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The Hindu Marriage Act, 1955
The Special Marriage Act, 1954
Section 9 in The Hindu Marriage Act, 1955
Section 13 in The Hindu Marriage Act, 1955
The Code Of Criminal Procedure, 1973

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Law Commission Report
Hindu Marriage Act,1955 And Special Marriage Act, 1954
LAW COMMISSION OF INDIA

FIFTY-NINTH REPORT

ON

HINDU MARRiAGE ACT, 1955
AND

SPECIAL MARRIAGE ACT, 1954.

MARCH, 1974



CONTENTS

CHAPTER l.----1ntroductory.
CHAPTER 2.--_--Proposa1s of the Ministry of Law.

CHAPTER 3.--Conditions of marriage under the Hindu Marriage Act. .
CHAPTER 4.----Restitution under the Hindu Marriage Act

CHAPTER 5.----Judicial separation under the Hindu Marriage Act

CHAPTER 6.--Nui1ity under the Hindu Marriage Act .

CHAPTER 7.---Divorce under the Hindu Marriage Act

CHAPTER 8.---Cert-ain matters of' procedure under the Hindu Marriage Act
CIIAPTER 9.--The Special Marriage Act. . . . .

CH.AP'I'ER 10.----Summary of recommendations.

APPENDIX 1.--Lctter from the Mini:sLer of Law, Justice and Cumgany Affairs

APi'ENI")[X 2.--Ri]l forwarded by the Ministry of Law. . . .

Page

14

40
52

56
57
65
73
9|
103

122
124

 



P. B. Gajendragadkar.
D. 0. No. F. 1(1)/74-L.C.

12, Tughlak Road,
NEW DELHI-11.

March 6, 1974.

My dear Minister,

Today, my colleagues and l have signed the Corn-
mission's Fifty--Ninth Report on the Hindu Marriage
Act, 1955, and the Special Marriage Act, 1954.

You may recall that this Report is the result of
the suggestion you had made in your letter addressed
to me on the 17th January, 1974. As requested by
you, the Commission took up the work on a priority
basis, and I am happy that we have been able to
complete the work Within a month and a half.

The appendices to the Report are being typed and
Mr. Bakshi, Member-Secretary, expects to 'forward
the entire Report to you some time next week. Since
I am leaving for Bombay en route to Geneva tomorrow,
I am sending this demi--oflicia,lf letter to you for your
information.

May I add that, since I took over as Chairman
of the Commission, we have made fourteen reports
so far; some of these are, no doubt, short documents
then deal with specific problems which the Commis-
sion thought needs immediate attention on the ground
of special justice. The present Report is our fifteenth
Report.

Yours sincerely,
(P. B. GAJENDRAGADKARJ

Hon'ble Shri H. R. Gokhale,

Minister of Law, Justice & Company Affairs,
Government of India,

New Delhi-1.



CHAPTER 1
INTRODUCTION

The present inqm'ry------its genesis and scope

1.1. On the 17th of January, 1974, the Minister of
Law, Justice and Company Afiairs addressed a com-
munication' to the Chairman of the Commission sug-
gesting that the Commission may examine the question
about revising the Hindu Marriage Act and the Spe-
cial Marriage Act on a 'priority basis' and forward
to the Union Government a Report at an early date.
Along with this letter, the Minister forwarded to the
Commission a draft BilI2 which had been prepared
by his Ministry after considering various suggestions
received from some Members of Parliament and the
general' public. The Minister. requested that the Com-
mission might examine the question as to whether it
would be reasonable and desirable to liberalise the

divorce provisions so as to reduce the period of'

waiting for divorce after a decree of judicial separa-
tion or restitution of conjugal rights and to eliminate
the period of restriction for remarriage after divorce.

It was further stated in this letter that the Draft
Bill proposed "to permit a right of divorce only to
the Wife" if she had obtained an order for maintenance
under section 488 of the Code of Criminal Procedure,
and desired that the Commission T may consider
whether, in such a case, a similar right should be con-
ferred on the husband. ,

The suggestions thus made by the Minister in his
communication for examination of the two Acts con-
stitute the genesis of the present inquiry. '

1.2. Since the Commission was thus entering upon
an inquiry in regard to the revision of the relevant
provisions of the two Acts, it examined not only the
draft Bill forwarded to it, but considered the other

1. Hppendix 1." C --"/ '__W "-57-
2. Appendix 2.



2

provisions of the 'Acts not covered by the draft Bill.
The present inquiry is thus not confined to the amend-
ments proposed in the draft Bill, but examines the
problem in relation',-to: all the provisions of the two
Acts. That is the extent of the present inquiry. In
the course of the Report, the provisions made in the
draft Bill will, for the sake of brevity, be described
as "pr:oposals".

Significance of the Hindu Code

1.3. The Hindu Marriage Act, with which the pre-
sent inquiry is concerned, was passed by Parliament in
1955. It forms part of a larger legislative efiort to-
codify the personal law of the Hindus. It was followed
by the Hindu Succession Act, 1956; the Hindu Mino-
rity and Guardianship Act, 1956; and the Hindu
Adoptions and Maintenance Act, 1956. Originally,
Parliament intended to pass one Act "comprehensively
described as 'Hindu Code', but, later, the original
Code was split up into four different Acts, which
were passed one after the other; these four Acts, in
substance, constitute the Hindu (Totle.

In adopting these four legislative measures, Parlia-
ment has acted upon the principle formulated' by
Dr. Radhakrishnan that "to survive, we need a revolu-
tion- in our thoughts and "outlook. From the alter of
the past we should take the living fire and not the
dead ashes. Let us remember the past, be alive to
the present, and create the future with courage in our
hearts and faith in ourselves?" H

1.4. When it was announced that Parliament in-
tended to pass the Hindu Code making redical
changes, where necessary, in the personal law of the
Hindus, traditional and conservative Hindu opinion
resisted the idea, because it thought that, by the pro-
posal to enact a Hindu Code, Parliament was invading

1. Gunnar Myrdal, Asian (Drama, Vol. page 76. Romesh
Tapar, "wiffie woflie in High Places", The Economic weekly,
November 4, 196], p. 1683).

U



3.

the area of Hindu religion and was changing Hindu
law which was "Sanatana", that is to say, which had
not undergone any change and had remained as it
was handed down by the Srutis and the Smritis.

The opposition thus expressed by traditional con-
servative Hindu opinion was met by the progressives'
plea that personal law is essentially secular in char-
acter. and cannot be treated as a part of Hindu reli-
gion properly so called. Reformers also urged that
Hindu law was never "Sanatana" or static and had
undergone changes from time "to time. Before the
Bill was introduced_ in Parliament and during all
stages of its progress in the form of four diilerent
Acts, there ensued a national debate; and that was as
it should be under any democratic legislative process.

Parliament ultimately upheld the point of view
strongly expressed by social reforms and proceeded
to pass the four Bills in question on two fundamental.
assumptions; the first assumption was that personal law
in the case of citizens of thiscountry cannot be treated
as part of their religion properlyso called; and second--

ly, that the history of the development of Hindu law .

shows that it was never static and had changed ifrom
time to time so as to meet the challenge of changing
requirements of difierent regions and different times.

1.5. It would not be out of place to point out, with
respect, that both these assumptions are well founded.
If we examine the sources of Hindu Law, it would
be noticed that custom is one of its important sources.
According to Yajnavalkya', Srutis and Smritis or the
conduct of good people or good conduct. constitute,
inter alia, the sources on which the Hindu Law is
founded.

1.6. It is obvious that, in different regions, different
customs prevailed, and in the same region, from time
to time. customs in regard to matters covered by the

1. €F<'TF'1ffi:E'€l"'=lTT I
We er f§r:m'rm=r n
=trI=:'$ Fifi-War: fit'-r I
etitgerfaar Ffififi n

Yaj. I, VII-

Also see Mann II. XII.



4

provisions of law were likely to change. Thus, by
assigning to changing customs the status of a source
of law, the text has provided an inbuilt source of
changes in law as and when they would become neces-

SEW.

One distinguishing feature of the development of
Hindu law throughout the ages has been the remark-
able part played by eminent commentators of the texts
of Smritis. Amongst these commentators, Vijnanes-
wara occupies a pride of place. Scholars of Hindu
law have justly paid a rich tribute to the Work of these
Hindu jurists in sustaining the living character of
Hindu law by making necessary adjustments in its
provisions from time to time on the basis of rational
rules of interpretation.

1.7. In this connection, the first consideration which
is relevant is that the Hindu law, as it was applied
until the present Acts were passed, was divided into
two Schools; one the Mitakshara and the other the
Day-abhaga. The Mitakshara school, in turn, was di-
vided into four sub--schoc-ls, the Benares, the Mithila,

- the Maharashtra and the Dravida. Broadly stated, the'

Mitakshara school adopted the interpretation placed
by Vijnaneswara on the relevant provisions of the text
of Yajnavalkya; while the Dayabhaga school, which
prevailed in Bengal, adopted the view expressed by
Jimutavahana. There is general consensus that both
these distinguished jurists thrived in the twelfth cen-
tury. In regard to the sub-schools of the Mitaksha-
ra school, however, each one of them followed the in-
terpretation placed on the same Smriti texts by di-
fferent commentators who lived in the areas governed
by the said sub--schools. It will thus be seen that,
though the texts on which Hindu Law was founded
in a primary sense were the same, -difierent interpre-
tations placed on the said texts. by different commen-
tators gave rise to different schools which are recog-
nised in the respective areas. That itself is 'an illus-
tration of the significant part played by the commen-
tators in the development of Hindu Law. The texts
were the same; but, by adopting rational and highly
developed rules of interpretation, the commentators



5

brought the letter of the texts in conformity with the
customs prevailing in their localities and the beliefs
and faith of the people in the locality. That explains
the existence of these difierent schools of Hindu Law.

1.8. We would like to illustrate our thesis by re-
ferring to two provisions of Hindu Law as interpreted
by the commentators. The first relates to the broad
and progressive concept of women's property evolved
by Vijnaneswara. It is well--known that, until the
Married Women's Right to Property Act was passed
in England' in 1882, the position of English married
women in relation to their rights to property was in
a very unsatisfactory condition.

Consider, by way of contrast, how Vijnaneswara
defines 'Stridhana'. Incidentally, it rnay be pointed out
that the property, which is technically described as
'Stridhana'. is property of which the woman is an
absolute owner, over which she has full disposing
power, and in relation to which there is a special line
of succession.

Says Vijnaneswara:

"That which was given by the father. by the mother,
by the husband, or by a brother: and that which was
presented by the maternal uncles and the rest at the
time of wedding before the nuptial fire; and a gift on
a second marriage or gratuity on account of supper-
session and, as indicated by the word 'adva' (and the
rest), property obtained by:----

(1) inheritance;

( 2) purchase:

(3) partition:

(4) seizure. e.g., adverse possession;
(S) finding;

and this is Stridhana, according to Menu and the
rest."

1. The Married Woi11en's Property Act, 1.-882  & 46 Vic.
75).



6

It is significant that, whereas the first part of the
definition given by Vijnaneswara reproduces the de-
finition of 'striclhana' which is given by Yajnavalkya,
the second part is the expansion made hy Vijnanes-~
warn basing himself on the word 'tidy-a' which occurs
in Yajna\~'alkya's definition of stridhana. By this
jurisrie effort to widen the scope of "stritlhanu", Vij-
nancswara included in the concept of stridlianu not
only the properties which were so treated by Yajntt--
vttlkya, but also five additional distinct kinds of pro-
perty which were not rc,qardcd as "sh-itlhana' by the
early sages.

1.9. In this connection, it is interesting to refer to
the observations made by the High Court of Madras
in Scilemma V. Lufclimanarl

"It is scarcely necessary to say that Vijnanes~
wara'S statement that 'stritlhana' is not to
be understood in at technical sense (l'ulli£1l\'~
Sl'JEl.I't1, Chapter 2, section 1}, Para 3} was
not mere philological observatioii. By ]ay~
ing down that proposition. Vijnaneswara
and other great commentators, who follow-
ed him, succeeded in clteeting a beneficial
change in the archaic Snuiti law and placed
women almost on a footing of equality with
men as retzards the capacity to hold pro«
petty."

Unfortunately, the explanation made by Vijnanes--
wara in regard to the scope of the word "stridhana"
went by the board as a result of the Llccislon of the
Privy Council in Debt" Mtmga! PJ'€l.S'ttt'.l V. Mahmfco
Prasad'~'

1.10. The second example relates to El. part of the
law of adoption. The power of the woman to give
or take a boy in adoption is bztsetl on the 'text of
Vasistha.3 Says Vasistha:

"Let not a woman give or take a boy in adop-
tion without the consent of her husoantl."

1. .S'al'emn-m V. I.tIrr.'f1.umnrr, (1 393] l.L.R. 2| Mail 100, I03, 104.

2. Dew" M'(rngrrI Pr'¢Isr.r¢I V. .McrImc.t't-o f'i'r.I.\'c.'r!_. 39 l.A. Ii
(P.C.)

3. =rra"r 'T___E1' inner n'fnv[=5nfrLrta;a'£r=qaIr:g:T1a'F[ ' I Vasista



:7

This text appears to be simple in its terms and
clear in its meaning; and yet, different commentators,
who lived in difierent regions, interpreted it in di£'fe--
rent ways. One view was that a widow cannot take
or give a boy in adoption, because the consent of the
husband in her case is impossible. Another view was
that this prohibition is inapplicable to a widow, unless
it is shown that her husband had expressly prohibited
her from takingor giving a boy in adoption before
his death. The third view was that a widow can give
or take a boy in adoption if she secures the consent
of the manager of the family. There were other
finer shades of interpretation which it is 'unnecessary
to set out.

1.11. These two illustrations emphasise the point
that Hindu Law developed and changed to meet the
requirements of changing times or of usages prevail-
ing in different regions of the country by virtue of
the very wise "contribution of Hindu jurists in that
process. Therefore, the conclusion is irresistible that
Parliament was. right in assuming that Hindu Law
was never static; it was dynamic and was changing
from_ timerto time.

The object of law, whether personal or public,
must be to sustain the stability of the society and
help its progress:--~_ ' -
artnrntri fircai§' I sift awtti' srsn:

The structure of any society, which wants to be
strong, homogeneous and progressive, must, no
doubt, be steady but not static; stable but not sta-
tionary; and that is exactly the picture we get if we

- study the development of Hindu law carefully before

the British rule began in India.

l.l2. When the British came on the scene, two
constraints were imposed on this healthy course of
development of Hindu law. The first was imposed



8

by the decision of the Privy Council in the case of
collector of Madura v. Moatto Ramalingal. In that
case, the Privy Council laid down a clear and un-
ambiguous direction to the Judge administering Hindu
Law in India. The Privy Council held:

"The duty therefore of an European Judge who
is under the obligation to administer Hindu
law, is not so much to inquire, whether a
disputed doctrine is fairly deducible from
the earliest authorities, as to ascertain whe-
ther it has been received by the particular
School which governs the district with
which he has to deal and there has been
sanctioned by usage. For, under the
Hindu system of law, clear proof of usage
outweigh the written test of the law."

1.13. It is necessary to remember that judicial de-
cisions made it very difiicult, if not impossible, to
prove the existence of any new custom because courts
do not recognise the validity of any custom unless it
was proved to be "ancient, certain and reasonable."
A spirit of inquiry and an attempt to interpret the
texts to adjust law to changing requirements were
thus completely stalled; and that justified the obser-
vation made by 'Mayne in the first edition of his
book on Hindu Law and Usage''' published in the
seventies of the last century that under'the British
rule, Hindu Law "was in a state of arrested progress
in which no voices were heard unless they came from
the tornb."

1.14. The other constraint, which stalled the pro-
gress of Hindu law during the British regime, flowed
from purely political considerations. As a foreign
power ruling over a very large country, it was the de
clared policy of the British not to interfere with the
customs, faiths and beliefs of the population over

1. Caflector of Madura v. Mootro Ramalinga, (I868)

12 M.T.A. 397, 436 (P.C.)
2. Hurpurshad 'V. Shea Dytzi, (1876) 3 LA. 259, 235.
3. Mayne, Hindu Law, Ist Edition.



9

which it ruled and, naturally, the British Government
frowned upon any efiort to make radical changes in
the provisions of the Hindu law, though Hindu refor-
mers were agitating for such changes from time to
time. No doubt, some laws were passed to meet the
demand of social reform; but the efforts for charges
in personal law were never positively encouraged and
the steps taken in that direction were slow, halting and
reluctant. That is how the growth of Hindu law was;
arrested during the whole of the British period in the
history of India.

When we became free and the Indian Parliament,
which was sovereign, began to function, the age of
commentators came to a close and that of legislators
commenced. Naturally, one of the first tasks to which
Parliament addressed itself was to change Hindu law
with a view to modernising its provisions and, wher-
ever necessary, to effecting changes on the basis of
social justice. The task of rationalising and modern-
ising Hindu law was a' challenging task and, as we
have already pointed out, it led to a national debate
and, in consequence of the heat generated by the
debate, the attempt to introduce one comprehensive
Code at one stretch had to be given up, and the task
was accomplishediby introducing four different Bills.

1.15. The significance of the Hindu Code at its re-
volutionary character lies in the fact that. by passing
the four Acts pertaining to the personal law governing
the Hindus, Parliament has emphasised that personal
law is a social and secular matter and not a part of
religion properly so-called. These four Acts thus
constitute the first decisive step in implementing the
important Directive Principle enshrined in Article 44

of the Constitution. That, in our view, is the real '

significance of the four Acts of which I-lintlu Marriage
Act was the first to be enacted.

Revision of Laws is a continuous process

1.16. It may sound platitudinous but is nevertheless
true that revision of laws is a 'must' in a dynamic
society like ours which is engaged on the adventure of
creating a new social order founded. on faith in the



is

valuc--systern of soe.'to--economie justice enshrined in
our Constitution. With the changing times, notions of
inirncss and justice assume newer and wider dimen-
sions, and customs and beliefs of the people change.
These, in turn, demand changes in the structure of law;
every progressive society must main: a rational effort
to meet these demands. Between the letter of the
low and the prevailing customs and the dictates of the
current value-system accepted by the community,
there should not be an unduly long gap. Ranasle
often said that the story of social reform, which involves
reform in personal law, is an unending. story; it con-
tinues from generation to generation. liech generation
contributes to the continuance of the elfort of social
reform: but the effort is never eonclutlcd and the end
is never reached in the sense that no further attempt to
reform is required. It is in that some that we believe
that the revision of personal _l:1ws, and indeed. of all
laws, has to be undertaken by modern societies. These
thoughts have been present in our mind when we em-
barked upon the present inqttiry.

()1 rr approach

l.l?. In holding the present inquiry, we have first
examined the proposals and, afiter an elaborate and
careful consideration, we came to -our contzlusions in
respect of them- Then" we examined all the provisions
of the two Acts ourselves and considered the ques»
tion whether any of them need to be revised When we
reached conclusions in this part of the inquiry, we
proceeded to formulate our recommendations serially
by reference to the different sections of the two Acts.
In other words, Part I of the Report' will deal with
the proposals and our recommendations in respect of
them. Part [I will deal? with our recommendations
in regard to the provisions not covered by the pro-
posals; nnd Part III will enumerate our recommenda-
tions serially by reference to the respective provisions
of thetwo Acts."

1. Chapter 2.
2. Chapters 3 to 8,(HindLt Marriage Act) ; Chapter 9 (Special

Marriage Act).
3_ Chaptfil' 10.



11

In the course of our inquiry, we have examined
important and relevant judicial decisions, taken" into
account the opinions expressed by Members of Parlia-
ment in their communications to the Minister of Law
and Justice from time to time, and have carefully
borne in mind the trend of public opinion in regard to
the expanding horizon of social justice. Every section
of both the Acts has been examined by us in the light
of the test of the value-system of social equality which
is enshrined in the Constitution and has gradually re-
ceived more and more acceptance from the Indian

Community.

We have also attempted, wherever we thought it
necessary and advisable to do so. to bring about uni-
formity in matters which are essentially common to,
the two Acts.

1.18. Before we conclude, we may refer to one
more point which is relevant to the Hindu Marriage
Act. We have already referred to the spirit underly-
ing the enactment of these four Acts amongst them be-
ing the Hindu Marriage Act. While enacting these
Acts, Parliament has taken care to preserve what it
thought to be consistent with the spirit of modernism
and social justice. It has also taken care to preserve
what it thought to be the essential features of any
fundamental proposition of Hindu law. In regard to
marriage, for instance, it has preserved the require-
ment that the marriage should not take place between
persons who are within the prohibited degree of
Sapindas relationship, vide section 5(iv) and (V).
Similarly, it has preserved the requirement as to Supra-
padi (that is, taking of seven steps by the bridegroom
and the bride jointly before the sacred fire) vide sec-
tion 7(2) and that again, only when performance of
the said rite is in accordance with the customary rites
and ceremonies of either party to the marriage. Thus,
broadly stated, though the Hindu Marriage Act has
introduced radical changes in regard to divorce and
judicial separation, it has maintained the basic feature
of the marriage which is partly consistent with the
provisions of Smriti texts. Under the Act, Hindu
Marriage is not a sacrament in the religious sense; but,

7 M of Lawl74---2



12

nevertheless, it is founded on the basic moral postu-
lates, as evidenced, for instance, by the continuance
of the pre-existing requirement as to Saptapadi.

1.19. Even in regard to divorce, there are some
Hindu texts which permit divorce as, for instance, the
text which says that, in five cases of misfortune, women
are entitled to marry another husband. These cases
are : where the husband is lost and is not heard of for
the prescribed period, where he is dead, or has taken
Sanyas, or where he is impotent, or has committed a
sin as a result of which he is excommunicated}

1.20. Bearing in mind this distinctive character oi
the institution of marriage as envisaged by the Hindu
Marriage Act, we have carefully considered the ques-
tion of making changes in the provisions pertaining to
judicial separation or divorce. T

In any civilised and progressive society, marriage
is an institution of great importance. It is the centre
of a family which in turn, is a significant unit of the
social structure. Children who are born of marriage,
also contribute to the stability of the institution of
marriage. These factors are material and have to be
taken into account; but in some cases, their validity
cannot be over--estimated because, if the marriage
which primarily concerns husband and wife is it-re-
trievably, broken, then collateral considerations about
the significance of the marriage institution or about
the importance of children and their interest may have
to play a subordinate role. It is in the light of this
philosophy, that we have attempted the somewhat
sensitive and difficult task of recommending certain
radical changes in the provisions of the Hindu
Marriage Act.

Disputes concerning the family

1.21. Before we proceed to deal with the questions
relating to revision or amendment of the provisions of
the two Acts, we ought to mention here one important

1.Frsa'=ge'rSfi'i'u1't'far?~ila"a'a1'es'r-7a't,
-:==u--'ca-1=ra=q=I11'11r_ri=rl'n'G=fi1*=ra'r=t€I

Narad XII--37



13

consideration which is an integral part of our app-
roacli. In our Report on the Code of Civil Proce-
dure,' we have had occasion to emphasise that in
dealing with disputes concerning the family, the court
ought to adopt a human approaeh--~an approach ra-
dically different from that adopted in ordinary civil
proceedings, and that the courteshould make reason-
able efforts at settlement before commencement of the
trial. In our view, it is essential that such an approach
should be adopted in dealing with matrimonial dis-
putes. We would suggest that in due course, States
should think of establishing family courts, with presid-
ing ofiicers who will be well qualified in law, no doubt,
but who will be trained to deal with such dispute in a
human Way, and to such courts all disputes concerning
the family should be referred. What we have said in
our Report on the Code of Civil Procedure should he
treated as a part ot the present Report also.
We are clear in our mind that if these measures are
adopted, they will go a. long way towards the proper
resolution of such disputes. We may add that selected
judicial officers could be posted in coum empowered
under both the Acts, and by dealing with disputes con,-
cerning the family, they will be able to acquire expe-
rience and knowledge which should not only be of
value' to them but will ultimately benefit the society.

