Order for Maintenance – Cannot be Set Aside if the Wife refuses to stay with husband

In the case of Saranan Banerjee v. State of Jharkhand, 2007 (2) AIR 82 (Jhar), it was held that an order of maintenance would not be set aside merely on the ground that wife refused to live with the husband despite decree for conjugal rights where she alleges torture and ill-treatment. It was further held as under:

       “Finally it has been submitted that since the wife is not ready to live with her husband in spite of conciliation and efforts taken by the court and also in view of the decree of restitution of conjugal rights as claimed by the husband, the wife is not entitled to maintenance at all.

       The husband had obtained a decree under section 9 of the Hindu Marriage Act for restitution of conjugal rights as against the wife and in spite of conciliation and efforts she was not inclined to live with her husband on the plea that a case for the offence under Section 498-A, IPC was pending against the husband on the allegation of torture, misbehavior, demand of dowry and many other allegations and for such reason she was apprehensive at the hands of her husband. The judgment and decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is a decree, which cannot be executed by force. Therefore the maintenance amount awarded to the wife and her daughter cannot be sweeped and set aside only on the ground that she was not inclined to abide by the decree of the restitution of conjugal rights passed against her. Vimal Kumar Verma v. Kavita Verma, 2018 (105) ACC 394.

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