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The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955
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Sec 1 of the Hindu Marriage Act –

Short title and extent:-

ACT NO. 25 OF 1955 1* [18th May, 1955.]

An Act to amend and codify the law relating to marriage among Hindus. BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:-

(1) This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir 1, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

——-

1. The Act has been made applicable to the State of Jammu and Kashmir by the J&K Hindu Marriage Act, 1955 (J&K Act 7 of 1955).

Sec 2 of the Hindu Marriage Act –

Application of Act:-

(1) This Act applies –

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samam,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation:-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding any thing contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

State Amendment

Pondicherry :

In section 2, insert the following sub-section:—

“(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry .”

[ Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).]

Comments

Applicability of the Act

The marriage between the members of Scheduled Tribes is not governed by the Hindu Marriage Act in the light of section 2(2). Rather their marriage would be governed only by their Santhal customs and usage. Dr. Surrajmani Stellee K ujur v. Durga Charan Hansdah , AIR 2001 SC 938.

Sec 3 of the Hindu Marriage Act –

Definitions:-

In this Act, unless the context otherwise requires,-

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and

Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(b) “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 matters dealt with in this Act;

(c) “full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

(d) “uterine blood”- two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation.-In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;

(e) “prescribed” means prescribed by rules made under this Act;

(f) (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;

(g) “degrees of prohibited relationship” – two persons are said to be within the “degrees of prohibited relationship”-

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

(ii) if one was the wife or husband of a 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;

Explanation.-For the purposes of clauses (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood and all terms of relationship in those clauses shall be construed accordingly.

Sec 4 of the Hindu Marriage Act –

Over-riding effect of Act:-

Save as otherwise expressly provided in this Act:-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

Sec 5 of the Hindu Marriage Act –

Conditions for a Hindu marriage:-

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;

1[(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

(iii) the bridegroom has completed the age of 21 [twenty-one years] and the bride, the age of 18[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;

Sec 6. Guardianship in marriage:-

[Rep. by the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), sec. 6 and Sch. (w.e.f. 1-10-1978)].

Sec 7 of the Hindu Marriage Act –

Ceremonies for a Hindu marriage:-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the 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.

Sec 8 of the Hindu Marriage Act –

Registration of Hindu marriages:-

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) 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 direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

Sec 9 of the Hindu Marriage Act –

Restitution of conjugal rights.-

1[***] 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.

2[ 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.]

3[***]

1. The brackets and figure “(1)” omitted by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976).

2. Ins. by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976)

3. Sub-section (2) omitted by Act 68 of 1976, sec. 3(b) (w.e.f. 27-5-1976).

Sec 10 of the Hindu Marriage Act –

Judicial separation:-

1[(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 petition, rescind the decree if it considers it just and reasonable to do so.

Sec 11 of the Hindu Marriage Act –

Void marriages:-

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 1[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Sec 12 of the Hindu Marriage Act –

Voidable marriages:-

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after for force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall 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 the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(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 grounds for a decree.

Sec 13 of the Hindu Marriage Act –

Divorce:-

(1) Any marriage solemnized, whether before or after the commencement of the 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 the 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 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 include 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

(v) has been suffering from veneral 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 willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
(1-A) 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 upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

(2) 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 the 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;

(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, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (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;or

(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 Law (Amendment) Act, 1976.

13A. Alternate relief in divorce proceedings: —

1[13A. Alternate relief in divorce proceedings. —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 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.]

Comments

Breakdown theory 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; Dharmendra Kumar v. Usha Kumar , AIR 1977 SC 2218.

——–

1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).

13B. Divorce by mutual consent: –

1[13B. Divorce by mutual consen:. —(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 solemnised 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 solemnised 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.]

COMMENTS

Period of six months not mandatory

As provided in sub-section (2) of section 13B the period of six months cannot be taken as mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by mutual consent will be frustrated, especially when the parties have live separately and there was no chance of reunion; K. Thiruvengadam v. Nil , AIR 2008 Mad 76.

Transitional period

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move.

In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

——–

1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).

* Date of commencement 27-5-1976.

Also Read :

                                                Grounds for Divorce in India

                                                 Divorce Under Muslim Law

Sec 14 of the Hindu Marriage Act –

No petition for divorce to be presented within three years of marriage:-

(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, 1[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 2[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 3[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 4[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 5[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 6[said one year].

———

1. Subs. by Act 68 of 1976, sec. 9(i)(a), for certain words (w.e.f. 27-5-1976).

2. Subs. by Act 68 of 1976, sec. 9(i)(b)(1), for “before three years have elapsed” (w.e.f. 27-5-1976).

3. Subs. by Act 68 of 1976, sec. 9(i)(b)(2), for “expiry of three years” (w.e.f. 27-5-1976).

4. Subs. by Act 68 of 1976, sec. 9(i)(b)(3), for “expiration of the said three years” (w.e.f. 27-5-1976).

5. Subs. by Act 68 of 1976, sec. 9(ii)(a), for “expiration of three years” (w.e.f. 27-5-1976).

6. Subs. by Act 68 of 1976, sec. 9(ii)(b), for “said three years” (w.e.f. 27-5-1976).

Sec 15. Divorced persons when may marry again:-

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:

1[***]

Comments

Scope and Object

The words, “has been dissolved by decree of divorce” in section 15 mean end of relationship by the intervention of Court and it includes a decree under sections 11, 12 and 13 of the Hindu Marriage Act; Lata Kamat v. Vilas , AIR 1989 SC 1477.

Succession on the death of Hindu female

Mother and all her seven daughters would get equal share in the property. Mother executed the will in favour of one of the daughter. Thus, only 1/8 share in the estate would go to the said daughter on the basis of the will executed by her mother; Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande , AIR 2003 SC 3109.