 54th Report, -Chapter 



Introduc-
tory

Section 10

CHAPTER 2
PROPOSALS OF THE MINISTRY OF LAW

21. In this Chapter, we shall deal with the pro-
posals of the Ministry of Law.

2.2. Under section 10(1) of the Hindu Marriage-

Act, a party to a marriage may present a petition
to the District Court praying for judicial separation
on the ground that the party has been guilty of the
specified types of misconduct or has been suffering
from the specified types of disease. Under clause
(b), the fact that the opposite party has "treated the
petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it will
be harmful or injurious for the petitioner to live with
the other party" is one such ground. The proposal
now is that in place of this clause, the following'
should be substituted:

"(b) has after the solemnisation of the marriage
treated the petitioner with cruelty."

The diflerence between the present section and'
the proposal is obvious. In the present definition,.
the element of apprehension as to harm or injury is
comparable to the element of "injury or likelihood
of injury to health" which, in England, was requiredl,
since 1897. It has been abolished in England,' and
the corresponding ground in England now is, that
"the respondent has behaved in such a way that the

petitioner cannot reasonably be expected to live with the respondent". If this is proved, the marriage can be taken to have "broken down irretrievably", with- in the meaning of the principal provision-" as to the ground for divorce. The behaviour of tho respon~ dent of the nature referred to above, seems to cover cases which, under the old law, would have amounted

1. Russell v. Russell, (1897) AI). 395, CHL.

2. Section 2(l)(b}, Divorce Reform Act, 1969 (Ch. 55).

3. Section i(l), Matrimonial Causes Act, 1973.

14 15

to constructive desertion, and also rape, sodomy and bestiality and, apparently. conviction of serious cri- minal oflences. Of course, proof of behaviour of the above nature (or for that matter, of any other type of miscondirct specified in this context in the Act), merely creates a rehuttable presumption, it being still open to the respondent to prove that the marriage has not irretrievably broken down'.

The statutory qualifications attached to "crnelty" in section 10(1}_(b) of the Hindu Marriage Act are derived from the concept of "danger to life, limb or health", required at one time by the Ecclesiastical courts in England, for passing decrees of divorce, and need not by emphasised at the present day.

In view of what is stated above, we accept the proposal.

2.3. Section 11 of the Hindu Marriage Act, in so Section 11 far as is material, provides that a marriage shall be null and void and may "on a petition presented by either party thereto," be so declared by a decree of nullity, if it contravenes one of the specified con-

-ditions,----(briefiy, the conditions relate to monogamy, prohibited decrees of relationship, and absence of sapinda relationship). The proposal now is that the words "on a petition presented by either party there- to", should be omitted. The obvious object is to make the relief in question available at the instance of other parties who may have a legitimate interest in seeking such relief. The proposal -was mooted because the present restriction causes hardship when a first wife, for example, seeks to get a second mar- riage set aside or when relief of nullity is sought after the death of a party.

The proposal may, at first sight, appear to be attractive. If a marriage is void, why, it is argued.

-should the relief under the Act he confined to the "parties? It is stated that the words "on a petition presented by either party thereto" (or similar words) do not appear in the corresponding provision of the Special Marriage Act, 1954.

1. Lord 15ii_sorneTH.I., Debates:Vol. 304, Co]. 1094.

Proposal not accept-

ed.

16

2.4. At the same time, there is a strong argument against it-. The Hindu Marriage Act is a piece 01' matrimonial law and decrees of nullity, contemplated by it, are decrees passed by a Matrimonial Court. It is fundamental that a Matrimonial Court has con« cern only with the marital rights of the parties to marriage (and incidentally with the rights of the children), but with nothing else. A petition for a decree of nizllity in respect of a void or a voidable marriage can be made only by either the husband or the wife. It would not be appropriate to provide that a petition for the purpose can be made by a stranger to the marriage. A third party (for exams pie, :1 person interested in the estate of either the husband orpthe wife) can certainly question the vali- dity oi their marriage in (I civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage Was voidi. But such a. decree, made by a civil court, will not be a decree of "nulli- ty", as contemplated by matrimonial law.

2.5 . 'There is also a serious practical risk in , allowing the grant of decrees of nullity after the death of either of the parties to the marriagci', because the effect of "it is to bastard and disinherit the issues who cannot so well defend the marriage as the parties both living themselves might have" done?

Then, there is the question of multiplicity. We may refer' to the observations of Panchauakesa; Ayyar I. t----- ' "The legislature has restricted the summary re--' medy of an application under section 11 to be actual parties to the void marriage, so that third parties may not interfere

1. See para 2.6, inflra.

2. See also para 6.2. infra.

3. Code, 2nd Institute 614 2 R v. Sherwood' (1836) l Curt 173, 137, 138 (Dr. Lushinglon) : Graveson : Century of Family Law (1957), page 312, footnote.

4. Lakshmi Ammo! V. Rmr?a.s'wrl'mt', ALR. 1960 Madras 6, 7, para 5.

17

narassingly by taking advantage of this cheap remedy of an application."

A void marriage can, no doubt, be invalidated at the instance of other parties', but it is better not to- incorporate the remedies of third parties into the Hindu Marriage Act and confuse matrimonial relief with declaratory relief.

We are, therefore, opposed to the proposed amendment of section 11.

2.6. This does not mean that third parties have no R£ ¥ to remedy at all. They l1ave--but not by a petitionf;fi_d"p:r_ under the Hindu Marriage Act. ties The Specific Relief Act", in section 34, provides as follows:

"Any person entitled to any legal character, or to any right as to any property, may insti- tute a suit against any person denying or interested to deny, his title to such char- acter or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:

"Provided that no Court shall make any such declaration where the plaintifi, being able to seek further relief than a mere decla- ration of title, omits to do so."

Exp!anan'on.----A trustee of property is a 'person interested to deny' a title adverse to the title of some one who is not in existence, and for whom, it in existence, he wouldrbe a trustee."

Under section 35 of the Act, the declaration is binding only on the parties etc'.

1. Farermmh v. Watson (1811) 1 Phil. 355 /(Void Marriage).

2. Section 34, Specific Relief Act, 1963. 3, Section 35, Specific Relief Act, 1963 13 Banerji in his Tagore Law Lectures onflthe Law of Specific Relief, observed' :--

"The Indian enactment, in one respect at any rate, has a more extended scope. for it eon- templates the settlement, not only of con- flicting claims to property but also of dis- putes as to status."

Holland,"-3 in his 'Elements of Jurisprudence', ex- plaining the meaning of "status" says:--

"The chief varieties of status among natural persons may be referred to the following causes:

(1) Sex, (2) minority, (3) 'patria potestas' and 'manus', (4) coverture, (5) Celibacy, (6) mental defect, (7) bodily defect, (8) rank, caste and ofiiciai position, (9) race and colour, (10) slavery, (11) profession, (12) Civil death, (13) illegitjmacy, (14) heresy, (15) foreign nationality and (16) hostile nationality. All of the facts included in this list, which may be extended, have been held, at one time or another, to difierentiate the legal position of persons afiected by them from that of persons of the normal type."

There can, therefore, be no objection if a third party claiming an interest in the property, sues for a declaration that B was not the lawfully wedded of A. In an English case', it was specifically held that a declaration may be granted that a marriage has been dissolved. The grant of similar relief was held to be competent in a Calcutta case".

1. Ban-erji, Law of Specific Relief in British India (T.L.L. 1906), page 490, cited in Abdul Karim v. Sarraya Begum, A.I.R. 1945 Lab. 266, 270.

2. Holland, Elements of Jurisprudence page 35l,eited in Abdul Karim v. Sarrava Begum, A.i.R. 1945 Lab. 266, 270.

3. See also Ranxakrislmna v. Narayan. A.I.R. 1915 Mad.

4. 4.8§I'ar Shafei v. Har Shafei, (1953), All England Reports 7 .

5. Near Jehan v. Eugene Tischenko, A.l.R. 1942 Cal. 345.

19

2.7. We are, for the above reasons, not inclined C'1311E°'1°l ' l'BCOlIImCl1' to accept the proposal under discussion. dad 2.7A. The next proposal is to substitute, in sec- Section ig. tion 12(2)(b)(irt) of the Hindu Marriage Act, the '2)"''"'')' words "said ground?' for the words "the grounds of decree." This berbal change is obviously appropri- ate, and we agree with the proposal.

2.8. Under section 13(1)(v) of the Hindu Section 136) Marriage Act, (so far as is material), any marriage may be dissolved by a decree of divorce on the ground that the other party--"(v) has for a period of not less than three years immediately preceding the pre- sentation of the petition, been suffering from vene« real disease in a communicable form." There is no restriction that the disease should not have been con- tracted from the petitioner,--- restriction explicitly provided for in the corresponding provision relating to judicial separation'.

disease The proposal is to add the words "disease not having been contracted from the petitioner" in s. 13(1)(v). It is pointed out that these words occur in s. 10(1)(d) of the Hindu Marriage Act i dealing with venereal disease as a ground for a judi-

cial separation.

_i 2.9. While we agree that there should be no dis- parity between venereal disease as a ground for judi- cial separation and the same as a ground for divorce so far as the source of the disease is concerned, it appears to us that it would simplify the statement of the law if -the condition that the venereal disease should not have been communicated by the peti- tioner, is removed from section 10(1)(d).

We take this view for several reasons. In the first place, it wrong to throw the burden on the petitioner to prove the negative, and, prima facie, the fact that the respondent has been suffering from venereal disease for the specified period, should be enough 1;o entitle him or her to divorce. Secondly, it is not,

1. Section 1o(1)(d), HMA.

.ra.fi-' .

(v) Venereal floccul-

mendation .

Section 13 (1 )

(viii).-

the propo-

sal to add cruelty as a ground of divorce.

20

medically speaking, always easy to prove that where two spouses are found to be suffering from this disease, one got infected prior to the other. The party suing should not be burdened with the onerous task of prov- ing this, in the first instance.

No doubt, the "provisions of section 23(1)(-a} of the Hindu Marriage Act will still continue to apply even after the above amendment, so that if the disease was contracted from the petitioner, the respondent can still take the plea that the petitioner is taking advantage of his or her "own wrong". That, how- ever is a fair and just principle applicable to all cases of divorce.

2.10. Our recommendation, therefore, on the topic discussed above is, that (i) the proposal to add the words in question in 5. 13(1) (v), Hindu Marriage Act should not be accepted, and (ii) these words should be removed from section l0(1)(d} of the Hindu Marriage Act, if that section is retained in its present form. We are, however, separately recom- mendingi that section 10 should be revised so as to refer to section 13.

2.11. We now proceed to consider the proposal to add, in the grounds of divorce under section 13(1), cruelty on the part of the opposite party. The {act

-. that the respondent has "treated the petitioner with cruelty since the solcmnisation of the marriage", it is proposed, should he a ground for dissolution of mar- riage. It may he stated that at present cruelty is only a ground for judical separation", and that too where it causes a reasonable apprehension of harm or injury.

We welcome the proposal. if destruction of mutual confidence is the basic justification for dissolution of maIriagc--which vve think is the basic position,----it cannot be denied that cruel treatment would constitute a strong ground for dissolution. There can be no more unimpeachahle evidence of the destruction of

1. See Chapter 5. irzfi-o.

2. Section lD(l)(b), HMA para 2. 2, supra.

yr 21 mutual love and feelings than cruel treatment of one party by the other. Cruelty is the very antithesis of love and alfection. The duration and frequency of the conduct to be proved (to establish cruelty) need not be explicitly spelt out' in the section, because the very words "treated with cruelty", in general, imply harsh conduct of a certain intensity and persistence. It was suggested to us that some further indication is advisable not as merely qualifying the type of cruelty, but as indicating that the ultimate ground of divorce is the impossibility of operating the marriage. The misconduct described as cruelty should, it was sug- gested, be one which amounts to cutting the sacred link that the parties had, when entering upon the marriage, sought to create between themselves.

2.12.' A draft on the following lines was suggested. during our discussion:

"that the respondent has, since the solemnisation: of the marriage, treated the petitioner with such cruelty that the petitioner cannot reasonably be expected to live with the respondent."

We do not, however, think it necessary to add such limiting words, because we consider that the court would, even in the absence of ' such words, broadly adopt the same approach.

2.13. It may incidentally be mentioned here that in many countries, matrimonial relief is provided to the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of the princi- ple of protection.

2.14 to 2.16. Having considered all aspects of the matter, we have come to the conclusion that it is sufficient to provide for cruelty as a ground of divorce, and it should be left to the courts to determine on the facts of each case whether the conduct amounts to cruelty.

1. For Engl sh cases upto 1948, see Rosen, "Cruelty in_Matri- . monial Causes" (1949 12 Modern Law Rev. 324.

Recom-

mende-

tron.

Section 13

-(IA).

Section 13 (2) Liv.

ing apart order of mainten-

2111.53.

22

2-17. Accordingly, we recommend that In section 13(1), Hindu Marriage Act, a new clause should be added as follows:---

"has treated the petitioner with cruelty".

2.13. Under section 13(lA) of the Hindu Marriage Act (inserted in 19643, either party to a marriage may present a petition for dissolution of marriage on the grounds:--

(i) that there has been no resumption of cohabi- tation as between the parties for two years after a decree of judicial separation, or

(ii) that there has been no restitution of conjugal rights as between the parties for two years after a decree for such restitution. The pro- posal is that the period of two years should be replaced by one year in each of the two cases.

We agree that the proposal is reasonable and should be accepted. As the proceedings for judicial sepa- ration or restitution may themselves take time, it is not proper to insist on a long waiting period. The facts required to be proved in each of the two cases governed by section 13(1A) imply that the parties have ceased to value each other's society, and their need for each other's company is prima facie at an end.

2.19. There is a proposal to add the following clause in section 13(2) of the Hindu Marriage Act, which deals with divorce at the instance of the wife:----

"(1) that an order has been passed against the husband by a Magistrate awarding separate maintenance to the petitioner, and the parties have not had marital intercourse for three years or more since such order."

2.20. It may be said that, in one sense, this pro- posal treats the order passed for awarding separate maintenance to the wife under the Cr. P.C.1 on the

1. Section 488 of the Cr. P.C., lfifiiiiihection 125 of the Cr. P.C . 1974.

23

same basis as an order or a decree for judicial sepa- ration under section 10 of the Act; and, as such, it gives the wife a right to claim dissolution of the marriage by a decree of divorce on the ground that subsequent to the passing of the order under the Code of Criminal Procedure, the wife and the husband have not had marital intercourse for the stipulated period.

It will be noticed that a claim for the dissolution of the marriage by a, decree of divorce passed on this new proposed ground is similar to the claim which can be made either by the husband or the wife under clauses (i) and (ii) of the section 13(1A).1 2.21. It must, however, be pointed out that one Points _to- significant point of diflerence between the position b'fel.'::l"" as contemplated by the proposal and the potsition under clauses (i) and (ii) of section 13(lA) is, that, whereas under the latter provisions, it is open either to the wife or to the husband to claim a decree for divorce, under the former, (i.e. under the proposal).

_it is only the wife who is to be entitled to make such a claim-

On this proposal, two questions fall to be consider- ed". Would it be reasonable, fair and appropriate to insert the proposed clause, as suggested? And, if yes,' would it be reasonable, fair and appropriate that, if the Commission recommends that the proposal should be accepted, the right should be given to claim a decree for divorce, not only to the wife, but also the husband?

2.22. In dealing with the first point3, it may be -pNa,,m of relevant to refer briefly to the nature of the prooeed«1grUcee<§lings ings for maintenance under the Code of Criminal Procedure. It is well--known that, in substance, these proceedings empower the competent Magistrate to pass an order for the maintenance of wife and child- ren. With the problem of children, we are not com cerned in the present discussion. The condition pre« . Para 2.18, supra.

. See para 1.1, supra.

. Para 2.21, supra.

\K.o-'l]\Ji--I Sim ation one of cruelty 24 cedent, which has -to he satisfied by the petitioning Will? Elder this section, is that though her husband has Sufiiclem 17_E1€3D3. he neglects or refuses to maintain 1161', and. In the proceedings ensuing on such petition, one of the factors, which has to be considered by the Magistrate is whether the Wife is justified in re. fusing to live with the husband even if he offers to maintain her on condition of her living with him. If this question is answered in favour of the wife, then, subject to the other terms and conditions prescribed by the section, an order for maintenance in favour of the wife can be and is passed.

It is plain that the main object of the proceedings permitted under the section is to prevent vagrancy by ordering the husband to support his wife. The pro»« visions of this section are not in the nature of penal provisions; they are intended to serve the social pur- pose of compelling the husband to discharge his duty to maintain his wife on the gonnd that a default or failure on his part to discharge his duty may lead to the vagrancy of his wife. It is necessary to empha- sise that neglect to maintain onc's wife is not an ofiencc, and an application made by the wife against her husband for suitable action under this section is not a "c-ompiaint" within the meaning of the Code of Criminal Procedure. The proceeding is not a cri- minal proceeding, and does not end either in order of conviction or acquittal. Therefore, in such a pro- ceeding, the husband can be, and almost always is, examined on oath as a Witness in a civil case. A a result,'the provision relating to examination of the "accusod"1 does not apply to such proceedings. In other words, these proceedings though instituted under a section of the Code of Criminal Procedure, cannot be described as "criminal proceedings" as such.

2.23. Reverting to the basis on which an applies» tion undcr the Code can be founded, we may state that it is the neglect or refusal of the husband to maintain his wife, as a. result of Which, she is com- pelled to leave her husband and stay separately. It

1. seaiafi 34:, Cr. 1>_c., mas and Corresponding provisions in the l9?4 Code.

25

is possible to take the view that where a wife is thus compelled to leave the shelter of her husband and seek the remedy provided by the Code, the husband, in effect, is guilty of cruelty towards his Wife. We have decided to recommend1 that cruetly simpli- citer should be a ground for judicial separation under section 10(.l)(b) and we are also recommending that it should be a ground for a decree of divorce under section 13. In the light of this recommenda- tion, it may not be unreasonable to treat cruelty, in- volved in the conduct of the husband which drives the wife to seek for relief under the Code, as falling within the concept 'of cruelty contemplated by sec- tion 10 and 13.

Therefore, on principle, the fact that the wife has chosen to take recourse to the Code of Criminal Pro'- ccdure and not to sections 10 or 13 of the Hindu Mar- riage Act, does not make a substantial difierence to her case that her husband has treated her with cruelty. If that be so, We see no reason why she should not be given the right to claim a decree for divorce, and that, in fact, is the proposal which gives an additional right to the women Who has been aban- doned by her husband; and, on grounds of social jus- tice, the proposal is, in our view, well-conceived and should become a part of the Act.

2.24. Having reached this conclusion, we have gm"

to consider the second question already formulat-- husband ed". Should a husband be given liberty to apply Efigfldm? for a decree of divorce in cases falling under the right. Code? Prima facie, it may appear that, accepting the analogy3 of clauses (i) and (ii) of section 13(1A), there should be no objection to conferring a right on the husband similar to the one which it is proposed to confer on the wife by the proposal. If the order for maintenance under the Code is virtually and, in substance, the result of the cruelty practised by the

1. See sections 10(Il(b) and 13(1) I-[MA as proposed to be amend d.

2. Para 2.2.1, supra.

3. Para 2.20, supra.

26

husband against his wife, why not allow the husband to claim a decree of divorce subject to the conditions prescribed by the proposal?

2.25. We have carefully considered this aspect of the rnatter; but,_ after elaborate discussion of the pros and cons, we have come to the oonclusionthat, hav- ing regard to the social conditions prevailing in our country, if liberty is given to the husband to apply for a decree of divorce in cases under which an order has been passed under the Code, in a large majority of cases, it may work great hardship to the wife. Moreover, we do not thin]: that the guilty party~ namely, the husband who is proved to have neglect- ed or refused to maintain his wife, should be allow- ed to take advantage of his own wrong and get rid of the obligation imposed by the order for ntainten- .

311136-

We are conscious that it', on the same cause oi' action, the jvife applies for a decree of judicial separation under section 10(1), the husband would be entitled to claim for a decree of divorce, subject to the conditions prescribed by section 13(1A). But the wife may not adopt such a course, she may not proceed under section 10(1) for judicial separation or under section 13, for divorce. She may remain satisfied with an order for maintenance under the Code. In such case the husband cannot--aud should nct-----(because on the hypothesis, he is guilty of cruel- ty). claim. a decree of divorce under section 13(1A}.

2.26. There are two more considerations which are relevant, and to which a reference must be made. One consideration is in favour of extending to the husband the option to claim a decree for divorce in cases falling under the It may be said that a wife, grievously embittered by her husband's neglect or refusal to maintain her. may, cut of spite or malice, refuse to avail herself of the option to ask for a decree for divorce and thereby prevent her hus- band from marrying another woman. But the short answer is that the wife would thereby be denying herself an opportunity to marry again and that, from a psychological point of view, is very unlikely.

27

On the other hand, if the right to claim divorce in such cases is conferred on the husband, it may be abused by the husband. It is not unlikely that a husband who is keen to get rid of his wife, will de- liberately abandon her, and if a proceeding is brought against him under the Code, would readiiy submit to an order for payment of maintenance to her in the full knowledge that, after the lapse of the prescribed period, he will be able to get a decree of divorce and carry out his intention to marry another woman. In such a case, the wife will be exposed to grave jeopardy and in fact, may have to face the cruelty of vagrancy, which would be ironical because the prevention of vagrancy in the case of an abandoned wife is the very basic philosophy on which the section in the Code if founded.

' 2.27. Having considered all the relevant facts, we are not prepared to recommend the extension of the principle contained in the proposal to the husband.

2.28. This disposes of the main question. Now, some matters of detail regarding the above proposal may be referred to. We think that the period of one year should be enough'. We are also of the View that the condition should be non--resumption of coha- bitation, rather than absence of marital intercourse or as is put in the Ministry's proposal."

Finally, we think that -the provision proposed should apply also to a decree for maintenance obtain- ed by a wife who is justifiably living apart3, under the Hindu Adoption and Maintenance Act, section 18(2).

229. Accordingly, We recommend that the follow-Reeom-_ . ing should be added in section 13(2) of the Hindu '""""1a"°n' Marriage Act:

"that in a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956 or

1. if section 13(lA), I-I.M.A. as proposed to be amended.

2. Para 2.19. supra.

3. See, section 18(2), Hindu Adoption and Maintenance Act. 1956.

I M of Lawf74--3 Section 14.

Recom-

mcndation as to sec-

tion 14.

28

infa proceeding under section 125 of the Code of Criminal Procedure, 1974, a decree or order, as the case may be. has been pass- ed against the husband awarding mainten- ance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation bet- ween the parties has not been resumed for one year or more."

2.30. Section 14 of the Hindu Marriage Act pro- hibits the Court from entertaining a petition for di sso1u- tion of marriage by a decree of divorce. unless, at the date of the presentation of the petition, "three years have elapsed since the date of the marriage." Under the proviso to the section, the court has, subject to rules made by the High Court, power to allow a peti- tion to be presented before the three years have elap- sed, on the ground that the case is one of "exceptional hardship to the petitioner or exceptional depravity on the part of the respondent". This proviso itself is subject to certain restrictions, and sub-section (2) of the section further requires the court, in disposing of any applications under the section (for leave to pre- sent a petition before the expiration of three years), to have regard to the interests of any children of the marriage and "to the question whether there is a rea- sonable probability of reconciliation between the par- _ties before the expiration of the said three years".

The proposal now made is that period of one year should be substituted in place of "three years".

2.31. We are of the View that the section should be deleted. The object of prescribing a minimum per- iod for entertaining a petition for divorce is to ensure that if there is a prospect of reconciliation, then elforts should be made in the direction.

While we appreciate the legislative policy of placing an emphasis or reconciliation rather than on a hasty ' divorce, we think that there should be no restriction as to time. The court will have, under section 23(2), opportunity to consider if the peace and 'harmony are beyond retrieval. If they are not beyond retrieval, 29-

reconciliation under section 23(2) will succeed, be- cause section 23(2) is intended to create condition for maintaining or restoring the mutual confidence between the parties.

We, therefore, recommend that section 14 should be deleted.

2.32. We now consider the proposal which relates Section 15.

[to section 15 of the Hindu Marriage Act. Under the main paragraph of the section, 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 the time for appealing has expired with- out an appeal having been presented, or an appeal has been presented. but has been dismissed, it shall be law- ful for either party to marry again. Under the proviso to the section, it shall not be lawful for the respective parties to marry again unless, at the date of such marriage, one year has elapsed from the date of the decree in the court of the first instance. The proposal now is that this proviso should be deleted. Appa- rently, the assumption is that the prohibition against the marriage during the period of appeal or during the period allowed for filling an appeal, which-

-ever is the longer, is enough, and the further restriction that one year must have elapsed from the date of the decree in the court of the first instance, is not required.

