Tag Archives: hindu marriage act

Annulment of Marriage – Concealment of Material Facts

On a careful reading of Clause (c) of Section 12(1) of the Hindu Marriage Act, 1955, it will appear that both the parties, in case of adult, are obliged to divulge mutually and unequivocally the material fact or circumstances to each other before or at least at the time of marriage so much so that element of deception is ruled out. The words material facts or circumstances have not been defined or specified. It varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and the groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely , a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.

            In the case of Saswati Chattopadhyay v. Avik Chattopadhyay, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of the marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earlier marriage was dissolved by consent. When the matter reached to the Family Court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. On an appeal, the Calcutta High court endorsed the view taken by the trial court and observed that premarital status of a party is a material fact which the other party must know before imparting consent for marriage. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2019 (2) AWC 1369.     

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Divorce by Mutual Consent – Withdrawal of Suit

The person who institutes a suit, has every right to withdraw the same. Where the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility and the respondent (wife) withdrew her consent before the stage of second motion. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent (wife) further submitted that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She also stated that she never wanted divorce and is willing to live with the appellant (husband) as his wife. Consent should always be a free consent.

       Even if withdrawal application is filed after 18 months, the court is not bound to grant divorce decree by mutual consent. The court has to proceed with about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence and whether marriage can be saved. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. Rahul Kamal v. Sudha Pandey, 2018 (131) ALR 673.

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Disclosure Regarding Previous Marriage

      On a careful reading of Clause (c) ofSection 12(1) of the Hindu Marriage Act, it will appear that both the partiesin case of adult are obliged to divulge mutually and unequivocally the materialfact or circumstances to each other before or at least at the time of marriageso much so that element of deception is ruled out. The words material fact orcircumstances have not been defined or specified. It varies from one family toanother, according to culture, ethos and social system in ages and situation.For example in a conservative family having attachment with puritan society ina marriage inevitable and unerring expectation is that both the bride and groommust not have any record of prior marriage in any sense nor will have anymarriage in any sense, not even any premarital affairs with other boy or girl(as the case may be). They cannot think of even marrying outside their caste andcommunity, conversely, a family with liberal and cosmopolitan approach, thought,particularly in urban area will not mind in case of marriage even havingknowledge of background of prior marriage or premarital affair with other sexoutside their caste and community. In case of former, concealment of caste,community or background of prior marriage or premarital affairs before or atthe time of marriage is obviously extremely material and it amounts to fraud inobtaining consent.

       In the case of Saswati Chattopadhyaya v. Avik Chattopadhyaya, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earler marriage was dissolved by consent. When the matter reached the family court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2018 (131) ALR 566.

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Permanent Alimony – After Passing of Divorce Decree

In the event permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Hindu Marriage Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony thereafter. Smt. Poonam Sharma v. Vishnu Kumar, 2018 (130) ALR 490.

 

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Custody of Child –Dispute in a Foreign Country

The state of law as approved in Nithya Anand Raghavan v. State¸(2017) 8 SCC 454 is that if a child is brought from a foreign country, being its native country to India, the Court in India may conduct (a) summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a summary enquiry, the court may deem fit to order the return of the child to the country from where he/she has been removed unless such return is shown to be harmful to the child. Aximoatically thus, even in case of a summary enquiry, it is open to the court to decline the relief of return of the child to the country from where he/she has been removed irrespective of a pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation would be harmful to it. On the other hand, in case of an elaborate enquiry, the court is obligated to examine the merits as to where the paramount interest and welfare of the child lay and take note of the pre-existing order of the foreign court for the return of the child as only one of the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or elaborate, the court would be guided by the pre-dominant consideration of welfare of the child assuredly on an overall consideration on all attendant facts and circumstances.

In Surya Vadanan v. State of T.N., (2015) 5 SCC 450, two minor girls aged 10 years and 6 years respectively were British citizens by birth. Following intense matrimonial discords, the mother had left UK and had come to India with her two daughters. She also instituted a proceeding in the family court at Coimbatore seeking dissolution of marriage. It was held as under:

“However, if there is a pre-existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate enquiry, it must have special reasons to do so. An elaborate enquiry (as against a summary enquiry), it must have special reasons to do so. An elaborate enquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate enquiry should be conducted, the domestic court must take into consideration:

  • The nature and effect of the interim or interlocutory order passed by the foreign court.
  • The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.
  • The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the domestic court is also obliged to ensure the physical safety of the parent.
  • The alacrity with which the parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate enquiry.”

Vis-à-vis the renditions in V. Ravi Chandran v. Union of India, (2010) 1 SCC 174, Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591 and Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, the Hon’ble Apex Court in Nithya Anand Raghavan v. State, (2017) 8 SCC 454, distinguished the facts involved therein from the one under its scrutiny. While underlining that the considerations which impelled the court to adopt its summary approach/jurisdiction in directing the return of the child to its native country, did not in any way discount or undermine the predominant criterion of welfare and interest of the child even to outweigh neuter or offset the principle of comity of courts, if disapproved the primacy sought to be accorded to the order of the foreign court on this issue of custody of minor in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 though negated earlier in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and reiterated that whether it was a case of summary enquiry or an elaborate enquiry, the paramount consideration was the interest and welfare of the child so much so that the pre-existing order of a foreign court could be taken note of only as one of the factors. The alacrity or the expedition with which the applicant/parent moves the foreign court or the domestic court concerned, for custody as a relevant factor was also not accepted to be of any definitive bearing. This notion of “first strike principle” was not subscribed to and further the extrapolation of that principle to the courts in India as predicated in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 was also held to be in-apposite by adverting inter alia to Section 14 of the Guardian and Wards Act, 1890 and Section 10 of Civil Procedure Code.

In Nithya Anand Raghavan v. State, (2017) 8 SCC 454, while maintaining the custody of the child in favour of the mother in preference to the applicant father had required the mother to participate in the proceeding before the foreign court initiated by the respondent father therein. It was observed that the custody would remain with the respondent mother till it attained majority, leaving it at liberty then to choose its parent to reside with. Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.

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Matrimonial Dispute – When can a DNA Test be ordered

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.

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Hindu Marriage – Status of Wife

Hindu Marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book Digest of Hindu Law, Vol.II, described the status of wife thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: whether she ascends the pile after him or survives for the benefit of her husband, she is a faithful wife.”
Further Colebrooke in his book Digest of Hindu Law, Vol. II quoted the Mahabharata at page 121 thus:
“Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596.

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