——–

1. Proviso omitted by Act 68 of 1976, sec. 10 (w.e.f. 27-5-1976).

Sec 16 of the Hindu Marriage Act –

Legitimacy of children of void and voidable, marriages:-

1 Legitimacy of children of void and voidable, marriages.- Where a decree of nullity is granted in respect of any marriage under section 11 or 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 it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity :

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity 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.

COMMENTS

Status of Children from void & voidable marriage

Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only a laudable and noble act of the legislature indeed in enacting section 16 to put an end to a great social evil; Jinia Keotin v. Kumar Sitaram Manjhi , (2003) 1 SCC 730.

——–

1. Subs. by Act 68 of 1976, sec. 11, for section 16 (w.e.f. 27-5-1976).

* Date of commencement 27-5-1976.

Sec 17 of the Hindu Marriage Act –

Punishment of bigamy:-

Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

COMMENTS

Condition for second marriage to be valid

The mere admission by the respondent that he had contracted second marriage is not enough. The impugned marriage must have been solemnized that is, the marriage should have been celebrated or performed with proper ceremonies and in due form; Bhaurao v. State of Maharashtra, AIR 1965 SC 1564.

Essential ceremonies required for bigamy

If the marriage is not a valid marriage, it is no marriage in the eyes of law. If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. Having regard to section 17 of the Act the essential ceremonies set out under the Act had not been conducted and merely because there was distribution of sugar or gur it would not constitute a valid marriage; Surjit Kaur v. Garja Singh, AIR 1994 SC 135.

Sec 18. Punishment for contravention of certain other conditions for a Hindu marriage:-

Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), 1[and (v)] of section 5 shall be punishable—

2[(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;]

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; 3[***]

4[***]

———

1. Subs. by Act 2 of 1978, sec. 6 and Sch., for “(v) and (vi)” (w.e.f. 1-10-1978).

2. Subs. by Act 6 of 2007, sec. 20, for clause (a). Clause (a) before substitution, stood as under:

“(a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;”.

3. The word “and” omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

4. Clause (c) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

Sec 19. Court to which petition should be made:-

1[19. Court to which petition shall be presented. —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 solemnised, 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

2[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation 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.]

Jurisdiction of the Court

If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel , AIR 2003 MP 189.

———

1.. Subs. by Act 68 of 1976, sec. 12, for section 19 (w.e.f. 27-5-1976).

2. Ins. by Act 50 of 2003, sec. 4 (w.e.f. 23-12-2003).

Sec 20. Contents and verification of petitions:-

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded 1[and, except in a petition under section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

———

1. Subs. by Act 68 of 1976, sec. 13, for “and shall also state” (w.e.f. 27-5-1976).

21. Application of Act 5 of 1908.-

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 (5 of 1908).

Comments

Decree under Hindu Marriage Act and decree under Code of Civil Procedure are not same

Decree under the Hindu Marriage Act and decree under Code of Civil Procedure are not of the same nature and character. A decree passed under section 10 of the Hindu Marriage Act may be rescinded by the Trial Court itself “on the application by the petition of either party on being satisfied of the truth of the statement made in petition if it consider just and reasonable to do so”. But decree passed under Code of Civil Procedure can in no circumstances be rescinded, altered, cancelled, or modified by the Trial Court; such decree may be rescinded or changed only by the Higher Court; Baby Deb v. Ajit Deb , AIR 2008 Gau 49.

21A. Power to transfer petitions in certain cases :—

1[21A. Power to transfer petitions in certain cases. —(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 thereafter 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 court, 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 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.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

21B. Special provision relating to trial and disposal of petitions under the Act: —

1[21B. Special provision relating to trial and disposal of petitions under the Act. —(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests 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.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

21C. Documentary evidence:-

1[21C. Documentary evidence. —Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

Sec 22. Proceedings may be in camera and may not be printed or published:-

(1) a proceeding under this Act shall be conducted in camera if either party so desires or if the court so thinks fit to do, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except 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.

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1. Subs. by Act 68 of 1976, sec. 15, for section 22 (w.e.f. 27-5-1976).

Sec 23 of the Hindu Marriage Act –

Decree in proceedings:-

(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 grounds specified in sub-clause (a), sub clause(b) and sub-clause (c) of clause (ii) of Section 5 is not 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 subsection(1) of Section 13, the petitioner has not in any manner been accessory toor connived at or condoned the act or acts complained of, or where the ground orthe petition is cruelty the petitioner 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 proceeding, 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.
(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 (v), 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 doadjourn 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.

(4) 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.
23-A. Relief for respondent in divorce and other proceedings.-
In any proceedings 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.

Sec 24. Maintenance pendente lite and expenses of proceedings:-

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 the petitioner the expenses of 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.

Sec 25. Permanent alimony and maintenance:-

(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 purposes 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 of the applicant, 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 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 re-married 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.

Sec 26 of the Hindu Marriage Act –

Custody of children :-

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 proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

Sec 27. Disposal of property:-

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.

Sec 28. Appeals from decrees and orders:-

(1) All decrees made by Court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be
appeal-able as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil
jurisdiction.
(2) Orders made by the Court in any proceedings under this Act, under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appeal-able if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

28(A) Enforcement of decrees and orders:-

All decrees and orders made by the Court in any proceeding under this Act, shall be enforced in the like manner as
the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being enforced.

Sec 29. Savings:-

(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religion, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised 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.
(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial, separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to effect the provisions contained in the Special Marriage Act, 1954 (43 of 1954), with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.

30. Repeals.- (Repealed by the Repealing and Amendment Act, 1960 (58 of 1960), Sec. 2 and the First Schedule.)

Sec 30. Savings:-

Nothing contained in this Act shall affect any adoption made before the commencement of this Act*, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.

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*Date of commencement 21-12-1956.

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