In England there is no such restriction of one year' but there are, in most matrimonial causes, two decrees. in England--nisi and absolute. The minimum period between the two decrees is three months". A degree absolute can be expedited in certain cases'''.

The primary object of the prohibition against re- marriage in section 15, proviso, i.s two fold, first, avoiding confusion of parentage, and second, check»

1. Section 8, Matrimonial Causes Act, 1965, re-enacting section 13 of the Act of 1950. , . Matrimonial Causes (Decree Absolute) General Order. 1957, First Schedule, Paragraph 1.

3. Practice Direction in (1964) 1 W.L.R. 1473.

Section 16..

Legitima-

cy of chil-

(Iran.

30

ing an attempt to obtain divorce from one woman with the specific object of marrying another woman.

We think that the consideration of the parties, free- dom to marry and the inconvenience caused by the present law, should outweigh the above advantages. The proviso should, therefore, be deleted from section 15 of the Hindu Marriage Act.

It may incidentally be noted that the breach of sec- tion 15 renders the second marriage void'.

2.33. Under section 16 of the Hindu Marriage Act, the children of a void marriage are deemed to be legitimate, but only if certain conditions are satisfied. The section also deals with voidablc marriages, but, we are not concerned with those marriages. As the section stands now, where a decree of nullity is gran- ted in respect of any marriage under section ll{i.e. in respect of a void marriage), any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of having been declared null and void, shall be deemed to be their legitimate child, notwithstanding the decree of nullity. Under the proviso to the section, this section does not confer, on any child of a marriage which is declared null and void any rights in or 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 legiti- mate child of his parents. (We are referring, only to that part of the section which relates to a void marri- age, as already stated).

Now, the first proposal is that the condition that a decree of nullity must have been granted in order that the section may apply, should be removed. The second, and the more controversial, proposal is that this section should apply only if, at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage, where the marriage H l . E'-'.':lla"|:':.;£1--I'(l'i! V. Kajcrl, A.l.R. 1971 Cal. 307 (Reviews cases.) 31 follows the act,) both or either of the parties reasonably believed that the marriage was valid.

2.34. We are in favour of the first propos:1l1.Lega_1p,~o- In our view. it should not be a condition precedent to Cecdlngs . . . . . . might not the applicability of the benefical pI'OVlS10l] in the to be "aces- section that there must have been actual legal pro-5?"? ceedings resulting in a decree. Certain serious ano-

malies have resulted from the present position.

It may be noted that section 16 is an adaptation of section 9 of the (English) Matrimo-nial Causes Act,

-- 1950. ln making the adaptation, however, it seems to have been overlooked that the English section was concerned solely with decrees of nullity passed with respect to voidable marriages, and had nothing to do with void marriages. As a matter of fact, at the

-date of the Matrimonial Causes Act, 1950, children of void marriages were. in England, not yet regarded as legitimate issue in any circumstances". So far as voidable marriages are concerned, the chiidren of such marriages should be treated as legitimate issues so long as the marriage is not avoided. "But there was a doubt in this regard at common law. Hence the need for making them legitimate (notwithstanding a decree of nullity) by an express provision in the English Statute.

2.35. In England, section 11, Matrimonial Causes Act, 1965, used to govern the legitimacy of children of voidable marriages after 1965. It was as follows: --

"ll. Where a decree of nullity is granted in res- pect of a voidable marriage any child 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 legi- timate chi1d3".

1. Para 2.33, .5'.r4pm.

2. See, now section 2, Legitimacy Act, 1959.

3. For preach; law see section 16, Matrimonial Causes Act, I973.

Condition of bona fide belief.

----Seeond' point Consi-

dered--Four views as to legitimacy. =_ J' 32 Legitimacy of childrenpf void marriage is governed by another provisionl. Legitimation of children, by the subsequent marriage of their parents, is governed by a separate law".

2.36. The second point3, however, is one of great difficulty. With reference to the status oi children born of a void marriage, theoretically, four principal views are possible :--

(1) One view is that such children must be re- garded as iliegitimate, because a void marri- age has, in law, no existence, and the chil- dren of such a marriage can only be regarded as films nullz'uS;

(ii) The second view is that they should be enti- tled to succeed to their parents, as if they were legitimate, provided that the parents had contracted the marriage ham: fide and without knowledge of any impediment;

(iii) According to the third view. they should, in all cases, be entitled to succeed to their parents as if they were legitimate.

(iv) There could be a fourth view, namely, that they must be entitled to succeed to other relations in all cases.

2.37. The first view' is the traditional common law view, but has now been modified in most countries. According to this view, the prohibition of certain marriages being based on grounds of public policy, it is unavoidable that in a confiict between the interests of the general public and the interest of the innocent offspring of prohibited marriages, the former must prevail.

While the first view is at the one extreme, the other extreme is represented by the fourth view, according

1. Legitimacy Act, 1959, section 2. . See the Legitimacy Act, 1926, section I as amended by the Legitimacy Act. 1959, section 1. . Para 2.33, supra.

. Para 2.36, szrprrr.

id 33 to which the rights of children of void marriages to succeed to the property are recognised as if they are legitimate.

As regards the second view, it is a compromise between the fi1'St and the third. When the parties to the marriage deliberately break the law, the second View gives effect to the public policy referred to above. But, if the parties are not aware of the true facts con- stituting the impedimeut to a valid marriage, the de- mands of public policy, according to the second view, are sufliciently met by declaring the marriage to be void, without visiting the consequences of the mistake of the parents on the children. In England, the [Legi- timacy Act, 1959, gave efiect to the second viewl. This was already the position under the law of Scot- land. Before the Reformation, the Canon law also held that child of a void marriage was legitimate where the defect rendering the marriage void was unknown to one of the parties2.

The Hindu Marriage Act, however, has already adopted the third view it would be a retrograde step if it now reverts to the second view. That apart, the third view is obviously more fair to the innocent olf- spring of the marriage, and more in harmony with modern social notions. We are, therefore, of the opinion that there is no justification for reverting to the second view.

2.33. We may repeat that we are aware that the Sectioll 2- A.ct,1959.

(English) Legitimacy Act, l959----section 2--~--contains Legitimacy some such limitation as is suggested in the proposal sent to us. But we do not consider it to be a rational one. The English section was referred to in a Madras judgmenta pertaining to section 16 of the Hindu .:--..a=' Marriage Act, but we do not think that the Madras High Court wished to suggest that every ingredient of 1 Section 2, Legitimacy Act, 1959. the Royal Commission on Marriage and Divorce (1955), Cmd. 9678. pages 305 and 306, paragraphs N84 to 1186.

3. Gown' Ammo! v. Tfztelasf Anmml, A.l.R. 1962 Mad. 510 (Ramakrishnan J.).

A point of drafting.

34

the section should. be incorporated into our law. And, on principle, we think that such an approach is not well founded.

The fact that the scope-of the section is being ex- panded in one respect----by removing the present re- quirement that there must have been a decree of nul1i_ty----also does not seem necessarily torequire that the section should be narrowed down by adding a re- quirement that' the parties must have believed that there was no impediment to marriage.

2.39. An argument may be advanced that what is stated above takes away the utility of the prohibitions against marriage The answer to this argument is, first, that these prohibitions ought not to operate upon the children, and, secondly, that the prohibitions still retain some significance» as the parties are not husband and wife in law', and cannot sue each other for any relief based on a valid marriage (e.g. maintenance or restriction etc.). We should say, with Shakespeare1-

"Why bastard, wherefore base? When my di- mensions are as well compact, My mind as generous, and my shape as true. As honest n1adam's issue? Why brand they us with base ? with bascness '?bastardy? base, base?"

2.40. It is of interest to note that in the U.S.A., the North Dakota Supreme Court, in declaring the state inheritance statute unconstitutional, stated that "a statute which punished innocent children for the trans~ gressions of their parents has no place in our system of government which has as one of its basic tenets equal protection for al12".

2.-40A. The fourth view3, of course raises larger issues and it is not necessary to discuss its merits or demerits at least in the present social context.

2.41. This finishes the two points of substance concerning section 16. One point of drafting should

7.lKir'.;--LEa_.l:W""" T

2. In Re Estate of Jensen, 0968), 162 N.\'v'. 2d 861 (North Dakota).

3. 'Para 2.36, supra.

35

also be mentioned. The words "if it had been dis- solved", which occur iu the present section _16, are not very appropriate, because a "void" marriage can- not be dissolved. The Wording to be used in this context should be such as to provide straightaway that the children shall be legitimate as if the marriage were valid-

[As to the View that only a valid marriage can be dissolved, see the undermentioned easeslfi].

2.42. We may also note that, in England, though Ef11!%'i1;S';'9A°' the status of "illegitirnacy" is maintained in the legal 0 ' system, the property rights of illegitimate children have been widely extended by recent Iegislationa.

2.43. In the light of the above, we recommend that rfigfififtfiun this part of section 16(1) should be revised as fol-- ' ' lows:--

Revised secrirm 16(1), in para'.

''l6( 1). Notwithstanding that a rn.-1rricz,r_,rc is null Legitimacy and void on any ground specified in section 11, any E; §';'i}jd;':"1j child is born before or after the commencement of the voidable age had been valid, shall be legitimate, whether such '1"'"ia3°3' child is born before or after the commencement 01' the Hindu Marriage (Amendment) Act, 1974, and whe-- rher or not a decree of nullity is granted in' respect of that marriage", under this Act and whether or nor the marriage is held to be void otherwise that-2 on a petition under this Act".

It is considered unnecessary to limit the operation of the new sub~scction to children conceived before the decree of nullity is passed (where the case is

1. Khmnbatra v. Khanibatta, (1933) 36 Bom. L.R. ll; AIR I934 Born. 93 (Submission of' parties).

. Khambatta v. Khanzbano, (1934) 36 Bum. LR. 1021 ; A.I.R. 1935 Bom. 5.

3. Family Law Reform Act, 1969 iEng.) Sections 1410 19.

4. The words "of such marriage" could be added after the words "any child", if necessary.

5. Children of voidable marriages to be dealt witli in separate sub-section.

la Section 23A (new), 36 one in which such a decree is passed). Of course, after a decree of nullity, cohabitation would, in most cases cease, if it has not already ceased, and concep- tion after the decree is, therefore, very unlikely.

The rest of section 16 could be recast as follows:-----

"(2) Where a decree of nullity is granted in res» pect 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 this section 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 bv reason of his not being the legitimate child of his parents".

2.44. There is a proposal to insert a new section Relief to the permitting the court to give relief to the respondent respondent on petition f or divorce.

"Relief to Respondent on petition for divorce.

who opposes a petition for divorce on the ground of the petitioner's adultery, cruelty or desertion. The proposal is that- the court may give him the same re- lief to which he would have been entitled if he had filed a petition. Of course, the relief must be based on that particular ground--this is implicit, though the proposal does not state so.

The precise proposal' sent to us for consideration is that after section 23 of the Hindu Marriage Act, the following section should be inserted:---

"23A. If in any proceeding for divorce under this Act, the respondent opposes the relief sought on the ground of the petitioner's 37 adultery, cruelty or desertion, the court may give to the respondent the same relief to which he or she would have been entitled if he or she had presented a petition seeking such relief".

We do not see any objection to the substance of the proposal in so far as it goes, but there are certain matters of detail or language which we would like to deal with. -

2.4415. We may, for example, point out that the words "the same relief" (used in the proposal1 of the Ministry) create an ambiguity. - In a petition for divorce, the respondent should have a right to coun- ter claini not only for divorce ("same relief") but also for judicial separation, or, for that matter, any other appropriate relief. The respondent need not be confined to claiming divorce only.

There is another point. The proposition that the defendant may counter-claim is not directly brought out. Contrast the provision in the Parsi Marriage &: Divorce Act, 1936 quoted be1ow":-- ' "37. In any suit under this Act, the defendant may make counter-claim for any relief he or she may be entitled to under this Act".

There is obvious advantage in bringing it out more directly-

2.45. We would, therefore, recommend that the Remm- section to be inserted in the Hindu Marriage Act mEnd3t'l°D- should be on the following lines:--

"23A. In any proceeding for divorce or judicial separation or restitution of conjugal rights under this Act, the respondent may not only oppose the relief sought on the ground of the petitioner's adultery, cruelty or deser- tion, but also make a counter-claim for any relief under this Act on that ground;

1. Para 2.44, st-rpra.

ction 37 Farsi Marriage & Divorce Act. 1936.

Special Marriage Act---

Amend-

merits desired in the Minis-

try's propo-

sals.

38

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".

2.46. We have already statedl, that certain pro- posals for amendments in the Special Marriage Act have also been mentioned in the reference to the Commission, and the Commission's views sought thereon. We do not consider it necessary to deal with them in detail, but think it sufficient to state our general View that we see no objection to the relevant provisions of the Special Marriage Act, being brought into line with our recommendations in this Report as to the corresponding provisions of the Hindu Mar- riage Act, where necessary-

We may mention that the amendments proposed by the Ministry of Law in the Special Marriage Act, 1954 are only five in number.

(a) The first relates to section 2(e) of the Act, and is intended to revise the definition of "District Court" on the lines of the corresponding definition already existing in the Hindu Marriage Act.

We accept the proposal.

(in) The second relates to section 26 of the Special Marriage Act. That section deals with the legitimacy of childern of void and voidable marriages, and is comparable to section 16 of the Hindu Marriage Act. In this connection,'our comments with reference to section 16 of the Hindu Marriage Act" may be seen. Section 26 of the Special Marriage Act should be revised on the same lines as section I6, Hindu Marriage Act.

(e) The third relates to section 27 of the Special Marriage Act, and is intended to add, to the grounds P"c1-r-ah 1:], supra!

2. Para 2.43, supra.

ll 39 of divorce available to the wife, the new ground re- lating to the passing of an order for separate main- tenance by 3. Magistrate. In this connection, our com- ments with reference to section 13(2) of the Hindu Marriage Act may be seenl. Section 27 should be revised on the same lines as section 13(2). Hindu Marriage Act.

(cl) The fourth relates to section 29 of' the Special Marriage Act, which deals With restrictions as regards divorce during the first three years after marriage. Our" recommendation to delete section 14 of the Hindu Marriage Act may be seen, in this connection". Section 29 should also be deleted.

(e) Thclfifth relates to section 30 of the Special Marriage Act, which deals with rc--rnarriage after divorce. In this connection, our comments as to sec~ tipn 15 of the Hindu Marriage Act may be seen'''.

Section 30 of the Special Marriage Act should be amended on the same lines. This finishes consi-

deration of all the proposals contained in the draft _ Bill forwarded by the Minister of Law.

1. Para 2.29, supra.

2. Para 2.31, supra.

3. Para 2. 32, supra.

Introduc-

tion.

CHAPTER 3 CONDITIONS OF MARRIAGE UNDER THE HINDU MARRIAGE ACT 3.1. In this Chapter, we shall deal with points re- lating to conditions of marriage under the Hindu Marriage Act, except points which we have already dealt with whilel discussing the proposals of the Ministry of Law.

3.1A; There are certain conditions of a marriage, mentioned in the Hindu Marriage Act". The effect of breach of these conditions is not precisely the same in every case. Breach of some of the conditions merely renders the'"fnarriage void". Breach of some of the conditions merely renders the marriage voidablefi. Breach of some of the conditi0ns----e.g. the condition as to minimum age---«-does not afiect the validity of the marriage, though it may attract criminal penal- ties5.

3.2. Apart from the conditions of marriage specifi~ cally mentioned in the Act, it is elementary that a marriage must be based on free consent." Hence, if the consent is obtained by force or fraud, the marriage is vcidab1e." Again, having regard to the sexual and reproductive aspects of marriage, impo- tence of a party renders the marriage voidablefi Finally, the fact that the wife was at the time of . See Chapter 2, supra.

. Section 5, H.M.A.

.Section 11, H.M.A.

. Section 12, H.M.A.

. Seetion18, H.M.,A.

. See para 3.s,m1;--a.

.Section l2(1)(c), H.M.A_ . Section 12(l)(a), H.M.A.

au-|vat.n&(,,.JM'-' It 41 marriage pregnant by some person other than tl1e husband, unknown to the husband. renders the marriage voidable} 3.3. Hence arises the threefold . classification of marriages into valid, void2 and voidable marriages." A valid marriage gives rise to -all the mari- tal obligations. The obligations can be enforced by a decree tor restitution of conjugal rights, and the children are legitimate. The obligations can be tenni- nated (ii at all) by obtaining divorce, or (to use an ex- pression which is convenient), suspended by obtaining judicial separation. A void marriage is no marriage in the eye of the law, and need not be formally termi-- na_ted,--although, for the sake of convenience, a decree: of nullity can be obtained. A void marriage does not create any marital obligations between the couple, and but for the special statutory provisions in that re- gases the children would be illegitimate. A void-- able marriage stands midway between the two. It creates marital obligations, and can be terminated by obtaining a decree of diverce (if the requisite grounds exist), or those obligations can be suspended by obtaining judicial separation. It can, however, be avoided by a petition, presented by the party affected. on the ground of one of the statutory defects (men- tioned above) .5 In this sense, it ditfers from a valid marriage.

3.4. This triple classification is unavoidable, and the scheme as a whole cannot be done away with. Such modifications as are required (if at all) concern mainly the conditions themselves, or the categorisa- tion of a particular marriage as void or voidable. or other_ incidental matters.

We proceed to consider such changes as relate to the conditions of the marriage (section 5). Points concerning the effect of breach of a particular condi- tion will be dealt with later (section 11-12).

. Section l2(1)(d), H.M.A.

. Section 11, H.M.A.

. Section 12, H.M.A.

. Section 16, H.M.A.

. Para 3.2, supra.

N I.nJal4J V Valid,void and void-

able marri-

ages.

Section 5 {ii)--'Un-

soundness of mind as a _ ground of nullity of marriage.

42

3.5. The first question concerns the- effect of mental ineompetency upon capacity to contract a valid marriage. This is a matter of some difficulty. The Hindu Marriage Act contains, in section 5i'_ ii) and section l2{ 1) (b), a provision whereunder, if the oppo- site party was an "idiot or a lunatic" at the time of the marriage, the marriage can, subject to certain con- ditions, be avoided.

The words "idiot or lunatic" have not been defined in the Act. These words are, no doubt, familiar to Hindu Law. They occur also in the Indian Divorce Act,' and may have been derived from that Act. The word "lunatic" occurs in the Indian Lunacy Act, 1912, also. But the precise scope of this particular condition of marriage requires some examination.

3.6. Idioey and lunacy are expressions used in the legislation that had been passed, relating to the re- moval of certain disabilities of Hindus. An idiot is one congenitally incapable of distinguishing between right and wrong."

3.7. In a Calcutta ease-3, the meaning of the ex- pression "lunatic" in section 5(ii) of the Hindu Marria- age Act was discussed at length. The court referred to various cases, including Ratneswctri Nnndan Singh 1.'. Hhagawafr' Saran S:'ngh'*--and noted the contention that unless total loss of reason, incnpacitnririg :4 party to the marriage to zrndersrond the very cererrtoriy of the marriage, is found, the extremely strong presump- tion in favour of the validity of the marriage remained unrebutted and, therefore, prevails (which is the law laid down by the Judicial Committee of the Privy Council in Monfi Lei v. Chandrabati Kumarrfi, and referated by the Federal Court in the Rame.rww's Case. The Court pointed out that the old Hindu law under

1. Sections 19(3) and 48, Indian Divorce Act, 1869,

2. (a) Tirumanaagaf v. Ramrmwami, (1863) 1 M.H,C.R. 214;

(b) R. Jkfutliammaf V. Sn' .S'nbramam'a.swamt', A.l.R. 1960 S.C. 601, (1960) 2 5. CR. 721.

3. A.I.R. 1969 Cal. at page 306.

4. Rarrzeswari Nandrm Singh v. Biragawcrfi' Saran Sh-rglr, A.!.[{. 1950 RC. 142.

5. Mortji La! v. cimdmsazr in.m.m', (1911) l.LR. 33 Cal. 'mo n=.c:.) 43 which insanity was not a disqualification for pur-- u poses of marriage, was no longer in force. Sir Guru-

das Banerjee had, in his Tagore Law Lectures on .Marriage and Stt-idhan,1 said:----

"Even considering Hindu marriagc- to be entirely a sacrament, the acceptance of the bride is a necessary and indispensable part of the ceremony. Therefore, he whose loss of reason is complete, should he deem- ed incompetent to accept the gift of the bride. Such marriage is invalid on 'the ground that the capacity for performance of the essential ceremony of the marriage is lacking in the bridegroom."

The Court then dealt with the section in the Act--- The (Hindu Marriage) Act does not say anything about various degrees of lunacy. But who is a lunatic? The Hindu Marriage Act does not even define a '1unatie'.3 The Indian Lunacy defines a 'lunatic'. By section 3, clause (5) thereof, 'lunatic' means an idiot or a person of unsound mind.

"It is, therefore, a hard and fast definition and we cannot give any other meaning to the word 'lunatic' than that which is mentioned in the definition i:self... Hence, going by the language of the Hindu Marriage Act, it is not possible to make room for diffferem degrees of lunacy."

3.3. A1: common law, the mental incapacity, due P0-sitionin to unsoundness of mind, to consent to marriage, un-- Eififigfiat doubtedly' made the marriage void ab initio, be-}:t'Wa,=}nd cause "consent is an essential ingredient of a valid t,-$12,?"

19th cen-

_ tLlJ'Y.

I. Banerjee, Marriage and Stridhan cited in the Rarzreswari -- case, A.l.R. 1950 F.C. 142.

2. Emphasis supplied in the Rame.s'war:' case, A.l.R. I950 F.C.

142.

3. Emphasis supplied.

4. Tolstoy, "Void and Voidable Marriages", (1964) 27 Modern Law Rev. at page 394. .

7 M of Law/74--4 Position in England under Act of 1937 and subse-

quent Acts.

44

marriage."ln Brown.-;'ug v. Reane', it was .st:m:d'--', "want of reason must, of course, invalidate a com tract, and the most important contract of life, the very essence of which is consent."

An Act of 1742", replaced by an Act of 1811', made void the marriage of any person who was found lunatic by inquisition or any one whose person or estate had been committed to the care and custody of trustees under any statute, and the marriage of such a person was void thougli it m.ight have been solenrnized during the lucid period. Thus, as Lord Stowell pointed out", it was the state of insanity", and not the affected person's ermdilion of rm'm! at the time of the marriage, which made the marriage void. The scope of the concept of lunacy was expanded in course of time7----«this will be explained later'-'.

Mental incapacity new renders the marriage void- able, and not void in England°.

3.9. The Act of 131.1 (referred to above'-",l requir- ed that the person must have been found lunatic by inquisition, or must have been committed to care and custody under some statute. The Matrimonial Causes Act of 1937 ( and later Acts) eztpamled the scope of unsoundness of mind in this respect. Even if a person is of unsound mind but is not so found by inquisition, it was felt that the marriage should

1. Browning v. Keane. (1812) 2 Phil. ECI'.'l. 69; I61 E.R. 1080.

3. Also see Re Park, (1954) Probate 89, 96, afiirmed (1954) Probate 112 (I953) 2 All E.R. I411; 97 S01 Jo 830, approved in Hill V. Hifl, (1959) 1 All E.R. 281 (P.C.).

3. (1742) 15 Geo. 2 Chapter 30.

4. The Marriage of Lunatics Act, l8ll.

5. Turner V. Meyers-, (1808) 1 Hagg. Const. 414, 417. 161 FR. 600 (Lord Stowcll).

0. This aspect is of importance.

7'. (a) Section 7 (1) (b) , Matrimonial Causes Act, 1937; (hi Section 8 (I) (b) , Matrimonial Causes Act, 1950;

(c) Section 9 (1) (b), Matrimonial Causes Act, 1965;

(d) gection 12, Matrimonial Causes ACT, l973--para 3.12, in la.

8. Para 3.9, infra.

9. Para 3.12, infra.

10. The Marriage of Lunatics Act, 1811, Para 3 .8 supra.

-.5 'n 45 be capable of annulment in the interests of the other party no less than in the interests of possible children of the marriage and of the State1- Progress made in the classification of mental diseases also provided scope for improvement, and the Act of 1937, there- fore, provided? that the marriage should be voi:lab.!e on. the ground that either party was, at the time of the marriage, "of unsound mind or a mental defective under the Mental Deficiency Act, 1913 to 1927, or was subject to recurrent fits of insanity or epilepsy."' The principal object of this formulation was to make it clear that even though the ceremony and its T€SUl'Z- ing rights and obligations may have been understood by the party said to be mentally abnormal, the ab- normal 'mental state, if it could be shown to have "existed, would render the marriage voidable. In a case decided in 18853 it was held that it was not suffi- cient that the marriage ceremony was understood by the party, and it was also necessary that that party should understand the obligations of married life. This aspect assumes importance, because it would appear' that there could be cases where a person might be mentally abnormal, but, by reason of the administration of tranquillizers, he or she may not appear to be so at the time of marriage and may even appear to understand the marriage ceremony at that particular moment.

3.10. An analysis will reveal that there are two ideas which underline the approach of the common law towards capacity to exercise legal po 'ers. First, there is the insistence upon the necessary state of mind to transact the business or legal act in question (the relevant state being dependent upon the exact nature of the business or act). Secondly, there is the proposition that soundness of mind is based upon ability to manage oneself and one's affairs.

1. Report of Divorce Law Commission (I912), page 11.7, cited in Graveson, Century of Family Law (1957), page 337.

2. Section 7(l)(b), M.C.A. 1937.

3. Durham v. Durham, (1885) 10 probate Division 80, 8] referrtl to in Re Park (1953) 2 All. ER. 14]], I427.

4. Suggestion by an aggrieved party in a file of the Ministry of Law.

Position at common law----two aspects.

Position ' under Act of 1950, as amended in 1959.

46' This approach clearly stated in an English case'- where it was said that the question for decision was whether a person was of perfectly suflicicnt sound- ness of mind to form a valid contract of marriage. "If the incapacity be such," said Sir John Nicholl, in another case", "that the party is incapable o[ under- standing the nature of the contract itself and incap- able, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract."3 3.11. In England, a marriage could, under the Act of 19504 be avoided (even if originally valid) on the ground that '_'either party to the marriage' was, at the time of the marriage, of unsound mind or was then sufiering from mental disorder" within the meaning of the Mental Health Act, 1959, of such a kind or to such an extent as to be unfittcd {or man riage and the procreation of children or subject to recurrent attacks of insanity or epilepsy." By this pro- vision, a marriage could be annulled even though, at the ceremony, a spouse possed the necessary capa- city discussed above.

The phrase "subject to recurrent fits of insanity" (in the English Act of 1973) was contrued" to mean "subject to an increase of the acuteness or severity of unsoundness of mind recurring periodically in its course."3

1. M'Adén V. Walker (1813) 1 Dow. 148. 2, Browmlvg V. Rearre_(18l 2} 2 Phil]. 69, 70, 7'}; H2! ER. 10130.

3. c.f. Sir William Scott, in Turner v. Meyers, (1808) 1 I-fag. Con. 414, 418, 16] ER. 600.

4. Section 8(!)(b), Matrimonial Causes Act, 1950. as amended by the Mental l-lcallh Act, 1959, section 149. Schedule V11. Pt. 1. . '

5. See now the 1973 Act--~Para 3.12, infi-u.

6. As to mental disorders, sce para 3.l2A. infra.

7. Section 7'{l)(b), 1937 Act para 3 .9 supra.

1-a Smith V. Smith (1940) Probate 179, (1940) 2 All E.R. 595; 84 Sol Jour. 359.

8. Section 12, Matrimonial Causes Act, 1973.

47

Thus, a person who, at common law, though of u:1~ sound mind, contracted a marriage during the lucid interval (which would have made the marriage valid, unless he were a lunatic so found by inquisition, when the Marriage of Lunatics Act, 1811, would have applied, before its repeal in 1959), is regarded as contracting a voidable marriage under the Act of 1950. .

3.12. The current statutory provision in England Cltfffflt on the subject reads :-»---- gtfotgl-:'if)¥1_ l2.A marriage cciebrated after 31st July, 1971, , shall be voidabie on the following gsounds only, that is to say--

:3: 3F * =3: * (C) that either party to the marriage did not 'u.»'alidI_v consent to it, whether in consequence of duress, mis- take, unsoandness of mind ; or

(d) that at the time of the marriage either party, though capable of giving a valid consent', was safl'er- irig (whether continaotisly or interinittently) from 'mental disorder within the meaning of the Mental Health Act, 1959, of such a kind or to smsitr an ex-- tent as to be imfirted for marriage ;

3.12A. As regards mental disorders, the McntallMema1 Health Act1 provides as follows :-- Health Act, 1959.

"in this Act, 'mental disorders' means mental 111-- ness, arrested or incomplete development: of mind, psychopathic disorder, and any other disorder or disability of mind."

3.13. So much as regards the substantive law. A Presumw presumption of validity? of marriage arises where it tiondpf is alleged that a party was of unsound mind at the Va" "'3"

1. Section 4(l), Mental Health Act, 1959 {Eng.).

2. Tostojv, "Void and Voidablc Marriage" (I964) 27 Modern Law Review, at page 394.

(_3onsidcra-

l.l0I1S rele-

vanh 48 time or marriage and was, for that reason of giving consent tion is rebuttablefl.

incapable to the marriage,' but that presump-

3.14. The above brief resume will show that, speaking from the social point of view, several con- siderations seem to have competed with each other for recognition in this field. The first is that the con- sent of the mentally incompetent person is no con- sent at all. The second is that it is not in the interests of the other spouse--who is of sound mind--that. he or she should be made to live with a person men- tally incompetent. The third consideration, which may be called one of eugenics, is that the marriage of a person with mental abnormality might lead to the birth of children who would be abnormal. There might be a fourth consideration also, narnelv, that even the party who was suffering from mental ab- normality, though not of such a nature as to affect the competence to consent, should be free to present a petition for avoiding the marriage.

3.15 to 3.17. This, in fact, is the law in Eng- land, under which, subject to specified conditions, a marriage of a person of unsound mind is voidable at the instance of either party [See s. 12(1)(c)(d) Act of 1973]-'5 Giving the right of avoiding to the insane party may not necessarily conflict with section 23(1)(a) in so far as it prevents a party from taking advantage of his own wrong. Such a person would not be taking advantage or his own wrong', because there is no deceit, and it would be a "most infelicitious use of language" to say so when there is no deceit'? How- ever, it may conflict with the prohibition against tak-

1. Browning v. Ream? (1812) 2 Phill. Ecol. 69; Porhmiomh v.

Portsmouth (I828) A Hag. Con. 355 at p. 359 ; Cooper v.

Grime (189l) Probate 369; Re Soier (1947) W.N. 46; Re Park (1954) Probate 89 at p. 96.

' 2. Cooper v. Grave, (1891) Probate 369, 376.

3. Para 3.12. supra.

4. Section 23 (l)(a), Hindu Marriage Act.

5. (:12 Lord Merrimaifs observations, (with reference to impor- tance) in Hqrrhan .v. Harman, (1948) 2 All E. R. 639, 64-1.

49

ing advantage of one's "own disability" in section 23(1)(a). An express provision over--riding section 23(l)(a) could be inserted.

"Unsound mind" and "insanity" mean the same thing'.

3.1.8 and 3.19. We are of the view that a provision 1460*-at": substantially on the lines of the English provision" 'l],1,e?,n'§l,ii,c:1n of 1973 should be substituted, and in addition, in se<_=_ti0II order to avoid controversy, the situation of r-icurrent Sm)' HM'/' attacks of insanity or epilepsy should specifically mentioned" (as in s. 8(1) (b) of the English Act of 1950). The revised' provision in section St' ii) should, therefore, be as follows* :---

"that at the time of marriage neither party to the marriage----

(a) was incapabie of giving a valid consem to it in consequence of unsaandness of mind ; or

(b) though capable of giving a valid czmrent, was suflering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of cht'la'ren ,' or

(c) was subject to recurrent attacks of insanity or e{2ilep.ry."

3.20. One of the conditions which is required to Section be fulfilled for the solemnisation of a Hindu marriage is, under section 5(iii), that . mum ageand Section 9(1) "(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage."

|. (a) ggnsiirlr v. Smith, (1940) Probale I79 ; (1940) 2 All E. R.

(h) Whysailv. Wny.vnIi(l960) Probate '7 (1959) 3 All 11. R. 389 395.

.-.., 1

- Sectiun 12. Matrimonial Causes Act 1973 ; para 3.12, supra.

3. Para 3.1], mprn. '

4. in section 23(l)(.-,1), . an express exception to be made For lflS3l'I]lC}', S66 para

3. I5, morn.

Suggestion to give right to avoide the Marriage 50 However, the fact that a marriage has been solem- nized in violation of this condition has not been made a ground for any matrimonial relief. The general understanding' is that the marriage remains valid, though criminal penalties may be attracted by "reason of violation of the requirements as to minirnum age. Certain observations in a Punjab case", however, re- quire to be considered. In that case, which related to a petition for restitution of conjugal rights filed by the husband against the wife, the respondent wife, at the time of marriage, was hardly 12 years of age, and the petitioner husband was also 15 or 16 years of age, so that section 5-(iii) was not compiled with. It was the defence of the wife that, because of this. no marriage could validly take place. The High Court took the View that under section 9(2), only that fact could be pleaded in answer to a petition for restitution which was a ground for matrimonial or relief. The fact that the parties were under--age was not a ground for nullity or judicial separation or divorce. The High Court, therefore, held that it was not a defence to a petition for restitution that the parties were under-age. While doing so, however, the High Court observed :-----

"A marriage may not be valid if not performed between the parties who have not attained the requisite age as prescribed by law" Invalidity or voidability of the marriage: cannot be pleaded in defence in answer to a petition for restitution of conjugal rights."

3.21. It was suggested before us that these obser- vations create some doubt as to the effect and sig- nificance of the requirement of the minimum age. Since the general understanding' is that the breach of |. See para 3.21, Enfm.

2. Budhan v. Man Rm', (1970) 72, Punjab Law Reporter 102, 104 (H. R. Sodhi J.).

, ._.____:_.._._.___ . . ._.

3. Emphasis supplied.

4. (a) Ram Saran v. Simi, A.I.R. 1939 All 340 [Case under the Child Marriage Act). '

(b) B. Sirommdy V. P. BI'a_.,ravarl'rymrrma, A.I.R. 1962 Mad. 400 (case under the Hindu Marriage Act).

51

that condition does not affect the validity of the marriage, it was stated that it was advisable to avoid such controversies in future.

3.22. The-suggestionwas that from the social point of view, it wouldbe more just. to provide, that the party who was under--age (mostly, that party would be the.-wife) should -have a right to avoid the marri- age, subject to apropriate, safeguards as to limitation of one year and non-consummation' of the marriage.

It may in this connection be noted that in England, before 1929, the age of consent for marriage was determined by puberty (fixed, by presumption, at 14 years for "boys and 12 years for girls). Milrriage under that age (if unconsummated) could heavoided by extra-judicial act, after the parties attained 14 years and 12 years respectivelyg.

King Henry VIII, who, while under fourteen, married Catharine of Ar on in 1504, made-"* a "pro- test" against the marriagighn 1505, when he reached the age of fifteen. It may be noted' that Catharine was the widow of his elder brother, and was five years older than Henry VIII. But the protest became irrele- vant, because he later married her5 again in 1509.

3.23. We have, however, not accepted this sugges-

tion, as vie think that public opinion in India is not ted yet ready for such a change. Besides, having regard to the fact that many marriages in violation of the condition-in question may be taking place, such a change might create serious difficulties in practice.

1. Section 12 would then requireamendrnern.

9. Geary, Marriage and Family Relations (1892), page 30, quoted in Graveson, A. Century of Family Law (1957), page 340.

3. Geary, Marriage and Family ReiaLions.(l892), page 30 quoted in Graveson, A. Century of Family Law (1957), page 340.

4. Anthony Toyne, An English Readers' History of England (Oxford, 197]), page 99.

5. Geary, Marriage and Family Relations (1892). page 30.

Suggestion not accep-

Introduc-

tory.

Section 9-

Restitution.

Section 9(2) con-

sidcred.

CHAPTER 4 RESTITUTION or co'NmGAL- RIGHTS UNDER THE HINDU MARRIAGE ACT.

4.1. This Chapter will he devoted to a discussion of the relief of restitution of conjugal rights under the Hindu Marriage Act.

4.2. The remedy of restitution of conjugal rights is dealt with in section 9 of the Act. which reads as follows "9(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 appli- cation should not be granted, may decree restitution of conjugal rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground For judicial separation or for nullity of marriage or for divorce."

4.3. Sub-section (2) of section 9 has created con- ' siderable difiiculty, and the problem that has arisen is this.

Where the respondent cannot prove, on the part of the petitioner, a matrimonial misconduct constituting a ground for judicial separation or nullity of marriage or divorce under sub-section (2), can he or she still. defend t e petition for restitution on the ground that. he or she (i.e. the respondent) has withdrawn from the society of the petitioner because of a_ reasonable excuse as mentioned in subsection (1)?

52 53

,-4.4. The majority' of the High Courts answer the question in the aifirrnative. The Andhra Pradesh High Court, however, has taken a different view".

4.5. It is plain that the majority view is inconsis- tent with the clear and unambiguous words used in s. 9(2): As a matter of construction, it -is impossible to hold that s. 9(2) does not control s. 9(1). If that be so, reading ss. 9(1) and (2) together, it follows that no plea can be taken under's. 9(1) in support of the contention that there is a legal ground why the application should not be granted unless such a plea satisfies the specific requirements of :3. 9(2). Why the Legislature made a general provision in s. 9(1) and then proceeded to control it rigorously by 5. 9(2), it is difficult to understand or appreciate ; but, under no rule of construction can the width of the provisions in s. 9(1) resist the application of the rigorous test laid down by s. 9(2).

4.6. There is, however, no doubt that the effect of reading section '9(1) and s. 9(2) together is unfair and unjust. Restitution of conjugal rights covers a very sensitive area in matrimonial relations and it seems to us that it should be permissible for the party resisting restitution of conjugal rights to satisfy the ' court that restitution should not be granted on grounds, which may otherwise be reasonable, though they may not satisfy the test prescribed by s. 9(2). It is because courts felt that interpreting s. 9(2) as over-riding s. 9(1) may lead to social injustice that they felt compelled in substance to ignore the provisions of

5. 9(2) and treat 3. 9(1) as though it were indepen- dent of s. 9(2). We are, therefore, inclined to recom- mend that s. 9(2)_ should be deleted.

4.7 and 4.8. There is one more consideration which has weighed in our minds in coming to this conclusion. It is well-known that in proceedings under s. 488 of the Code of Criminal Procedure3, where a I. Shairm'-Devi vi. Eat;-9., A.I.R. 1977i,' liens"ji«§.T{.¢;-§g;.ig' cases).

. Ammpuramma v. Appa Roa. AJR. 1963 A. P. 321.

3. Section 488 of the Code of 1898. see , now, section 125 of the Code of 1974.

n Recom-

mendation to delete section 9(2), H.W.A.

Section 9(1) Burden of proof 54 wife, including a Hindu wife, applies for maintenance against her husband, she has almost in everylértse to justify her separate residence. ' Invariably, when a husband is cpnfronted 'With a claim made by his wife for maintenance' under' s. 488, he pleads his readi- ness and willingness to maintain her provided she returns to his residence and when such a plea is raised by the husband, the wife has to satisfy the court under s. 488(4) that there is a sufficiefit and reason- able ground for her' refusal to stay with her husband. It is not disputed that when the wife is required to show a reasonable cause for insisting to stay separately from her husband, she is not confined to the pleas such as are contemplated by s. 9(2) of the Hindu Marriage Act. In other words, thelplea which the Hindu wife can take under s. 488 in justifying her separate residence need not necessarily be a plea which would be a ground for judicial separation or for nullity of marriage or divorce.

4.9. If s. 9(2) were to remain on the Statute Book, it would, we venture to think, be very easy for a Hindu husband, against whom an application for maintenance has been made by his wife under1 section 488 of the Code of Criminal Procedure 1898, to retaliate by filing a petition for restitution of conjugal rights, and if he adopts such a course, a decree for restitution would invariably follow unless the wife is able to prove any of the grounds contemplated by s. 9(2). Thus, s. 9(2) would indirectly, but decisively, restrict the rights of a Hindu wife under s. 48?, that could not have been the intention of the legislature when s. 9(2) was enacted. We have, therefore, no hesitation in recommending that 3. 9(2) of the Hindu Marriage Act should be deleted.

4.10. There seems to be some controversy as to whether the burden of proof of "reasonable excuse", mentioned in section 9(1), is on the party against whom the petition is made, or, whether the absence of such excuse is for the petitioner to prove. In a mi". Section "125" is the corresponding provision in the Code 1;; 1974.

,-r.-------... . .

55

Delhi case} it has been stated that for the success of the petition, the petitioner must prove three things,--nan1ely, first, the absence of reasonable ex- cuse for withdrawal from society, secondly, the ab- sence of any legal ground why the petition should not be granted, and, thirdly, the truth of the state- ments contained in the petition. However, it seems to have been the view of the Punjab High Court? that the burden of proving reasonable excuse for staying away is on the person opposing the petition. This also seems to be the Madhya Pradesh view.3 In the circumstances, a clarification is desirable in this regard. 'Under the corresponding section in the Indian" Divorce Act', it is for the respondent to prove the existence of a reasonable excuse.5 This seems to have been the English law also," so long as the action for restitution was allowed. [The action has recer.tly_ been abolished7].

4.11._ Since, ordinarily, the presence of a "reason- able excuse" would be more within the knowledge of the respondent? than the absence thereof could be within the knowledge of the petitioner, it would not be unfair to provide that the respondent should prove its existence. It may be diflicult for the petitioner to prove the negative.

4.12. We recommend that section 9(1) should be amended as above" as to the burden of proof.

1. Si1ann'Dev:'v. Edlivafir saga, AIR. 1971 Delhi 2 94, 2.«6. para 12.

. Herdip Singh v. Dali}: Kaur, A.l.R. 1970 Punj. & Haryana

284. 285, paragraph 5 (C. D. Suri J.}.

. Alma Sahib v. Tara Bai A.I.R. 1970, M. P. 36.

. Section 33, Indian Divorce Act, 1869.

. Warfia v. Wadia. (1914) I.L.R. 38 Born. I25, 130.

. cf. Green v. Green, (1916) Probate 188. 191 (Shear:-nan J.').

. Section 20, Matrimonial Proceedings and Property Act, 1970(Eng.).

8. cfisection 106, Evidence Act.

9. Para 4.11, supra.

\ N

--l6\UIJ-'-La Recum~ mendation as to hur-

den of proof under sec-

tion 9(1).

Intro-

ductory.

Recom-

mendation.

as to section 10(1) H.M.A.

CHAPTER 5 JUDIC1_AL SEPARATION UNDER THE HINDU MARRIAGE ACT 5.1. We shall be concerned in this Chapter with judicial separation under the Hindu Marriage Act, dealt with in section 10. This relief is purely the creation of statute. ' It first found place, under this name, in the matrimonial legislation passed in some of the provinces. But it may be noted that the Hindu Women's Right to Separate Residence and Mainten- anoe Act, 1946, gave the wife some, though not all, of its advantages.

5.2. In general, judicial separation is a milder relief than divorce, and for that reason, while most of the grounds for judicial separation and divorce are com- mon, the requircment is milder in case of judicial separation under the present Hindu Marriage Act.

Since we are making the grounds of divorce more liberal, and doing away with the maximum periods1 at present prescribed in connection with various diseases, the specific mention of grounds of judicial separation in section 10( 1) is not necessary. The sub- section should now be revised so as to refer to the grounds included in section 13(1), (which relates to divorce).

1. See recommendations as to section 13, H.M.A., para 7.6 to 7.23, infra.

56

CHAPTER 6 NULLITY OF MARRIAGE UNDER THE HINDU I MARRIAGE ACT 6.1. We deal in this chapter with nullity of mar- riage under the Hindu Marriage Act. Questions al-

. ready dealt with in connection with proposals of the Ministry of Law' will not, of course, be discussed again.

6.lA. The question whether a declaration can he obtained under section 11 of the Hindu Marriage Act after the death of either party" is a matter of some uncertainty. The question came up for consideration in a recent Punjab-" case, where all the cases are re- viewed; In the Punjab case, a petition under section 11 was filed after the death of the husband by Kishni Devi, one of the widows, impleading_ the (other) widow of her husband as a respondent, and claiming a declaration that the pctitioner's marriage with her (late) husband was a nullity. Apparently, the ground for seeking such declaration was that the petitioner's husband had been already married to the respondent. The petition was dismissed on the ground that it was not maintainable in view of the husband's death. On appeal, the High Court set aside the dismissal, em- phasising that in.the case of a void marriage, there is no marriage in the eye of law. The High Court held that one of the spouses in such a marriage can obtain a declaration from the court about her status quo even after the death of the other spouse. The High Court dissented from the contrary view taken by the Madras High Court'.

1. Chapter 2, supra.

2. See also para 2.5Asu,pra.

3. K:'shm' Devi v. Tulsanf Dew', (I972) Punj. L. R. 561.

4. (a) Gert' Ammo! V Tulsi Ammm', A.l.R. 1962 Mad. 510 ; On appeal Tulsi Ammo! v. Gan" Animal, A.l.R. 1964, Mad. 118.

(b) Param.samz' V. Samarhammal, A.l.R. 1969 Mad. l2-4.

57

Introduc-

tory.

Section ll and petition for nullity after death of spouse.

Recom-

rnendation.

to amend S. 11 HMA.

Section 12(1)(3)--

Impotence as a ground of avoidance.

Section 12(.1)(b).

I-l.M.A.

and idiocy or lunacy.

Section l2(1)(c).

H.M.A.

Section 12 (1}(d), I-I.M.A.

and pre-

marital pregnancy.

58

We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act'. A petition under section 11 of the Hindu Marriage Act cannot be appropriate, because the other spouse is an essential party to any such petition. This should be clarified by an amendment.

6.2. We recommend that section 11 should be suit- ably amended for the purpose. ' 6.3. In regard to voidable marriage, there is one matter in respect of which reform is urgently required. That relates to the case where a person is not impotent at the time of the marriage, but is found to, be so when the marriage is, for the first time, attempted to be consurnmatcd2. It cannot be disputed that such cases should he covered because, on the words of section, the petitioners claim can be met technically on the ground that the impotence supervened after the marriage. Section 12(1)(a.) of the Hindu Mar- riage Act, which makes the marriage voidable on the ground of impotence "at the time of marriage", should be revised so as to cover such cases. We think that the following reedraft would be simple, and achieve the object: ' "the marriage has not been consummated owing to the impotence of the respondent."

6.4. Section 12(1)(b) of the Hindu Marriage Act, which relates to idiocy or lunacy, will?' now be read in the light of section 5(ii) as proposed to be revised, 6.4A. Section 12( life) is discussed later'.

6.5. Under section 12(1)(d) of the Hindu Mar- riage Act, subject to certain conditions, the pre-mari- tal pregnancy of the wife is a ground on which the marriage could be avoided.

. Section 34 S. R. Act see para 2.6, supra. . Ravarma v. Susheelamma, A.I.R. 1967 Mys. 165. . See, recommendation as to section 5(ii).

. Sec para 6.3 izgflra para 3.19. supra.

fit-lb»-l 59 The Act, however, does not provide for any such relief-to the wife of the male with whom the pregnant w_i.fe had sexual relations. .It was suggested that if the rationaleof the present provision entitling; the innocent husband (of the pregnant wife) to relief is that mutual love and aflection cannot possibly survive in such circumstances by reason of the grave fraud of the one party, then the same rationale applies in favour of the innocent wife of the male who has been guilty of sexual relations with another woman leading to that woman's pregnancy.

6.6. As Morse I. observed :--

"The essence of the marriage contract is wanting when the woman, at the time of its consum- mation, is hearing in her womb, knowingly, the fruit of her illicit intercourse wi1h 'a stranger ;_ and the result is the same whether the husband is ignorant of her pregnancy, and believes her chaste, or is cognizant of her condition, but has been led to believe that the child is hisl."

This reasoning, it was stated, should apply against the father of the child.

6.7. We are not in favour of any such change. We think that a distinction can be made between the preg- nant woman and her paramour. The former is burdening her husband with a child. The latter does not burden the wife with a child.

a 6.8. One of the grounds for avoiding a marriage .

is the fact that the consent of the petitioner (or his or 12fil)?3;__ her guardian) to, the marriage was obtained by i'orcel1:11}:14l1$ or fraud. The relevant provision is to be found in cm 13". section l2(1)(c) of the Hindu Marriage Act. The section does not expressly limit "fraud" to deception in relation to the _marriage ceremonies only or to the identity of the party marrying. But many judicial de-

cisions have taken that view. In a recent Bombay

1. Sissung v. Sissung, 65 Mich. 168, 31 N.'W. 770, 773 (U.S.A.), cited in Marres v. Mon-es, (1940) 13A 2d 603, Goldstein 'Family & the Law, (I 964) p. 652.

7M of Law/74r---5.

Section 12(I)(c) 'fraud'-

suppres-

sing previous marriage effect.

60

case} for example, it was held that a person who freely consents to a solemnisation of the marriage under the Act with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot object to the validity of the marriage on the ground of a fraudulent representation or concealment. Therefore, concealment of curable epilepsy and a false representation that a party to the marriage was healthy, does not amount to fraud within the meaning of section 12(1)(c) of the Act. ' 6.9. In a Calcutta case,-['9 the marriage was sought "to be annulled on the ground that at the time of the marriage, the girl was suffering from tuberculosis and that there was a fraudulent misrepresentation about her health. Evidently, the marriage was consummated. It was held that the marriage was not voidablc under the Hindu Marriage Act, 1955. Relying on the Eng- lish law and the position under the Indian Divorce Act, 1869, the High Court took the View that the fraud in relation. to matrimonial consent must exist at the time of solem_ni-zation of a Iharriage.

The High Court also stated that the provisions of the Hindu Marriage Act, 1955, "clearly suggest that concealment "of a disease other than those mentioned in the said section (section 13) cannot be the founda-

tion for avoiding the. marriage."

6.1_0. On the other hand, in a Madhya Pradesh casea, the respondent before his marriage was repre-- sented as a Brahman boy. when actually he was a dasiputra (an illegitimate child born of gurmi woman). The marriage was held to be voidable.

6.1OA. It has been held in another case4 that A "fraud" within the meaning of section 12(1) (c) means

1. Raghurmth Gopal Dafiardar v. Vtjaya Raghtmarh Daftardar. (1970) 73 Born. L.R. 840 (reviews cases). '

2. A.-mm Nara v. Lujjabaiiflevl. A.I.R. 1959 Cal. 773, 732.

3. Bimla Bar' V. Shankerlal, A.I.R. 1959, M. P. 8.

4. Rajaram Virwalcarma v. Deepabai, (1973) M. P. L. J. 626 ; (l9lT31)3g.2L. J. 6631. cited in the Yearly Digest (Aug. 1973), co . .

61

either deception as to the. identity of the other party to=.-the.- marriage, ordeeeptien-as-to the nature of. the ceremonies iheinmpertonnied. ¥1l1ere conscntzis given with intention ofimltrrying the other..party:a_nd with theknowledge that what is aolemnised is marriage; an objection to the validity of the marriage on. theégtound of any fraudulent misrepresentation or concealment is not tenable. Mere concealment of the fact that the party was once married to another cannot be a ground for annulment of marriage as it cannot be said that consent of the other party was obtained by "fraud within the meaning of section 12(1)(c). Of course, the marriage would be declared a. nullity under section 11 if _a spouse was living at the time of_ the ptarriagc, T The petition for annulment of the marriage ot .a 'pardanashin' girl was granted in a Patna case,-1 when the girl averted that she was given to understand, before the marriage took place, that the would-be husband was an afliuent man and was of the age 25-30 years, but after marriage, she discovered that he was not so affluent, and was also over sixty years of age.

_ 6.114, Thus, the law on the point requires to settled.. If the narrower view is socially the preferable view, it should be incorporated into the section, be- cause the present language does not carry any such limitation. If, on the other hand, the wider view is socially preferable, then that should be given legis- lative recognition.

6.12; to 6.14. It should, in this connection, Need for be clarifica-

tion.

bg Section 19-Divorce pointed out that case law" under the Indian Divorce Act di,,¢;,,_ Act, section 19, is not a sufiicient guide, because under that Act fraud is referred to as a possible ground for making the marriage void.

guished.

6.15. In England, before the Reformation, want English of consent, like any other impediment, rendered the

1. Babui Pamnate v.-Ram Agya Singh, AIR. 1968 Pat. 1190, 192, 'para 10.

'2 . E.g.Emma7tualv. Kamal, A.I.R. 1934 Pat. 670.

Law Consent and essential ingredient.

Efiect of duress.

Effect of fraud not relating to identity or cere-

mony.

. 62 marriage void ab initio} and this must have remainecl so after' thekefornxation, except that in case of certain impediments, marriages became voidable, as for example, marriages within prohibited degrees or in the case of importencea.

6.16. Decided authorities in England establish that consent is an essential ingredient of marriage, and that. its absence, howsoever brought about, makes the mar» riage void ab initial"-5.

6.17. So farias duress Vitiating an otherwise valid" marriage is concerned ll'. must be proved that the will of the party complaining has been over--bornc by genuine and reasonably held fear caused by the threat of immediate danger, for which the party is not hi1n~ self responsible, to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. Duress need not come from the opposit ' partly".

6.18. In relation to fraud, however, English courts have taken a narrower view.

point directly in issue was whether the marriage was vitiated by the wife's fraud in stating to the husband.

(in order to gain hisjconsent to the marriage), that she was not pregnant per alium, when, in fact, she was. But in deciding this point, Sir Francis Jeune P. also examined the effect of duress and fear, and held that these factors which also caused "an absence of consenting will", lilsfewise rendered the marriage void ab initio; he held that fraud or error invalidated a

1. D. Tolstoy, "Void and Voidable Marriages", (1964) 27 Modern Law Review 385, 387. _

2. D. Tolstoy, "Void and Voidable Marriages", (1964) 27 Modern Law Review 385, 387.

3. Fulwoods' case (1638) Cro . Car. 482, 488, 493, referred to in Mass V. Moss, (1897) Probate 263,268.

4. Torry V. Browne, (1661) 1 Sid. 64, 65 ; see D. Tolstoy, "Void and 3/oidable Marriages", (1964) 27 Modern Law Review 335, 89. .

5. Harfordv. Morris, (1776) 2 Hag. Con. 423, 436 ; as explained in Portsmouth v. Portsmouth, (1828) 1 Hag. Eccl. 355, 359.

6. Szechter v. Szechter, (1970) 3 All. E. R. 905, (Sir Jocelyn: Simon P) For comment, see 121 New Law Journal 160.

7. Moss v. Moss, (1897) Probate 263, 266, 267, 269.

In Moss V. Moss,' the 63 marriage only if the petitioner was thereby deceived as to the identity of the respondent, and, since the "petitioner (husband in that case) was deceived not .as 'to the respondent's identity but as to her pregnancy, the marriage was valid.

6.18A. Fraud or mistake as to the ceremony made the marriage voidl. For example, where there is a mistaken belief that the ceremony was one of betro- thal and not of marriage, the marriage is void for want of consent? As Lord Guest has said", "In a void rnarriage, the decision depends upon the ascer- tainment of a state of [acts instantly verifiable at the date of the marriage, such as lack of capacity or of the necessary consent or duress."

6.19. We are of the view that having regard to Indian conditions, the law should not be so narrowly

-confined as has been done in England'. No doubt, scope should not be left for all kinds of flimsy excuses for avoiding a marriage on the ground _of fraud. But, at the same time, serious injustice is likely to result if fraud affecting vital matters (such as, absence of a particular disease) is totally disregarded. We do not see_any reason in justice for forcing the parties to hold on to= a marriage when one of them has been

-cheated by or on behalf of the other on essential matters, even if those matters do not pertain to the ceremony or the identity of the party marrying. It

-should be noted that as to the actual situation in Mass v. Mass', the legislature" had to intervene in England. This shows that the test adopted there is not totally satisfactory. --;-_;«.,| I. See Mehra V. Mehra, (1945) 2 All. ER. 690.

2. Per Hodson J. : View approved by Evershed M. R. (19:51) Probate 124, 133 : passage quoted in Kassim v. Kassfm, (1962) Probate 224, 229.

. Ross-Smith V. Ross-Snrfth, (1963) A. C. 280, 248 (H. L). . Para 6.18 and 6.l8A, supra.

5. Moss v. Moss, (1897) Probate 263, Para 6.18, .s'upra._

6. Present provision as to pre-marital pregznacy is in section l2('i'), Matrimonial Causes Act, 1973.

Fraud as to cere-

mony.

Proper ap-

proach.

Recom-

mcndation to amend section !2(1)(cJ, H.M. A.

{.6 64 6.20. .In the light of the above discussion, we recom- mend that in section 12(1) (c) of the Hindu Marriage Act, in place of the word "£raud", the words "or by fraudastothenatureoftheeeremonyorastolny material fact or circumstance concerning the respon- dent", should be substituted.

up _ .7 _ CHAPTER 7 nivo1ig_:E'iIN1)ER T_HB HINDU MARRIAGE ACT 7313. We deal' in' this chapter with certain important questions 'concerning divorce under the Hindu Mar- riage Act'. The substantive provision on this subject is 'contained in section 13. Before we deal with the specific grounds for obtaining divorce, we thinll: that it would be useful to refer briefly to the position before the Act.

7.2. Divorce was not totally unknown to the Hin-

Introduc-

tory.

Position before the dus before the Hindu Marriage Act. Customary" law. Act in; many "ceases, recognised divorce. There were also provincial_,enactnj1ents in force in some provinces, 'which permitted divorce in specific circumstances". In fact, even in the ancient texts, there is the often cited revolutionary verse in Parasara3. which runs as follows :_--

"Anclher husband is ordained for the woman in ' five calamities, namely, when the husband is lost, is dead, has become a Sanyasin, is im- potent or has falen."-"

This verse did not find acceptance, in its literal sense, in judicial decisions which constituted the Anglo- Hindu Law, and courts refused to recognise divorce except on the basis of custom or specific legislation". Banerjeei regards this text of Parasara as relating to a very primitive stage of the community when multi- plication was the main goal, or as evidence of a difl"er- ence of opinion amongst the Hindu sages. There is no doubt that, in general, the View taken was that a marriage was regarded as indissolnble.

. Seealso Chapter2for proposals of the Ministry of Law.

. See, infra-para 7.3.

. Parasara IV, 30. -

. The Sanskrit word is "Patita" (debased).

. See also Para 1.19, supra.

. -Kudomeo V. Jareeram (1877) I.L.R. 3 Cal. 305.

7. l3;§1er;{i51Hindu Law of Marriages and Streedhma, page O'*uLh-Bl-A310'-I 65 Legislation in Native States and in the provinces.

Signifi-

cance _ of Hindu Marriage Act.

General approach.

(56 7.3. Baroda was the first Indian State to introduce divorce for all Hindus by legislation1 in 1971. Divorce was alowed :59 certain Hindus of Malabar? in 1933. In 1946, divorce was introduced by Bombay. Madras for, divorce for Hindus in 1949. Saurashtra passed .ites'-H-indu _Divorcc,.Ar:t in 1.952. There were also enactments in force in Madras and Travancore Cochin, providingbfor divorce .for certain communi- ties". « 7.4. The Hindu Marriage Act, 1955, introduced divorce----(i) for all Hindus ; (ii) throughout the ter- ritories to which the Act extended ; and (iii) on spe- cifically enumerated grounds. It was, therefore, wider in its scope than the pre--existiug law, and, for that reason, the legislature proceeded cautiously. Briefly speaking, section 13 of the Act provides for divorce on the ground of living in adultery, conversion, incur- able insanity, virulent and incurable leprosy, venereal disease, renunciation of the world by entry into a re- ligious order, not being heard of as being alive for 'at least seven years, non-resumption of cohabitation after judicial separation and non-restitutioniof conjugal rights after a decree for such rights. In addition, the wife can petition for divorce on certain special grounds.

7.5. We shall, in due course, discuss the amend- ments required "in respect of specific grounds of divorce. But we may state, at the outset, that our general approach in this regard has been that while all reasonable efforts must be made to protect the stability of the marriage, at the same time, if circum- stances exist which show that conjugal life is impossi- ble either by reason of a matrimonial offence or by reason of a disease or other specified circumstances, then the reality must be recognised, and provision should be made for terminating the bond of marriage.

'1'.Ku.The liaroda Hindu Divorce Act, 1931, referred to in 'Report of Hindu Law Committee (1947), page 27, Paras 109,110.

2. Madras Act 21 of 1933.

3. Not enumerated here. ' 6.7 7.6. llnder section 13(l)(i) of the Hindu Mar-- Section 13 riage Act, "living in adultery", is a ground for divorce. in This should be contrasted with "aduItery'f. which is adultery" the ground of divorce usually mentioned in legislation in other countries and also in the Special Marriage Act. "In India", Parliament in 1955 took the view'that a" single act of infidelity to the marriage bond should not be a sufficient ground for relief by way of a decree of divorce for a Hindu marriage, but should only be a ground for judicial separation. It is, therefore, at present necessary that one of the parties to the mar- riage should be leading a continuous course of adul- terous lifel. The course of adulterous "living" is not a matter of the past, but must be continuing at the time of presentation of the petition".

7.7. In practice, however, it is diflicult to establish adulterous "1iving". Apart from this, on principle, a single act of adultery should, in our view, be enough. In Indian conditions adultery is, in general, very likely to impair. seriously the mutual confidence of the parties, thereby rendering conjugal life difiiicult if not impossible. '1 .

7.8. Both legally and morally, adultery has been re- garded as the most serious matrimonial offence" in other countries also.

7.9. to 7.11. It may, incidentally, be stated that the words "living in adultery" in section 13(1)(i), Hindu, Marriage Act, seem to have been taken from section 488(4) of the Code of Criminal Procedure, 1898, under which, a wife "living in adultery" could be refused maintenance'. In that section of the Code those words have a relevance, because, if the wife is living in adultery, she would be practically receiving some kind of financial support from her partner in adultery, and there is no economic hardship or possi- bility of vagrancy if she is refused the aid of the prompt remedy under the Code, which is primarily

1. Stzbramaniyam V. Penr1Ic.s'In'm:mm!, A.I.R. 1958 Mys. 4].

- 2. Rq}'am"V. -Prabhalcar, A.I.R. 1958 Bom. 254.

'3. See A V. A (1962) 2 All E.R. 573, 577; (1962) 3 \\'.L.R. 212, 217 (Ormrod J.)

4. See now, the Code of 1974, section 125(5).

Seatiqa 13(:)(1u) unsound-

ness of mind-

Recom-

mendation.

Section 13 and the desertion.

ground of divorce.

as aimed at preventing vagrancy. But it is, in our view, inappropriate to adopt that test when we are dealing with the _grounds of divorce.

7.12. In the light of the above discussion, we recommend that section 13(1)(i) of the Hindu Mar- riage" Act, should be revised so as to read as folIows:----

"(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."

7.13. Section l3(1)(iji) of the Hindu Marriage Act deals with unsoundness of mind as a ground of divorce. The requirement is that one of the spouses should be incurably of unsound mind for a continuous period of not less than three years. We are of the View that the minimum period of three years, imposed on the right to seek divorce, is not reasonable. Un- soundness of mind, which is incurable, constitutes a situation wherein the parties 'can be hardly expected to share conjugal life together; and to insist on a minirnum period is to demand a sacrifice which is unreasonable. The period should. therefore, be done away with.

(1.14. At present, desertion is not a ground of divorce under the Hindu Marriage Act. It is a ground of judicial separation under section 10, but this aifords no practical relief, because, when one party has deserted the other, the grant of judicial separation merely enables the deserted party to obtain a ruling from the court that, because of the unjusti- fiable conduct of the deserter, the deserted party will not be bound to cohabit with the deserter'.

7.15. The fundamental duty of the parties to a marriage is to stay together, and to give each other the warmth and support expected by the partners in the marriage. If this warmth and support be denied, the marriage falls in its substratum, and the situation

1. See section 10(2), H,M,A.

69

is an appropriate one for the grant of divorcef'--sfth- ject, of course, to the usual safeguards. It would. there- fore, be appropriate if desertion for a specified period

--say two=years----is made a ground of divorce under section-13(1) of the Hindu Marriage Act, by inserting a new clause for the purpose.

For this purpose, it will be convenient to adopt the definition of "desertion" contained inithe Explanation to section 10(1) of the Act.

7.l:6. Accordingly, we recommend that in section Recom: 13(1), a new clause should be added as follows:-- "'°°"'"'°"' "has deserted the petitioner for a period not less than two years immediately preceding the presentation of the petition, or"

And the following Explanation should be inserted at the end of section 13(1) :--

"Explanation.---In this 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 peti-

- tioner. by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."

7.17. We now consider a suggestion made to us, Section 13 to add a ground of divorce. There is, at present, no f.;'gJ;';'l'ff; separate provision for relief under the Hindu Marriage consum- Act, where either party wilfully refuses to consummate $:f,';'i;';':_ the marriage. In some circumstances, such conduct may amount to cruelty, but the suggestion was that the nature of the behaviour is such that it should he made a separate ground for divorce. Under the Special Marriage Act} wilful refusal by the respon- dent to consummate the marriage is a ground which renders the marriage voidable. This was the law, and is the law, in England also". But, on principle, it was

1. Section 256), Special Marriage -Act, 1954.

2. Section 8, Matrimonial Causes Act, 1960; section 9(1) (ab, Matrimonial Causes Act, 1965; scct1on_2(b), Nullily of Marriage Act, 1971 and the later 1973 Act.

70

stated, this is an incorrect approach. In general, a marriage 'is regarded as void or voidable by reason of some circumstances existing at the time of the marriage. This is obvious from a study of the various grounds which render the marriage voidable or Voidl.

7.18. It may be mentioned that in England, Lord Simon urged that wilful refusal should be a ground for divorce? though this suggestion was not accepted.

7.19. In England, wilful refusal of consummation was made a ground or nullity in 1937," as had been recommended by the Gorrel Commission of 1912*.

In 1955, the Archbishops' Commission on Nullity re- ported-" as follows :-- ---~ "We cannot find any logic in a proxdsion by which a marriage, valid at the time it was made, can be declared void ab initio as a result of a subsequent event."

The Archbishops' Commission went on to recom-v mend-that the provision should be repealed, and tha1: the following sub--section should be inserted at an appropriate place.

"In any proceedings for nullity of marriage, the Court may draw an inference of sexual in-- capacity at the time of the marriage from evidence that the marriage has not been consummated owing to the refusal of the Respondent tr: consummate the marriagc.""

1. Sections ll-12, I-I.M.A.

. House of Lords debates, Vol. 317, columns 809 to 811.

. Matrimonial Causes Act, 1937, section 7ll)[a'J.

. Gorrell Commission {I912}, Report (Cmd. 6478), para 553.

. The Church and the Law of Nnllity of Marriage (1955), page 34, cited in Putting Asunder (S.P.C.K. 1964). Dage 36.

6. The Church and the 1.aw of Nullily of Marriage, page 48. cited in Putting Asunder (1964), page 36.

L4|'|q":uL>Jl\J 71 r 7.20. The Morton Commission took a similar view of theilogic of the provision, and stated:'1 "To make this a statutory ground of nullity sug- gests some confusion of thought. Nullity should be granted for some defect or incapa-

-city existing at the date of the marriage. Wilful refusal is something that happens _ -after the marriage. and should therefore be ' 'a ground for divorce."

7.21. In the Commonwealth of Australia it is a ground for divorce that "the other party to the marriage has wilfully and persistently refused to con- summate the marriage." .

7.22. The suggestion before this Commission was that the following should be added as a ground. of divorce in section 13 of the Hindu Marriage Act:--

"that the marriage has not been oonsunnnated owing to the wilful refusal of the respondent to consummate it."

Of course, '"wi]ful refusa " connotes a settled and definite decision, come' to without just excuse3.

7.23..We are, however, of the opinion that this need not be a specific ground for divorce. Where such conduct amounts to cruelty, it can be dealt with under that head.

7.24. We have finished the grounds of ' divorce, Section and have now to deal with a point concerning relief. 1&§;W)_ We propose to recommend a general provision to the effect that where the relief desired is divorce the court may (except in certairrcases) grant judicial separation instead. The desirability of such a pro- vision can be established even under the present scheme, because, since the court has a discretion, or rather a duty, to refuse the desired relief in certain I. Morton Commission Report (Cmd. 9678), para. 89.

2. Matrimonial Causes Act, 1959 (Austin), section 28(0).

3. Horton V. Horton, (1947) 2 All E. R. 871, 874 (Lord Jowitt, L.C.).

72

circumstances,' .it should have the lesser power of granting the milder relief. It would be convenient iii the court is given a discretion not to dismiss the pre-- ceedings in row, but to grant a lesser relief instead. Since -we propose to recommend expansion of the grounds of divorce," and also propose to modify the requirement as to the period for which a particular ground of divorce should have been in existence," we think" it is necessary that some such power should he conferred on the court in express terms. cretion will be exercised where, in view of the special circumstances' of the case,_the court is of the opinion that in the interest of justice the marriage should not be "immediately" dissolved. We do not propose to confine this discretion only to cases where the grant of divorce is the alleged adultery of the responden1:. Guidance in the exercise of the discretion could, of course, be drawn from the decisions relating to exer- cise of the discretion of the court where adultery is a ground of divorce.

7.25. The new section could be inserted as section 13A, on the following lines, in the Hindu Marriage Act:--

"13A. In any proceeding on a petition for a decree of divorce, except where the petition is founded on the ground' mentioned in clause (ii), clause (vi) or clause (vii) of sub--section (1)' of section 13, the court may, if it considers it just to do so having regard to the circumstances of the case, pass instead a decree for judicial separa- tion."

1. Section 23(1). H-M-A»

2. See discussion as to section 13 H.M.A. and cruelty.

3, See, for example. recommendation as to section 13 and venereal disease. (Hindu Marrlage Act).

4. The references are to the existing clauses.

CHAPTER 3 Jurisdiction and procedure under the Hindu Marriage Act 8.1. We now proceed to consider several questions Int;-oduc. concerning jurisdiction and procedure under the Hindu tor!- Marriage Act} Section 19 of the Hindu Marriage Act is as follows:

"19. Every petition under this Act shall be C051?' *0 presented to the district court within the lfifm-filén local limits of whose ordinary original civil Sh°"1d jurisdiction the marriage was solemnized or be made' the husband and wife reside or last resided together."

8.2. We are of the view that this section is defeo- Defects tive in several respects. In the first place, it does not gieggfit take suificient account of cases where one of the Section. parties does not reside in India, or his whereabouts are unknown. The place of solernnisation of marriage or the last matrimonial home----two of the tests given ' in the section--may not turn out to be satisfactory, because both may have ceased to be of any impor- tance to the parties, in these days of mobility of popu- lation. The place where the parties are 130111 residing---which is the third test----is inapplicable on the facts. For such cases, a more satisfactory test should be devised.

Courts have found a way out. Reading sections 19 and 2.1 of the Hindu Marriage Act and sections 3 and 20 of the. Code of Civil Procedure together, the Court (it has been held) will be justified in holding that the provisions of the Code of Civil Procedure are also applicable' to application under the Hindu Marriage Act, and the Court within whose jurisdic-

.1. See also Chapter 2, for proposals of the Ministry of Law.

(a) Hariram Dhalumai Karamchandam' v. Jason', A.I.R. 1963 Born. 176.

(b) M. Gomathi v. S. Natarajan. (1973) 1 M.L.J. 246. 7 3 74 tion the defendant is residing will have jurisdiction. However, it is desirable to make the section corn- prehensive.

8.3. In the second place. the word "together" is to be read only with the words "1ast resided", and that should be made clear. There are also a few other points, which we shall explain in due course?

8.4. We are, therefore, recommending a redraftg of the section. The following explanatory comments may be useful for understanding the salient points of the revised section.

The following comments explain each head of jurisdiction under the new section:

Clause (a)----See s. 19, H. M. A. and s. 31(1) S. M. A.

Clause (b)---This head of jurisdiction is not found (in that form)_ either in the Hindu Marriage Act or in the Special Marriage Act. It follows the princi- ple behind section ZO of the Code of Civil Procedure, 1908, under which (inter alia), the defendant's residence confers jurisdiction on the court. Section 29(1) of the Parsi Marriage and Divorce Act, 1936, may also be compared.' The defen- dant cannot have any ground of coin- plaint by reason of this head of jurisdiction. It will be more rational than the present head of jurisdiction relating to the place where "the husband and the wife" reside. There is no reason why the law should insist that both parties should reside at the venue.

1. Para 8.5, infi-:1.

2. Para 8.4, inf}-a.

3. Para 8.9. infra.

75

8.5. It may be noted that the words "togetlicr" (in section 3, Divorce Act),1 do not go with the words . "husband and wife reside", and the same would be the position under the Hindu Marriage Act. Hence, the present formula cannot be supported, even on the basis of matrimonial home also.

An illustration will help to explain the matter:

Where "the marriage was solemnised Within the jurisdiction of court 'A', and the parties last resided together in the jurisdiction of court 'B', but the husband now resides in the jurisdiction of court 'C' and the wife now resides in the jurisdiction of court 'D', the case would not be satisfactorily covered by the existing provision in the Special Marriage Act or the Hindu Marriage Act, which drives the parties to court A or court 13 Such a case will be covered by proposed clause (b), which authorises the filing of a petition in the court within whose juris- diction the respondent is residing. In the absence of such a provision, the parties (in the above illustration) have to go either to court A or B---even though neitherof the parties is staying there now.

8.6. Clause (c)---This isgfound in section 19 of the Hindu Marriage Act and section 31(1) of the Special Marriage Act.

,Wherc the husband and wife are residing in the some place at the time of presentation of the petition, clause (b) will apply.

8.7 and 8.8. Clause (d)----While Clause (9.) to (to above will meet normal situations, there may be situa- tions which are not covered by them.

Clause (:1) takes care of one ofthem, and is new. It is found (in a difierent form} in the Parsi Marriage Act? .

1. See A.I.R. 1949 All 421 (reviews case law).

2. Section 29(3), Parsi Marriage and Divorce Act, 1936 7 M of Lawf74-6.

'76 §<';<I=%1'}i1t-ion 8.9. In the light of the above discussion, we recom- to amend mend that section 19 of. the Hindu Marriage Act Secliim 19' should be revised as fo]loWs:--

Revised section 19, H. M. A.

"Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil juriscTlic- tion----

(a) the marriage was solcmnized, or

(b) the respondent is residing at the time of the presentation of the petition, or

(c). theparties to the marriage last resided to~ gether, or

(d) the petitioner is residing at the time of the Dresentatian of the petition, provided the respondent is, at that time, residing out- side India, or has not been {ward 'of for seven years by those who would naturally have heard of him if he were alive."

Section zoul 8.10. Section 20(1) of the Hindu Marriage Act provides as follows:--

"Z0. (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 and shall also state that there is no collusion between the petitioner and the other party to the marriage." .

As regards the "statement" required under the latter half, decrees of nullity should be excluded} We re- commend accordingly.

5 . 8.11. and 8.12. In order to avoid multiplicity of 891101].

21A (New). proceedings and inconvenience to parties, and also to enable one court in one proceeding to go into the

1. See discussion as to s. 23 H.M.A.

77

entire marital life of the parties, we rccornniend the insertion of the following new section in the ii-Iindu Marriage Act.

Section 21A, (New) "Where-

(a) a petition under this Act has been presen- ted to the district court having jurisdic- tion by a party to a marriage praying for a decree for judicial separation or for divorce on any of the grounds specified in sub--section (1) of section 10 or section 13, as the case may be, and

(b) thereafter, another petition under this Act praying for a decree for judicial separa- tion or of divorce has been presented by the other party to the marriage on any ground, _whether in the same district court or in a different district court, in the same State or a diflerent State.

then, subject to the provisions of sub-section {2} ,--

(i) if 'the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(ii) if the petitions are presented to different district courts, both the petitions shall be tried and heard together by the district court in which the petition praying for a decree 'for judicial separation or of divorce was presented earlier; and, for this purpose, the court competent under the Code of Civil procedure, 1908, to transfer, to the district court in which the petitio-n presented earlier is pending, the petition presented later, shall exercise its power so to transfer the petition."

8.13. The need for amending the Hindu Marriage Section Act and eliminating unnecessary and long 'waiting 213 (N°"'-' periods laid down in respect of judicial separation and

- Recon:-_ lnendation.

78

subsequent divorce has been emphasised by a Member of Parliament, who has stated1-- ' "I know personally many young men and women, specially women, whose lives have been ruined because of the law's proverbially long delays."

8.14. Similar views have been expressed in sugges- tions made by-private individuals.

8.15. We are of the view that in order to expedite the proceedings, the following provisions are required (compare the provision in the election law)? '

(i) A petition should be disposed of within six months of service of notice.

(ii) An appeal should be disposed "of within, three months of service of notice.

8.16. The following new section is, accordingly, recommended for insertion in the Hindu Marriage Act:-- ' "21B. (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, he continued from day'to day until its conclusion, unless the Court finds the adjournment of the trial beyond the follow- ing day to be necessary for reasons to be recorded.

Every such petition shall be tried as ex- peditiously as possible, and endeavour shall be made to conclude the trial within six months from the date on which notice of the petition is served.

Every appeal under this Act shall be heard as expeditiously as possible, andrendeavour shall be made to conclude the hearing with- in three months from the date on which notice of the appeal is served.

- (e) (3) Euggestion dated 19th December, 1970 from--Syhri Madhu Limaye, M.P.--Legislative Department file No. 14(4)68-Leg. 2.

2. of. section 86(6) and (7), Representation of the People Act 1951.

79

8.16A. There is one other matter in respect of Swfifln which a provision can be usefully borrowed from the 2,312,, D,,c,,_ election law. The Representation of the Peop'le Actrmgntarr has the following provison1 as to documentary evi- e""""")' rlence:~-- -

"93. Notwithstanding anything in any enactment ' to the contrary, no document shall be in- admissible in evidence at the triai of an election petition on the ground that it is not duly stamped or registered."

Since, in matrimonial proceedings, the court is re quired to play a role dlfierent from that in the trial of an -ordinary civil suit, such a provision would be use- ful in the Hindu Marriage Act; it would facilitate subs- tantial justice being' done between the parties by ascertainment of the truth.

8.16B. We, therefore, recommend that the follow- Reqcfifin-_ ing new section should be inserted in the Hindu "M1 anon' Marriage Act:

"2113. Notwithstanding anything in any enact- Documen- ment to the contrary, no document shall be 'é'g;£j"' inadmissible in evidence at the trial of a petition under this Act on the ground that it is not duly stamped or register ."

3.17. We now note a suggestion made to us to Irliunetion insert a new provision empowering the court to issue ']?:,%§";';"" an injunction to prevent therernoval of a child pend- of child. ing disposal of the petition. In England, at any time after filing a petition for divorce, and notwithstanding that" the petition has not been served, the petitioner may apply ex parts to a Judge for an injunction res- training the respondent or any other person from

1. Section 93, Representation of the People Act, 195].

2. See para 1.21, Supra.

Ln] . Divgiree Rules -. Rule 55; Rayden on Divorce (1967) page T60 .

Suggestion-

not accept-

ed. _ Section 22 Recom-

mendation.

80

removingany child of the family (1) out of the juris- diction of the court, or (ii) out of the custody, care or control of any person named in the application'.

8.18. The application is to be made in open court. If an injunction is issued, restraining any person from removing a child out of the jurisdiction of the court, notice should be given to the Passport Oflfice that a passport should not, without leave of the court, be issued in respect of that child".

Some such provision, it was suggested, would be useful in our Act.

8.19. We have considered the matter, but do not see the need for a specific provision. We would leave this matter to the inherent powers of the Court. We think that Court has an inherent power to pass such order. ' 3.20. Holding proceedings in camera and publica- tion of such proceedings are matters governed by section 22. We think that the holding of proceed- ings in camera should be obligatory in all matrimonial cases, whether or not the parties so desire or the court thinks it fit.

We are also of the view that the publication of such proceedings should be prohibited, and permission for publication should be granted only in respect of judgment of High Courts.

8.21. We, therefore, recommend that section 22 should be revised as follows:

"22. (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 "I. (:1) Frrbbri V. Fabbrf, (I962) 1 All ER. 35; (1962) '1 W'.L.R. 13;

(b) Rm-nH.'_}= V. Rom:'JI_r. (1962) Times. May 3(i1h;_f0r later ' proceedings, see {I962} Times. July 31st: (l9'64) Probate 22; (1963) 3 W.L.R. 732; Raydcn on Divorce(1967) page 707.

2. Practice Note (1963) 3 All °'(i (Direction No. 24).

.31 _"proceeding, except a judgement of the High 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."

8.21A. We have already recommended that' an Section express exception removing the bar under section 23(U(fl) 23(1) (a) of the Hindu Marriage Act, should be made where a marriage is sough.'.r to be avoided on the ground of unsoundness of mind.

8.22. Section 23(1) (c) of the Hindu Marriage Act provides that the court shall decree relief under the Act only if it is satisfied that "the petition is not presented or prosecuted in collusion with the respon-- dent." It is diflicult to understand the applicability of this provision in relation to a proceeding for setting aside a void marriage under section. 11, under which a marriage can be set aside on the ground of polygamy, prohibited degrees, or sapinda relationship. No matrimonial offence is involved here, and the only questions of fact to be decided are questions concern» ing the subsistence of a prior marriage or the existence: of the prohibited relationship. At the most, it can be said that parties who wish to avoid their marriage may invent some set of facts to mislead the court that such prior marriage or prohibited relationship existed. This is very unlikely. On the other hand. where the parties discover that they are related within the pro- hibited dcgrees, they would often like to act in co- operation with each other. rather than in opposition to each other. It may be noted that in England", it was expressly provided that "collusion shall not be a bar \to the granting of a decree of nullity whether the marriage took place, or the proceedings were instituted, before or after the commencement of this Act."

l. Para 3.15 Supra.

2_ Section 6(l), Nullity of Marriage Act, 197]. (Eng).

Section 23(2)---

Recom-

rnendation.

Section 23(3) (new).

82

We area}? the View that a similar provision (as: to nullity') should be incorporated, and recommend that section 23(1) should be amended accordingly.

8.23. Under section 23(2), before proceeding to grant any relief under this Act, it is the duty of the court to make every endeavour to bring about recon- ciliation, in every case where it is possible to do so "consistently with the nature and circumstances of the case." From the words which we have quoted, it would appear that where relief is applied for on the ground of conduct not dependent on fault but on some other factor which is constituted by a disease or similar cir- cumstance, an attempt at reconciliation would not be obligatory. We think that it would be appropriate to make this explicit, and, with this object, we would like to exclude, from the mandatory provision in sec- tion 23(2), cases where judicial separation or divorce is applied for on the grounds mentioned in section 13(1), clauses (ii) to (vii) of the Act. We recom-

mend accordingly.

8.24. While section 23. subsection ('2). imposes a duty on the court to eifect reconciliation, it is silent about the machinery for doing so. It is desirable that for the purpose of aiding the court in bringing about such reconciliation, the court, (_ if it thinks it just) should have power to refer the matter to any person (named by the parties in this behalf or nominated by the court, if the parties fail to name any person). Such person could report to the court as to whether a re- conciliation can be, and has been, efiected.

The following sub--section should be added in sec- tion 23 to achieve this object :

"(3) For the purpose of aiding the court in bring- ing 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 proceeding for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or toany person nominated by lIi'1E' court if the parties fail to name any person, 83 with directions to report to the court as to whether a reconciliationcan be and has been, effected, and the court shall, in dis- posing' of the proceeding, have due regard to the report."

s.25. Section 25(1) of the Hindu Marriage Act ggftifn reads thus :

"25. (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, while the applicant remains zmnmrried, pay to the applicant for her or his mainte- nance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, hav- ing regard to the respondent's own income and other property, if any, the income and other property of the applicant and the con- duct of the parties, 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."

8.26. This sub--section raises several questions. In .the first place, the condition that the applicant must "remain unmarried" is not intelligible in the case of a decree of judicial separation or a decree of restitu- tion, because the parties to such 'a decree remain "married". i The Special Marriage Act has a provision for main- tenancel, but it does not contain the above condition.

8.27. The above condition should, therefore be $2:-;:'l':'t'ion removed from sub-section (1') of section 25. The to,-emu", court has to revoke the order on re--marriage9 under ::}:n°19c1'g¢;iI'd_ section 25(3), and that is enough. ing rem,"-.

_ ri-age.

1. Section 37(1), S.M.A.

2. Sec para 8.29, .e'n_,'I'a.

Recom-

mendatien to add "circum-

stances"

in ection 25(1).

34

8.28. We also recommend that the word "eircum- stances" should be added in sub--section (1), of sec- tion 25 where it enumerates the considerations to be borne in mi.nd while deciding alimony. The considera- tions to which the court is to have regard (as at pre-- sent enumerated) are pecuniary (income and pro- perty) or moral (conduct), but there may be other circumstances, e.g., the health of the party applying for maintenance, or his or her age. This is, perhaps. implicit. but can be made explicit by amending sec tion 25(1).

8.29. There are two circumstances in which a court is bound to rescind its order for permanent alimony and maintenance -under sub--section (3) of section 25. The first is where the party in whose favour the order is passed remarries, and the second is, where the party does not remain chaste. The first case presents no difiiculty, but the second case does. The difliculty arises in this way. Unchastitv leads to cancellation of the order, if the unchastity is subsequent to the dec- ree. Therefore, unchastity before the decree has, in some cases', been construed as disentitling the wife to any maintenance under section 25. Thus, indirectly, the mandatory provision as to subsequent unchastity refiects on maintenance to a party being allowed at all, where the party had been unchaste before the decree.

8.30. Now, it may be noted that such a harsh view is consistent neither with modern attitudes, nor with ancient doctrine"-'. The Divorce Act" contains no such limitation.

8.31. A decision of the Court of Appeal in Eng- 1and--Ciear v. Clear4,--is sometimes cited to support the View that an adulterous wife is denied mainte- nance. That decision, however, takes no such extreme

1. Rtg,r'utri2ptiIca.-7 v. Rajamma, (1966) _I--Cei;ala Law Times 891,' A.l.R. 1967 Ker 181 (\/aidyalingam .l'.), cited with agreement in Sm'dc.rr Ltd v. Vr'.s'l1anr'. A.I.R. 1970 J. & K. I50.

. For the Hindu Law, see Amar Karim v. Sqivna, l9fi0 Cal. 438.

. Section 37, Indian Divorce Act, 1869.

4. ('1'-"(tr v. ("!:'rr" (T958) 2 All. E. R. 353. 357. 3S8(C. A.).

IQ A.I.R.

{Jul 85 view. In fact, the discussion in the judgment makes it very clear that, (i) the matter is within the discre- tion of the Court: (ii) the discretion is exercised on a variety of factors; and (iii) the conduct of the parties is one of them. The case law referred to in that very judgment brings out the Wide discretion of the court.

8.32. Subsequent English cases do not take a sub- stantially dilferent viewl. In Iversi0n'_s' casc3, Lately J". made it abundantly clear. He said :--«--

"In practice, a wifc's adultery may or may not disqualify her from succeeding in her application tor maintenance and may or may not reduce the amount allotted. At one end of the scale her adultery may in- deed disqualify her altogether. It may do so, for example, where it broke up the marriage, where it IS continuing and where she is being supported by her paramour. At the other end of the scale. her adultery will not disqualify her and may have little. if any, in- fluence on the amount. Where (as in this case) a wife, after doing all she can to persuade her deserting hus-- band to return to her and their children, in her lone- liness lapses and commits two isolated acts of adul- tery, I cannot believe that Parliament intended the court in weighing 'the conduct of the parties' to ad- juclge that such a wife should receive no rriaintenancc: or indeed that her maintenance should be reduced sub-- stantially, if at all. I know of no support for such a proposition in the reported cases."

In Spence v. Spenceii, a contention that by her sub- sequent adultery the wife forfeited right to mainte- nance was rejected.

1. (21) Ive'r.m.*z V. Iv:-rsron, (1966) 1 All l~'..R. 253; (1966) 2 W.L.R. H68, 1171]} (Latey .l.);

(b) Com'mey V. C0m'teny, (1966) I All ER. 53; U966) 2 VV.L.R. 524;

(C) ."Ui'{:'er v. MW/er, (l96l) Probate l; (1960) 3 All ER. 1 l 5;

(cl) .-'l4'edi1'c0tr V. .Med1'fcotf, (1962) I All ER. 449; (I962) l W.L.R. 136. CA. (Adultery by wife af1er.dccree_}; (cl M.V.M., (1962) 2 All ER. 895; (1962) l W.I..R. 845.' I-'. l'nvet:.mr: V. [11ver.5'rm, (1966) l All ER. 258.

3. Spe.r1cev.Spmce, v. (1964) 3 All ER. 61.

Recom-

mendation.

regarding section 25(3).

Section 27A (New)-

Property presented by parents of other party.

86

8.33. Apart from this, it appears to us that the ends of justice would be sufliciently met if the court is given a discretion, instead of being burdened with a duty, to cancel the order for maintenance in case of subsequent unchastity; and we recommend that sub- section (3) of section 25 should be amended on the above lines. It may be noted that such an amendment will override the view taken by some of the High Courts' that a woman once divorced on the ground of proved unchastity should be "left to the resources of her own immorality and should be refused the lawful means of support by passing a decree for maintenance in her favour."

8.34. It has been stated' that blackmail often plays its ugly part in litigation for matrimonial relief. It has been suggested that if it is laid down that what-- ever is given by the wife's parents to the parties should go to the wife, and vice versa, it will put an end of blackmail in many cases.

Apart from this aspect of blackmail, it appears to us that where the marriage comes to an end (or other relief is granted under the Act) shortly after the solemnization of the marriage, justice requires that the court should have power to direct return of the pro- perty presented by the wife's parents to the husband or by the husband's parents to the wife.

Broadly stated, our proposal. therefore, is this. If the proceeding under this Act is instituted within six months of the solemnization of the marriage, the court should have power, if it considers it necessary to do so in the circumstances of the case, to make such provision in the decree as it deems just and pro- per with respect to any property presented at or about the time of marriage to either party by the parent of the other party-

1. Sardai-i La: v. Vi'sh_am', A.I.R. 1970 Jammu & Kashmir I50, 152, agreeing with Saclrindra v. Baaidniali, A.l.R.. 1960 Cal. 438. -

2. Suggestion of Shri Vayallar Diary No. D. 1547/73-Leg.

Ravi, M.P., in Legis. Depit.

11 dated 20-10-73.

87

For this purpose, "parent" will include a person standing in the relationship of a parent, where the parents are dead or out of India. "Property" 'should not' include articles which the court regards as of trifling value.

8.35. We, therefore, recommend that the follows-Reconb ing section should be inserted in the Hindu Marriage Act, for this purpose:--

"27A. In any proceeding under this Act insti- tuted within six months of the solemnization of the marriage, the court may, if it considers it necessary to do so in the circumstances of the case, 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 to either party by a parent of the other party.

Explcmation.--In this section,--

(i) "parent" includes anperson standing in the relationship of parent, where the parents are dead or out of India ;

(ii) ,"property" does not include a.1'ticics which the court" regards as of trifling value."

8.36. Under section 28, so far as is material, "all Section decrees and orders made by the Court in any proceecl- 2g_ ings _under this Act. may be appealed from under any law for the time being in force :

Provided that there shall be no appeal on the sub- ject of cost only."

A controversy arose in the past with reference to this part of the section, the question being whether this section itself confers a right of appeal, or whether the reference to "any law for the time being in force" implies that a right of appeal must be sought in some other law. As the language of the section is not very clear on this point, and has been criticised judiciallyt

1. For an analysis of ord ,1, rs see para.S,38, infr a.

mendation.

A nalysls of orders.

88

the matter requires examination. Almost all High Courts now take the View that the right is conferred by section 28. The case law on the subject is review- ed- exhaustively in the Andhra Pradesh Full Bench decision1 and in a recent Bombay casez.

8-37. It would appear that most of the remedies conferred by the Hindu Marriage Act (to be pursued by a petition) being of a special character, it would be meaningless to expect that the right of appeal in relation to orders under the Act would be available in any other law. The Code of Civil Proccdurcii could not have anticipated the subsequent passage of the Hindu Marriage Act. The narrower view would make it dilficult to apply section 28. Similar language is used in the Indian Divorce Act', and the uniform in- terpretation on that section is that Act itself creates the right of appeal5. The Special Marriage Act", uses also similar- language, and does not seem to have been interpreted diflerently from the provision in the Divorce Act. -

At the same time, it appears to us that an omnibus right of appeal against orders is not necessary. and is likely to delay the proceedings. Generally speaking. an appeal against orders of an interim nature should be excluded.

8.38. It may be noted that the Court is empowered to pass orders under the following sections of the Hindu Marriage Act, 1955:--

Nature of order Section 32 (1) Order to hold proceedings in camera and crder with regard _to printing or publishing of such proceeding.

24. Maintenance order p€JId('?'l'tt' lite and expenses of proceedings.

1. Ifurumbrao Vs. Sesharamamambn, A.I.R. 1967, Andhra Pra- desh 323, 328 (Full Bench).

. Madhukm" V ilfalhi (April 1973) 75 Born. L. R. 3ll (l).B.) . Section 104 and Order 43, C.P.C.

. Section 55, Indian Divorce Act, 1969.

. A. V. B. (1898) I.L.R. 22 Bombay 612.

.Section 39, Special Marriage Act, 1954.

O\U1.hbJ[\J 89 25 (1) Order for permanent a.limony"a.nd mainte- nance at the time of the passing of' any decree or subsequent thereto.

25 (2) Verification, modification, or rescission of any order made under sub-section (I).

25 (3) Rescission of the order in certain circuntstances.

26 (E) Im?era'm order with respect to the custody, maintenance and education of ITllfl01' children ;

(ii) provision in the decree itself for such matters ;

(iii) the court may also revoke, 5t|\'|)€!'Id or vary any such orders and provisions pre- viously made.

As can be seen from the above, the Court can pass-orders which are either of a permanent or interim nature.

8.39. Our proposal is that with respect of interim orders under this Act, there should be no appeal. Interim orders are only "for a period of time and could, if necessary, be reviewed by the Court. Such appeals usually lead to delay. In other words, appeals should he only in respect of decrees and orders: of a permanent nature.

Therefore, the appeal should (so far as orders are concerned) be restricted to :--

(i)c orders under section 25.

(ii) orders under section 26 which are perma- nent and not interim. ' 8.40. In order to expedite the disposal of the litiga- tion, we also recommend that the period of limitation for appeals under the Act should be 30 days-

R.41. Section 28 should, in so far as it relates to Recom-_ appeal, be revised' as under, in the light of the above m°nda"°n' discussion :--

"28(1). All decrees made by the court in any proceeding under this Act shall. subject to

1. Execution should be dealt with in a separate section.

90

the provisions of sub--section (3) , 'be appeal- able as decrees of the court made in the exercise of its original civil jurisdiction, and 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 proceed- ing under this Act under section 25 or sec- tion 26 shall, subject to the provisions of ' sub-section (3) be appealable if they are not inmrim orders, and 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.

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

(4) Every appeal under this section shall be in- stituted Within a period of thirty days from the date of the decree or order".

Section 28A should be inserted as follows to deal with the enforcement of decrees and orders:~--

"28A. 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 are enforced".

CHAPTER 9 Special Marriage Act.

9.1. In this Chapter, we shall deal with the amend- Introduc- ments required in the provisions of the Specia.It°r5" Marriage Act, 1954, in addition to those already dealtl with in connection with the proposals of the Ministry of Law. ' The Special Marriage Act, 1954, occupies a signi- ficant place in Indian statute law. While introducing the Bill in the Lok Sabha. the then Law Minister. 'Shri C. C. Biswas, stated :--.

"It is an attempt to lay down a uniform territorial law for the whole of Indiaz."

From this point of view, the Act is of considerable legal interest.

9.1A. The amendments which we are going to propose in this Chapter, broadly speaking, fall into one or the other of the following categories :--

(a) amendments needed in order «to introduce uniformity where necessary and reasonable between the provisions of the two Acts covering'the same points. (either as they exist at present, or as they are proposed to be amended) ;

(b) amendments needed by way of additional provisions similar to the additional provi- sions proposed to be inserted in the Hindu Marriage Act;

(e) amendments needed in other provisions of the Act on the merits3.

1. Chapter 2, supra. _

2. Lok Sabha Debates (1954), Vol. 5, Part9II, C01. 7797.

3. For example, sections 19 to 21, Special Marriage Act.

91

7 M of Law/'74--7 Section 19.

Special Marriage Act.

92

In so far as the Special Marriage Act deals with the ceremonies of marriage and connected matters, the provisions----as the very title of the Act indicates-----are of a specialised character, and the question of bring- ing uniformity between the two Acts does not, in general, arise. Nor have any suggestions been made for amending those provisions on the merits. We have, therefore, to concentrate on provisions connected with the special consequences of the marriage and matrimonial relief.

9.1B. Section 4 of the Special Marriage Act lays down the Section 4B, conditions for solemnizing: a marriage under the Act. One of the conditions, as stated in clause (b), is that "neither party is an idiot or lunatic at the time of the marriage." We have. while discussing the corresponding provision of the Hindu Marriage Act, recommended a re-drafti. and we recommend that section 4(1)) of the Special Mara riage Act should also be revised on the same lines.

, 9.2. Section 19 of the.SpeciaI Marriage Act. is as follows :--

"The marriage solemnized under this Act of any Inember of an undivided family who pro- fesses the Hindu, Buddhist, Sikh or Jain rcIi-- gion shall be deemed to etfect his severance from such family." ' This section corresponds to section 22 of the Spe- cial Marriage Act, 1872, which was inserted in 1923. and its principal object is to replace co-parcenary rights and other rights concerning the Hindu undividet-I family by a position under which the person marrying: will become a divided co--parcener. The section creates a statutory severance of a person married under this Act from the joint family of which he might have been till then a member. At the time when this sec- tion originally came on the statute hook (tie. in 1923) special marriages were rare, and the prejudice against them supplied some cause for visiting such marriages

1. See reconnnendation as to section 5(ii), H.M.A.

93

with the compulsory consequence of severance from the family. It appears that in the discussion on the 1923 Amendment to the Special Marriage Act, 1872 (then in force), this section occupied a prominent piace. Dr. Gour {who had sponsored the amendment Act) says' :~ "The orthodox members of the Select Committee had proposed this clause as a deterrent against persons resorting to such marriages. But the present writer accepted it as a happy release from a' continued union in which embarrassing situation might be created by the orthodox members of his family, contest- ing his right in his property by survivor-ship or inheritance, in which cast: the misfortunes of the widows married under the amended Act and their children would be aggravated because of the persons marrying under the amended Act having to declare that they professed the Hindu religion, and . since the teat loci is construed by the Privv Council in a limited sense as noted under that Act, a Hindu marrying under the Act does not stand to gain by continuing to re- main a member of the co--parcenarj,*. But so far as his own rights are concerned, he remains entitled to all those rights of inherit- ance to his other relations, near and remote as if he had never married under the Act."

9.3. We have also taken note of the discussion Discussion relating to the Bill which led to the present Act. The-"'_| 1113 Joint Committee, in their report, note as follows as regards the provisions of this section'-' :------

"Clause 19 {old citms.e_ 18} .~--The Joint Com:n:ut-- tee gave very anxious consideration to this clause as that had been made the subject of attack in many of the opinions received on the ground that it penalises marriages I. Gout', Hindu Code (1938), page 1199.

2. Joint Committee Report [on the Bill which led to the Act, of I954), cited in Chandhri Special Marriage act, page 65.

No dcterent regards.

Scheme pro-

posed as regards section 19.-

94

under this law. After careful consideration the Joint Committee have decided to retain this clause in its original form, particularly because it has the desirable efiect of simpli- fying the law of succession. Were the clause to be omitted, the share of the joint family property of a person marrying under this law will necessarily have to devolve on the survivors, which would mean that the daugh- ters will be left out of account. Moreover, one of the chief reasons why persons marry under this law is that in case of intestate succession, the Succession Act will apply and it would be extremely inconvenient to have diiferent laws of succession applicable to different types of property. Severance from the joint family does not, of course, prevent the parties from reuniting if they so desire."

9.4. We have carefully considered the matter, and we think that no "deterrent" is required against special marriages. A provision of the nature contained in section 19 -is certainly not required where both the parties are Hindus, Buddhists, Sikhs or Jains.

So far as the desire to protect the a position of daughters is concerned, the passing of the Hindu Succession Act removes the difliculty, because they are given the right to succeed under that Act, and, where a female is alive', property does not pass by survivor- ship, but it passes by succession. Secondly, so far as the desire to maintain one system of succession for all properties is concerned, we are not disturbing that principle, as we propose to exclude", from section 21, Special Marriage Act, marriages where both the parties are Hindus.

9.5.l The scheme which we have in mind is, in other words, this--

are Hindus, marriage

(i) Where the persons marrying Buddhists, Sikhs or Jains, the u

1. Section 6, Hindu -Succession Act, 1956.

2. Para 9.11, infra.

95

"should. in no case, result inla severance of status. The law otherwise applicable---i.e. the Hindu law----wi]l continue to apply, both as regards undivided property and as regards divided property.

(ii) Where. of the persons marrying, only one---- the male coparcener------is a Hindu. and the other spouse is a non--Hindu, the Indian Suc- cession Act will continue to apply and there will be severance also.

We are also aware that besidesthe two situations mentioned above, there is a third situation, where neither party is a Hindu. This could arise if the person marrying :'.e. a Hindu Coparccner, has chang- ed his religion before marriage. In such a situation, , section 19 does not, by its terms, apply. His "pre- marriage" conversion may, of course, result in sever-- ance, apart from the statutory provision in section 19.

It may be noted that the embracing of Christianity by a person effected a division of status. This was the decision of - the Privy Council in Abralmm v. Abraham'. Here, section 19 is not of any relevance.

We are accordingly proposing a new section'-' to override section 19 in cases where both the parties are Hindus-

9.7. Section 20 of the Special Marriage Act rurisgggggi' 20 as follows :-- - Marriage Act.

"20. Subject to the provisions of section 19, any perso-n whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as 'a person to whom the Caste Disabilities Removal Act, 1850, applies."

}._Abmham v. Abraham, (1861-1363) 9 M.l.A. 1195; 1 W.R__ 1:2 S31'. 10:! Suther 50l§(P.C.).

2. See section 21A proposed. in para 9.12, r'nfr:1 Efiect of conversion on proprie-

tary rights.

96

9.8. It may be stated that the Caste Disabilities etc. Act, 1850 (referred- to in section 20), protects those persons who----

(a) have renounced a religion ; or

(b) have been excluded from the communion of any religion ; or

(e) have been deprived of castel.

As regards these three categories of persons, the Act provides that "so much of any law or usage. . . . . . . . . . . . . . . . . .as inflicts on any person forfeiture of rights or propcrty2, or may be held in any way to impair or afiect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of, any religion, or being de- prived of caste, shall cease to be enforced" in any court of law.

9.9. But for the Act of 1850, conversion would affect rights to property. In a very early Madras C8563, for example, the plaintiff had renounced his religion in the year 1839, and his mother sold a pro- perty in the year 1846; it was held that the plaintiif, having lost his rights by his conversion, could not sue to set aside the sale. (The 1850 Act, not having retrospective effect, was inapplicable)'.

The Act of 1850 abrogates the rule by which an apostate (or a person deprived of caste) lost certain right:-'.5--". The Act applies only to protect the actual person, and not his children?

For histroy of the I850 Act. see Ke;_';i'._i.i'r_iilriaant'cAv. Mam' Rum Kolera, (1873) 19 Suthcrn 1 and Weekly Reports 367.. 378, 400.

2. There is some controversy as to whether the correct text is "rights of property" or "rights or property".

3. Case No. 99 of 1858 reported in Rulings of the Court 0!' Sudder Udalut, 1858 to 1362 (August), (Madras) at page 94 referred to in Rang-arintho Malian: V. Karhyayarz (I965), Kerala L.J. 73. 75.

4. Cf. Ranbir v. Jogirzder. A.I.R. I9-1'0, All. 134, V140

5. Hhmrtrmra V. Tirrramzuc/ml (1377) "I. L.R. I Bom. 559.

6. For previous Regulations see Nmw-oz Ah" v. Aziz Bibi (1876) 11 Punj. Record, Civil Judgment No. I24, pages 233, 255, 264, 265.

7. Mifar Sen v. Mukbul Hassm, A.l.R. 1930 P. C. 251, 57 [A 313 (P.C.) (Lord Atkin).

,4.

97

Theresult of reading section 20 of the Special Marriage Act, 1954 with the Caste Disabilities Remo- val Act, 1850 is that a person does not, by reason of his marriage under the Special Marriage Act, torfeit his existing interest in the joint fainily property. or lose the right of inheritance to other members of the family, Whether such right arises before or after the marriage. But, the operation of section 19, (previ- ously section 22) of the Special Marriage Act must be borne in mind. By virtue of that section, the right of survivorship is completely extinguished, and there is a compulsory severance from the other mem- bers. Even under the Special Marriage Act of 1872, it was helcll that~--st1rviv0rship is not saved by the Act of 1850, or by the Special Marriage Act. This is now more clear, because section 20 is made subject to section 19 (It was not so in the 1872 Act}.

9.10. This discussion becomes necessary because we Recom:

have to consider the question whether the amendment ""'"d'm°"' which we recommend in section 19" (so as to restrict its scope) necessitates any change in section 20. We have come to the conclusion that this in itself neces- sitates no such change. Section 20 is subject to the provisions of section 19, that position will con- tinue. Where section 19 as modified applies, there will still he a severance of status; and that special consequence of the marriage will override section 2-0. But so much of section 20 as creates a disability should be excluded where both are Hindus. In such cases, there is no justification for creating any disability. We recommend accordingly?

9.11. Under section 21 of the Special Marriage Act Special (so far as is material), succession to the property of marriage-

the parties marrying under the Act and to the property of the issue of such marriage shall be regulated by the Indian Succession Act, 1925, notwithstanding that under that Act (:19. under the Succession Act), there 1- (33 G'irdn:ur:':'o! Fakiwit-fiend, AJLR. I955 Madhya Bharat 143, 153, para 12.

(b) Snbbziyya V. Rm1gr:e_va, A.I.R. 1923" Mad. 833, para 12.

2. See recommendation as to section 19.

3. See section 21A (proposed), para 9.12, infra.

98

are certain restrictions with respect to its application to members of certain communities. This section, of course, does not alter the general family structure between the person marrying under the Act and his soul. It may, incidentally, be noted that when a person is converted, succession to him is governed by the law applicable in his religion".

In our opinion, it is desirable to exclude from the scope of this section cases where both the parties are Hindus. In such cases, the law of succession otherwise applicable should continue to apply. We see no reason why the fact that the parties choose to marry under the Special Marriage Act should malre a difference in such cases tie. where both are Hindus. We recom.n1e1'1d3 that such cases should be excluded from section 21.

Rficom: 9.12. In the light of the above discussion', we mend"-"'11 recommend that section 21A should be inserted in f ' . t-- . . .

'iI,;,"§§§t;.,., the Special Marriage Act as follows :-- _ 21A.

"21A. Where the marriage is solcrnnised under this Act of any person who professes the Hindu. Buddhist, Sikh or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion, sections 19 and 21 shall not apply and so much of _section_1ZO as creates a disability shall also not apply."

Section 22, 9.13. Section 22 of the Special Marriage Act deals gggiflffgge with the restitution of conjugal rights. Withdrawal Act. . from society without reasonable excuse furnishes the §i1§:'3'_'t"' cause of action for claiming this relief. We are of the View that it would be made clear that the burden of proving reasonable excuse should be on the oppo- site party". We recommend that section 22 should be amended accordingly.

1. Sriclhuran iv. c..r.T. A.l.R. 1970 Mad. 292, 294; (l9'lDJ 2 M.L.J. 334.

. .Mi't'tar Sen V. Maqbul Hasrm, A.l.R. P930, P. C. 25L . See section ZIA, S.M.A. (proposed).

. Section 12, Hindu Adoptions and Maintenance Act, 1956-. . C'.f. recommendation as to section 9, l-l.M.A.

UI-ht-II')

-deals with adultery as a ground of divorce, -

99

9.14. Section 24(1) of the Special Marriage Act Section relates to proceedings for obtaining a decree of nullity Spiigial of marriage tion. that the petition can only be filed by a party to' Also, should the marriage. This- should be mentioned'. it should be provided? that both the parties be alive when the petition is filed.

9.15, Section 27( 1) (a) of the Special Marriage Act This ground should be re--formulate-:1 on the ljnes3 of the corresponding ground as proposed in the Marriage Act.

9.16. Under section 27(1) (b) of the Special Mar- riage Act, desertion is a ground of divorce. requirement has been thus stated :--

"(b) [the respondent] has deserted the petitioner without cause for a period of at least three years immediately preceding the presenta- tion of the petition ;"

We are of the view that the period should be two years----the period which we have recommended in relation to the corresponding provision in the Hindu Marriage Act', and we are also of the view that the definition of "desertion" should be adopted from the Hindu Marriage Act'. .

Accordingly, we recommend that section 27(1) (b) a should be revised so as to read---

"(b) has deserted the petitioner for a period of not less than two years immediately pre- ceding the presentation of the petiiion".

1. Cf. section 11, H.M.A-

2. C._;'', recommendation as to section ll,]M.l-Ur.

3. See recormnendation as to section l3[l)('i}. Hindu lvlarriage Act; Para 7, 52, sagpra.

4. ('J recommendation as to section 13, Hindu Marriage Act, with reference to desertion.

5. Section 10(1) Explanation, I-[.l\/LA.

It does not contain an express limita- Marriage , (2 Section 27( 1 J (3) .

Special Marriage Hindu Act Section The 2'J'(l)(b) S.M.A.

100

And the following Explanation should be inserted. at the end of section 27 :----

"Explanation.---In this section, the expression "desertion" means the desertion of the peti-- tioner 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 peti- tioner by the other party to the marriage. and its grammatical variations and cognate expressions shall be construed accordingly."

Sect_ion_ 9.17. Under section 27(1) (c) of the Special Mar- 27("i°3- riage Act, it is a ground ofdivorcc that the respon- dent--- - ' "f c) is undergoing a sentence of irnprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act 45 of 1860) ; ' Provided that divorce shall not be granted on this ground, unless the respondent has prior to the presentation of the petition undergone at least three years' imprisonment out of the said period of seven years".

Imprisonment -as a ground of divorce has a history. ' From the Byzantine civil law, the Church1 accepted certain grounds of divorce (high treason. disappear- ance or descrtion. and supervening impotence}, and rejected insanity, leprosy, long imprisonment", and incompatibility. This ground has found a place in the Parsi Marriage and Divorce Acti.

We are _of the View that the proviso to the clause, under which the respondent must have undergone at least three years imprisonment. is uncalled for. The proviso gives some time for reflection, but we think that that should he left to the parties. In our view,

1. etter written by Amhhishoo Germanos and printed as An: pcndix ll to_The Church and ls-'larriage (1935). pp. 551?] as cited in Putting Asnnder (London, S.P.C.K. 1966) page 82.

2. Emphasis supplied. '

3. Section 32f_F_J, Parsi Marriage & Divorce Act, 1936.

101

the proviso unreasonably delays institution of proceed- ings, in a case where, if the innocent party has at all any cause for seeking divorce, the waiting period serves not much useful purpose. Cases where the sentence is set aside or reduced (on appeal or otherwise) do not also justify a statutory waiting period. In prac~ tice,'it is unlikely that the aggrieved party will rush to court when an appeal is pending. The proviso should, therefore, be deleted.

9.18. One of the grounds of divorce mentioned in section section 27 of the Special Marriage Act is respondent has "since the solemnization of the mar- riage treated the petitioner with cruelty." This is in clause (d).- M -

In conformity with our recommendation as to the corresponding provision in Hindu Marriage Act, we recommend that the words "since the sulemnization of the marriage" should be deleted, as unnecessaiyl.

that the 31(1)")-

9.18A. Under dection 27(1)(e) of the Special SEC"-ion Marriage Act, a petition for divorce can be filed on the ground that the respondent "has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presen- tation of the petition." In conformity with the change which we have recommended? in the corresponding provision in the Hindu Marriage Act, the minimum period for which the insanity should have continued should be removed. The clause should, therefore, read------

. . 0 .

''(e) is incurabiy of unsound mind".

9.19- Section 27(1) (f) of the Special Marriage Act allows a petition for divorce to be presented on the ground that the petitioner has, for a period of not less than three years immediately preceding the pre- sentation of the petition, been suffering from venereal disease in a communicable form, the disease not hav- ing been contracted from the petitioner. In conformity

1. Cf. discussion as to section 10 and section 2.13, Hindu Marri- age Act, with reference to cruelty and insanity.

2. See discussion as to section I3, }i.M.A.

27(1)(e).

Section 27(1) (f).

Section 27(1)(gJ.

Section 21, Recom-

mendation.

to and new ground.

Section (New).

102

with our recommendation as to the corresponding prc-~ visioni, in the Hindu Marriage Act, we recommend that from section 27(l)(f) of the Special Marriage Act, (i) the period should be removed, and (ii) the requirement that the disease should not have been contracted from the petitioner, should also be removed.

9.20. Under section 27(1)(g) of the Speci.aI Mar- riage Act ieprosy is a ground of divorce if the respon- dent "has for a period of not less than three years immediately preceding the presentation of the petition has been sufiering from leprosy, the disease not having been contracted from the petitioner.

In conformity'with our recommendation as to'-' the corresponding provision in the Hindu Marriage Act, we recommend that the period should be removed. The clause should. therefore, be revised so as to read as follows:---

"has been sufiering from leprosy, the disease not having been contracted from the peti- tioner; or"

9.21. Non-resumption of cohabitation after an order for maintenance should be added as a ground for divorce (by the wife) in section 27 of the Special Marriage Act, on the lines of the corresponding pro« vision recommendedi' in the Hindu Marriage Act. We recommend accordingly.

9.22. On the lines of the new section which we propose in the Hindu Marriage Act', a. new section should be inserted _as follows, in the Special Marriage Act also:--

"in any proceeding on a petition for a decree of,divorce except where the petition is found on the ground mentioned in clause 1 "See discussion as to section 13, Hindu Marriage Act, with' re- ference to venereal disease.

2. See recommendation as to section 13, Hindu Marriage act, with reference to leprosy.

3. cf. discussion as to section 13(2), Hindu Marriage Act.

4. cf. section 13A, proposed to be inserted in Hindu Marriage Act.

103

"(h) of sub-section (1) of section 27, the 'Court, may, if it considers it just to do so having regard to the circumstances of the case, pass instead a decree for judicial separation."

9.23. Section 29 of the Special Marriage Act, (re- Section lating to the remarriage of divorced persons) should 19, be deleted, as wehavc already1 recommended.

9.24. Section 30 of the Special Marriage Act deals Section with remarriage after divorce. As already recorn- 3" mended,' in this section the period of one vear should be deleted.

9.25. Section 31(1) of the Special Marriage Act Section deals with venue, and should be revised on the lines 31(13- of the corresponding provision3 in the Hindu Marri- age Act, as proposed to be revised.

9.26. Section 33 of the Special Marriage Act re- _ hates to proceedings being held in camera. It should §§'_:m" be brought into line with the corresponding provision in the Hindu Marriage Act, as amended in accord-

ance with our recommendations' 9.26A. Section 34(l)(b} of the Special Marriage sgcfion Act refers to 'adultery'. As we have recommended 34(1)('3L a re-formulation of this ground of r.tivorce,5 the rele-- ' vant words in section 34(1)(b} should also be suit- ably amended. ' 9.27. Section 34(2) of the Special Marriage Act, section dealing with reconciliation, should be brought i.t1to 349} and line with the recommendation made by us as to the §'ifg';'_1 corresponding provision" in the Hindu Marriage Act. Also, anew sub--section should be inserted. to em- power the court to seek the help of a third party in . Para 2,46{d).

. Para 2.-'-16(e).

. See recommendation as to section 19, I-I.M.A.

. See recommendation as to section 22, H.M.A.

. See recommendation as to section 27(1}(a), S.M.A., Para 9.15, supra.

6, ice recommendation as to section 23(2), Hindu Marriage ct.

moun-

Section

35. ' Section 37(3).

Section 39.

stitute a discretion in case ' ed.' 104 its endeavour at reconciliation, on the lines of the new snlrsection, proposed' in the corresponding pro- vision in the Hindu Marriage Act.

9.28. Section 35 of the Special Marriage Act (rer lief to the respondent), should be re-drafted on the lines of the new provision? on the same subject which we have recommended in the Hindu Marriage Act.

9.29. Section 37(3) of the Special Marriage Act provides as follows:~--~' "{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 shall rescind the order."

This sub--section should be revised so as to sub- of unchastity. In this connection. our recommendation as to the corres- ponding provision3 in the Hindu Marriage Act may be seen.

In section 37(1) "circumstances" should bc.add--

9.30. Section 39. of the Special Marriage Act. reads:------ i "All decrees and orders made by the court in any proceeding under Chapter V or Chap- ter VI shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil iuris-- diction are enforced and may be appealed from under the law for the time being in- force:

Provided that every such appeal shall be insti-

tuted within a period of ninety days from the date of the decree or order."

1. See recommendation as to section 23(3)(New}, HiT.1u--tT&arri- age Act.

. Section 23A, I-I.M.A. (proposed).

3. ice recommendation as to section 25(3), Hindu Marriage ct.

4. cf. section 25(1), Hindu Marriage Act as proposed.

10

of the Hindu Marriage Act.

105

This provision is in Pan' ntateria with section 28 The words in the Hindu Marriage Act are "may be appealed from under any law for the time being inforce". In the Special Marriage Act, the word used is 'the' instead of 'any'. But there is no substantial difference in -the language of. the two provisions} ' Under the Hindu Marriage Act", an appeal lies against an interim order passed under section 24 of .

the Act, and similarly, it has been held3 that an ap- peal Iies against an interim order under section 36, Special Marriage Act. The language of the sec1:ion is, thus, defective, inasmuch the same controversy could arise under this section as has arisen under the corresponding section in the Hindu Marriage Act. It should, therefore, be revised on the lines of the sec- tion in the Hindu Marriage Act, as proposed to be amended'.

9.31. .The section in the Special .Marriage Act does not exclude appeal on the point of costs.--a limita- tion which is found in the Hindu Marriage Act". and which should be incorporated in the Special Marriage Act also.

9.32. The section in the Special Marriage Act has a proviso laying down a period of limitation of ninety days. This should be reduced to 30 days"-

9.33. We, therefore, recommend that section 39 of the Special Marriage Act should, in so far as; it relates to appeal, be revised as fo1lows:----

"39(1)7 All decrees made by the court in any proceeding under this Act shall subject to . See Maharaj Singh V. Uma Sfrrgrh, A.l.R. 1169 All. 603, 604 . Smr. Sarla Dew' v. Sn' Balwtm Singh, A.l.R. 1969 All 601. . Mahamj Sing}: V. Uma Singh, A.I.R. 1969 ZA1l. 603, 634-. See discussion as to section 23, Hindu Marriage Act.

. Section 23, H.M..A..

. See discussion as to section 28, Hindu Marriage Act.

. Execution should be dealt with in separate section.

-lG'\|.n'«hua|\_)---

Recom-

rnendation.

Section 40A ( new) Special Marriage Act.

Section

-40B (new) Special Marriage Act.

106

the provisionsuof sub--section (3), be ap- pealable as decrees of the court made in the exercise of its original civil jurisdiction, and such appeal shall lie to the court to which appeals ordinarily lie from the deci- sions- of the court given in the exercise of its original civil jurisdiction.

"(2) Orders made by the court in any proceed- ing under this Act under section 37 or section 38 shall, subject to the provisions of subsection (2), be appealable if they are not interim orders, and such, appeal shall lie to the court to which appeals ordi- narily lie from the decisions of the court given in the exercise of its original civil ' jurisdiction.

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

(4) Every appeal under this section shall he in- stituted within a period of thirty days from the date of the decree or order."

9.34. A new section to the effect that petitions bet- ween same parties shall be tried together should be inserted in the Special Marriage Act, on the lines of the corresponding provisionsl recommended in the Hindu Marriage Act. ' ' 9.35. On the lines of our recommendation as to Hindu Marriage Act a new section should be inserted in the Special Marriage Act to provide that--

(i) petitions under the Act should be disposed of within 6 months, and

(ii) appeals should be disposed of within 13 months on the lines of the corresponding provisions proposed to be inserted in the Hindu Marriage Act?

1. cf. section 21A, H.M.A. (proposed). --~

2. See section 2128, proposed to be inserted in the Hindu Marri- age Act.

107

9.36. A new section as to documentary evidence Suction should be inserted in the Special Marriage Act. on (Dow, the lines of the corresponding provision proposed in gentry' the Hindu Marriage Act'.

I. cl. section 2|-C. I-l.M.A. (as proposed). I5 -I M of l.J & CAINDFW.

Section 5(iii) and 5(vi), H.M.A.

Section 9(2).

H.M.A.

Section 10(1 ) (C1) , H.M.A.

(Judicial separa-

tion--

venereal disease) .

CHAPTER 10 SUMMARY OF RECOMMENDATIONS AND CONCLUSIONS Our recorrtmendations and conclusions marised below:---

I-IINDU MARRIAGE ACT, 1955 BIB SUI11"

Section 5(ii), H.M.A. relating to lunacy or idiocy at the time of marriage, should be amplified and re-- vised as recommendedl.

The suggestion made with reference to section 5(iii) and 5(vi) of the Hindu Marriage Act that the breach of the condition as to minimum age under the Hindu Marriage Act should render the marriage voidable, is not accepted".

With reference to section 9(1), Hindu Marriage Act the burden of proof of reasonable excuse for the withdrawal of society should be on the respondent to a petition for restitution of conjugal right:-13.

Section 9(2), Hindu Marriage Act which restricts: the defences to a petition for rcstitution of conjugal rights, should be deleted'.

Cruelty simpiiciter should be a ground for judicial separation, under the Hindu Marriage Act". section Hindu See below, under Marriage Act.

13(.i.)(V),

1. Para 3.19.

2. Para 3.23.

3. Para 4.12.

4. Para4.9

5. Para 2.2.

108 109

Section 10(1) should be revised, so as to refer section to section l3(1)1. 10(1)"

(i) The proposal to remove the words "on the gs.-union 11, petition of either party" from section 11, H-M-A Hindu Marriage Act, is not approved?

(ii) It may be expressly provided that after the death of a party, a petition under section 11, Hindu Marriage Act, cannot be filed3.

The condition as to imoptenee in section 12(1) fgfiljitfila)

(a) of the Hindu Marriage Act, should be re-drafted, H'M.A' ' so as to lay down that the marriage has not been consummated owing to the impotence of the res» pOI'!dC11t'1.

In place of the word "fraud" in section 12(1)(c), f§CCti0n Hindu Marriage Act, the words "or by fraud as to ' the nature of the ceremony or as to any material fact or circumstance concerning the respondent", should be substituted".

The suggestion that pre-marital pregnancy should section be made a ground of divorce by the innocent wife of l2(1)(d). the guilty husband who had intercourse {leading to H'M'A' such pregnancy) with another woman, is not accep- ted".

In section 12(2) (b)(iii), of the Hindu Marriage mien Act, for the words--- (i._2f§2)(b)

1.!I , I-ff.M.A.

"the ground of the decree" the words "said ground" may be suhstituled"'.

I

2. Para 2.7.

3. Para 6.2.

4. Para 6.3.

*1. Para 6.20.

6. Para 6.7'.

7. Para 2.7A.

7 M ofLaw/74---9 Section 13(_1}(iJ.

H.M.Ai Section 13 lliliiii, H.M.A.

(Unsound-

ness of mind as a ground of divorce}.

Section 13 (1 ) (V):

}-LM.A.

{VEnereal disease as a ground of divorce).

Section 13(1).

H.M.A.

Section 13(1), H.M.A.

110

Section 13(1) (1), Hindu Marriage Act (living in adultery as a ground of divorce} should be revised so as to read as foll_ows:----

"(ii has, after the solcmnization of the marri- age, had voluntary sexual intercourse with any person other than his or her spouse".

The ininimum period of three years, imposed on the right t.o seek divorce, should be done away with- in section I3 (l)(iii), Hindu Nlarriagh Act'-'.

The proposal to add at restriction that the venereal disease was not contracted from the petitioner, is not accepted. in section lDt'1)Ifd) ----(Judicial separa- tioni also. this restriction should be removctl".

The fact that the respondent has treated the peti- tioner with cruelty should be a ground for divorce, in the Hindu Marriage Act'.

(i) In section 13(1). Hindu Marriage Act a new clause should be added as fo!lows:------

"has deserted the petitioner for a period not less than two years immediately preceding the presentation or" the petition, or"

(ii) The following Explanation should be inserted at the end of section 13(1) of the Hindu Marriage Act.

"ExpJumzri0n.--]n this section, the expression "desertion" means the desertion of the peti- tioner 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 peti- tioner hy the other party to the marriage, Para 7. I2.

Para 7. T3.

Para 2. 1 Para 2.] .+=:~--2~=.-'Q ':15?

111

"and its gramatical variatunn: and cognate expressions shall be construed accord- ingly".

The suggestion to add. as a ground of divorce under the Hindu Marriage Act, wilful refusal to con- summate a marriage, is not accepted?

In section I3(1A), Hindu Marriage Act, the period should be reduced from two years to one H.M.A.' year".

In section 13(2), Hindu Marriage Act, provision Section for divorce at the instance of the wife after obtaining a decree or order for maintenance should be inserted on the lines recommended'.

A new section should be inserted in the Hindu iifiion Marriage Act to empower the court, in any proceed- H.hrf.A. ing on a petition for a decree of divorce, to pass in- stead a decree for judicial separation; in certain cases".

Section 14, Hindu Marriage Act should be deIet-- Section 14, Cd" H.M.A.

' (Bar against divorce within fir,-st' three years of mar-

riage).

The proviso to s. 15, Hindu Marriage Act should Section 15, be déieted7.. 5}-§;'§;;;;_ [ion against.

re-marriage Within one year).

1. Para 7'. I6.

2. Para 7.22 and 7.23.

3. Para 2. I8.

4. Pam 2.29.

5. Para 7.24 and 7.25.

6. Para 2.3]

7. Para 2.32.

Section 16, H.1\Il.A.

(Legiti-

macy of children ) .

Section

19. H.M.A.

Section-

21A (New) H.M.A.

112

Section 16, Hindu Marriage Act, may be re-cast as recommended-1.

Section 19, Hindu Marriage Act should be revised as t11itier:--

"Every petition under this Act shall be presen- ted to the district court within the local limits of whose ordinary original civil juris- diction--

(a) the marriage was solemnized, or

(b) the respondent is residing at the time of the presentation of the petition, or

(c) the parties to the marriage last resided together, or

(d) the petitioner is residing at the time of the presentation of the petition, provided the respondent is. at that time, residing outside India, or has not been heard of for seven years by those who would naturally have heard of him, if he were Til') alive"-.

In order to avoid multiplicity of proceedings and inconvenience to parties, and also to enable one court in one proceeding to go into the entire marital life of the parties, the insertion of the following new section in the Hindu Marriage Act is recommended".

Section 21A (New) Where---

(a) a petition under this Act has been presented to the district court having jurisdiction by a party to a marriage praying for a decree for judicial separa- tion or of divorce on any of the grounds specified in sub-section (1) of section 10 or suh~section (1) of .suctio11 13, as the case may be, and i I)

(b) thereafter, praying for a decree 113 another petition under this Act for judicial separation or of divorce has been presented by 'the other party to the marriage on any ground, whether in the same dis- trict court or in a difierent district court in the same or a different State. then subject to the provisions of sub-section (2).,----

(E) if the petitions

(ii) The following new section should be inserted are presented to the I same district court, both the petitions shall be tried and heard together by that district court;

if the petitions are presented to different district courts, both the petitions shall be tried and heard together by the district

- court in which the petition praying for a decree for judicial separation or of divorce was presented earlier; and, for this purpose, the court competent under the Code of Civil Procedure, 1903, to transfer to the district court in which the petition presen- ted earlier is pending, the petition presen- ted later, shall exercise its power so to transfer the petition".

in the Hindu Marriage Act:

"2lB (1). The trial of a petition under the Act (2) 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 ad- journment of the trial beyond the follow- ing day to' be necessary for reasons to be recorded.

Every such petition shall be tried as expe- ditiously as possible and endeavour shall be made to conclude the trial 'within six months from the date on which the notice of the petition is served on the respondent.

Section 21]}, H.M.A.

I N ew).

Section 21-C, I-I.M.A.

(New) Suggestion as to' power to issue in-

junction.

Section 22, H.M.A.

Section 23(1) (3):

H.M.A.

114

' (3) Every appeal under this Act shall be heard as expeditiously as possible, and en eavour shall be made to conclude'the hearing with- in three months from the date on which the notice" of the appeal is served on the respondent."

The following new section should be inserted in the Hindu Marriage Act":

"21C. Notwithstanding anything in any enact- ment to the contrary, no document shall be inadmissible in evidence at the trial of a petition under this Act on the ground that it is not duly stamped or registered".

The suggestion to insert a new section authorising the court to issue an injunction to prevent the re- moval of a child from India is not accepted.-"

Section 22 of the Hindu Marriage Act should be revised as fo1lows:--

"22. (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 judgement of the High Court printed or published with the pre- vious 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 thou- sand rupees."

In regard to s. 23(1)(a), Hindu Marriage Act, an 'express exception removing the bar under s. 23-

(1)(a) should be made where a marriage is sought to be avoided on the ground of unsoundncss of mind.5 I. Para 8.16. '

2. Pa!'a.8.l6B.

3. Para 8.19.

4. Para 8.21.

5. Para 3.15 and 8.21A.

115

In regard to s. 23(1)(c), Hindu Marriage Act, Section collusion should not be a bar in a petitions for nullity under the Hindu Marriage Act.' From the mandatory provision, (for reconciliation) Section in section 23(2), Hindu Marriage Act cases where judicial separation or divorce is applied for on the ' ' ' grounds mentioned in section 13(1), clauses (ii) to

(vii) of the Act, should be excluded."

A sub-section should be added in section 213, Section Hindu Marriage Act' empowering the court to seek the help of a third party in its endeavours at reconu:i- H.M.A.

-liationfi Provision for counter claim should be inserted in ggction

--the Hindu Marriage Act, as recommended} (N($))'_ I-I.M.A.

Section 25 (1)-----The condition about the party re- Section rnaining unmarried is inappropriate in regard to pro- 25(1), and ceedings for judicial separation and restitution. It §I(5[')A should be totally removed.' ' " ' ' The Word "circumstances" should be added."

Section 25(3)--A discretion to the court should be substituted in place of the present duty to cancel the order of maintenance in case of subsequent un-

.chastity.7 ' The following new section should be inserted in S°°"°" _ _ 27A, the Hindu Marriage Act!' (Ncw)_ H.M.A.

"27A. In any proceeding under this Act, insti- tuted within six months of the so1emniza- tion of the marriage, the court may, if it . Para 8.22.

. Para 8.23.

. Para 8..-7.4.

. Para 3.45.

. Para 8.27.

Para 8.28.

. Para 8.33.

. Para 8.35.

5I-:_ouLn.L*.u'N--

Section 28, H.M.A.

116

considers it necessary to do so in the circumstances of the case, make such pro- vision in the decree as it deems just and proper with respect to any property pre- sented at or about the time of marriage to either party by a parent of the other party.

Explanation.--In this scction,--

(i) "parent" includes a person standing in the relationship of a parent, where the parents are dead or out of India;

(ii) "property" does not include articles which the court regards as of trifling value.

Section 28 of the Hindu Marriage Act should, in "so far as it relates to appeal, be revised' as under, in the light of the above discussion2:---

"28. (1) All decrees made by the court in any pro- ceeding under this Act shall, subject to the provisions of sub--section (3), be appealable as decrees of the ' court made in the exercise of its original civil juris-

diction, and 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 proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (2), be appeal- able if they not interim orders, and 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.

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

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

1. Execution shouldbcdealt with in separate section.

2. Para 8.41.

ll"! Section 28A should be inserted as follows in the ggcatliou Hindu Marriage Act to deal with the enforcement of H_M_A_ decrees and orders'.

23A. "ZSA. All decrees and orders made by the court in any proceeding under this Act shall be en- forced in the"1ike manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced."

SPECIAL MARRIAGE ACT, 1954 The definition of "district court" in the Special Section Marriage Act may be revised on the lines of the cor« responding definition in the Hindu Marriage Act".

Section 4-113) er the Special Marriage Act should 39013011 be revised on the same lines as s. 6 (ii), Hindu Mar- 5_M,},__._ riage Anti'- {flag 01' As to sections 19, 20 and 21, S.M.A. an exception 3. 19:0 21, should be made by inserting 3. 21A as recommended, Sfigiélfi to exclude marriages where both parties are Hindus (New).

-etc". -

The burden of proving reasonable excuse for un'th-- gefilgn 32= drawal from society should be on the respondent to ' ' ' a petition for restitution under section 22, Special Marriage Act'.

Section 24(1) of the Special Marriage Act, which re1ates___to proceedings for obtaining a decree of nullity _g'M_A: 'in respect of void marriages, should be confined to cases where either party makes such a petition, and both are living".

Section 26, Special Marriage Act (Legitimacy of Section 26, children) should be revised on the lines of the cor- S-'-"'I-A responding sectio1:i----section 16, Hindu Marriage Act,-----as recommended to be revised in this Report'.

Pam 8.4].

. Pave. 2.461(3) . Para 9.lB.

Para 9.2 to 912.

. Para 9.13.

. P2i:a9.l4.

. Para 2.46 lb].

-ldxcn'-|'~wt~' _-i .,=.«rrV '4 """

Section 27(1) (a).

S.M.A.

(adultery).

Section _ z7(1)<b), s.1a.A~.

118

The clause regarding adultery as a ground of divorce--section '27(1)(a)-----shou1d be re--t'ormulated in terms of the clause regarding adultery in section 13(1) of the Hindu Marriage Act, as recommended to be revisedi.

In regard to desertion as a ground of divorce under the S.M.A., the period should be reduced from 3 (Desertion) years to 2 years, and "desertion" should be defined Section 27( 1) (C) .

S.M.A.

Section 2'/(1)(d).

S.M.A.

Section 27(1 ) (e).

S.M.A.-

Section 27(1)(fJ S.M.A.----

(Leprosy).

Section

27. S.M.A.

(New ground to be added).

as in s. 10(1) Explanation, Hindu Marriage Act'-'.

The proviso to s. 27(1) (c), Special Marriage Act, requiring that imprisonment for at least 3 years should have been undergone, should be deleteda.

The words "since the solernnization of the marriage" should befiremoved from s. 27(1) (d), Special Marri- age Act which deals with cruelty as a ground of di- vorce'.

In section) 27(1) (e) of the Special Marriage Act,' the requirement of minimum period for which the- unsoundness of mind should' have lasted, should be deleted".

In section 27(1) (f), Special Marriage Act, the period should be removed, as also the requirement that the disease should not have been contracted from- the petitioner".

The period should be removed from s. 27(1) (g}- of the Special Marriage Act?

Non-resumption of cohabitation after a decree or an order for separate maintena.nce- should be added as a ground of divorce in the Special Marriage Act.

. Para 9.1513.

. Para 9.16.

. Para 9.17.

. Para 9.18.

. Pa1'a9.I8A.

. Para 9.19 .

. Para 9.20.

-.-o.-.n:=.,,.,\,_.

119

on the lines s. 13(2), Hindu Marriage Actasrecorn- mended to be revised in this Report. The ground should be available only to the wifei.

A new section should be inserted in the Special 39,350" Marriage Act for empowering the Court to grant sepa- s,M_A_ ". ration in place of divorce in certain cases, on the (NW)- lines of the new section to be added in Hindu Marriage Act on the subject".

Section 29, Special Marriage Act corresponding to section section 14, Hindu Marriage Act should be deleted'*. 2(?,I.f;'${,'i';"' tion against . divorce.

within 3 years) In section 30 of the Special Marriage Act the period Eefiitin '30 of one year for re-marriage after divorce, correspond- ' " ' ing to the period in section 15, proviso, Hindu Mar- riage Act, should be removed'.

Section 31, Special" Marriage Act (venue) should Section 31. be revised on the lines of revised 5. 19. Hindu Mar- S'M'A' riage Act'''.

Section 33, Special Marriage Act should be revised Section 33, on the lines of section 22, Hindu Marriage Act, as 3;I::-"3'-';;3d_ proposed to be revised". ings in camera).

In section 34-(1)(b), Special Marriage Act the swmm word 'adultery' should be replaced by suitable words 34(J1')A(b),\ referring to that ground as recommended to be re-- ' formulate-d7. .

Section 34(2), Special Marriage Act should be Section 34. amended and a new sub-section should be inserted, ":'i,g,'f:,','1ci_ on the lines of the amendment proposed in section liation).

. Para 9.21 and 2.46 (C).

. Para 9.22.

. Para 9.23 and 2.46 (d).

. Para 9.23, 9.24 and 2.46. (e) . Para 9.25.

. Para 9.26.

. Para 9.26A.

~.1ou-.».a'.ur.an-

Section 35, S.M.A.

Section 37, S.M.A.

Section 39, S.M.A.

Section 40A S.M.A.

(New).

Section 40B S.M.A.

(New).

Section 40C.

S M.A.

_ (New).

120

23(2), ii-Iindu Marriage Act and the new sub-section proposed to be inserted in section 23, Hindu Mar- riage Act, respectively':

Section 35 of the Special Marriage Act should be revised on.the lines of the new section as to counter claim, proposed to be inserted in the Hindu Marriage Act2.

Section 37, Special Marriage Act should be revised on the lines of the amendments proposed in section 25, Hindu Marriage Act3.

(i) Section 39, Special Marriage Act should be revised on the lines of section 28, Hindu Marriage Act as proposed be revised.

(ii) Appeal on costs should be disallowed.

(iii) Limitation for appeal should be 30 days'.

A neW_section should be inserted in the Special Marriag Act so that petitions between same parties shall be tried together, on the lines of section 21A, Hindu Marriage Act, as proposed".

A newpsection should be inserted in the Special Marriage Act be pr'ovide as follows" :--

(i) Petitions should be disposed of within 6 months of service of notice.

(ii) Appeals should be disposed of within 3 months of service of notice. See section 21B, Hindu Marriage Act as proposed.

A new section as to documentary evidence should be inserted in the Special Marriage Act to the effect that admissibility of documents shall not be affected . Para 9.27.

- . Para 9.28.

Para 9.29.

. Para 9.33.

. Para 9.34.

. Para 9.35.

auA_r..au.--.

u 121 by absence of stamp or registration. This will be on the lines of the corresponding provision to be in-

-serted in the Hindu Marriage Actl.

We would like to place on record our warm appre-

-ciation of the valuable assistance we have received from Mr. Bakshi, Member-Secretary of the Commis- sion in the preparation of this Report.

B K S. Dhavan ' P M Dated : New Delhi ' the 6th March, 1974.

. . . . . . .. Chairman . . . . . . . . Member . . . . . . . . Member . . . . . . . . ?\/{ember . . . . . . . . Member-Secietary.

1. Para 9. 36.

APPENDIX----1 LETTER FROM THE MINISTER OF LAW, JUSTICE AND COMPANY AFFAIRS D.O. No_. F. 14(4)/:68-Leg. II New Delhi-110001. ' January 17, 1974.

My dear Chairman, Various suggestions for amending the Hindu Mar- riage Act, 1955 and the Special Marriage Act, 1954 were received in the past from some Members of Par- liament and the general public. Those suggestions were examined and a draft Bill was prepared incor- porating some of the main amendments proposed to the Hindu Marriage Act and the Special Marriage Act. A copy of the draft Bill is enclosed.

2. The amendments proposed in the draft Bill mainly seek to liberalise the divorce provisions so as to reduce the period 'of waiting for divorce after a decree of judicial separation or restitution of conjugal rights and to eliminate the period of restriction for remarriage after divorce. On the basis of the obser- vations made by the Madras High Court in its two judgments, Lakshmi Ammal vs. Ramaswamy Naicker, ' A.I.R. 1960 Madras 6 and Gown' Ammal vs. Thulasi Ammal A.I.R. 1962 Madras 510, suitable amendments have also been proposed in sections 11 and 16 of the Hindu Marriage Act and in the corresponding provi- sion in the Special Marriage Act, 1954.

3. A proposal for making suitable provision in law to provide relief to parties under an obligation to give maintenance under Section 488 of the Criminal Pro- cedure Code was received from some Members of 122 V9 123 Parliament. Provision has been made in the draft Bill. to permit a right of divorce only to the wife against the erring husband. The Commission may, however, consider the question whether, in such circumstances, the husband against whom the order for separate main- tenance has been passed may also be given the right to petition for divorce, having regard to the fact that the parties are practically living apart. This sugges- tion has not beenincorporated in the Bill, but may be considered by the Commission.

4. As the matter is of suflicient importance, I feel the same may beexamined by the Law Commission. I shall be grateful if the matter is 'processed in the Commission on a priority basis and a report forwar- ded to the Government at an early date.

5. The relevant files of the Ministry are being sent separately to the Commission.

With warm personal regards.

Yours sincerely, Sd/- H. R. Gokhale Dr. P. B. Gajendragadkar, Chairman, -

Law Commission, New Delhi.

Encl : As above.

:Short title, Amend-

ment of section 10 of Act 25 of 1955.

Amend-

ment of

-section 11.

Amend-

ment of

-section 12.

Amend-

ment of section 13.

APPENDI X--2 BILL I-TORWALRDED BY THE MINISTRY OF LAW THE MARRIAGE Laws (AMENDMENT) BILL, 1974 A BILL further to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 'BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows :---- ,

1. This Act may be called the Marriage Law-Ms (Amendment) Bill, 1974.

2. In section 10 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Hindu Marriage Act), in sub--section (1), for clause (b), the following clause shall be substituted, namely :-----

"(b) has, after the solemnization of the mar- riage treated, the petitioner with cruelty; or".

3. In section 11 of the Hindu Marriage Act, the words "on a petition presented by either party there- to," shall be omitted.

4. In section 12 of the Hindu Marriage Act, in clause (b) of sub-section (2), in sub-clause (iii), for the words "the grounds for a decree", the words "the said ground" shall be substituted.

5. In section 13 of the Hindu Marriage Act,---

(a) in suh--section (1),--

(i) in clause (V), after the words "in a com- municable form", the words "the disease 124 125 . not having been contracted from the petitioner" shall be inserted;

(ii) in clause (vii), the word "or" shall be in- serted at the end;

(iii) after clause (vii), the following clause- shall be inserted. namely :--

"(viii) has, after the solemnization of the mar- riage, treated the petitioner with crueIty.";

on 1-

(1)) in sub--section (IA), in clause (i) and (ii) for the words "two"years". the words "one year" shall be substituted ;

(c) in subsection (2)_,-- '

(i) in clause (iii, the word "or" shall be in- serted at the end ;

(ii) after clause (ii), the following clause shall be inserted, namely :---

"(iii) that an order has been passed against thehusband by a Magistrate awarding separate maintenance to the petitioner, and the parties have not had marital inter- course for three years or more since such , orders."

6. In section 14 of the Hindu Marriage Act,---- Amend_ ment of " (a). for the words "three years have elapsed", Sficttiofl 14--

in both the places where they occur, the words "one year has elapsed" shall be sub-

'. stitutcd ;

(b) for the words "three years", wherever they occur, the words "one year" shall be sub- stituted.

7. In section 15 of the Hindu Marriage Act, the Amend- proviso shall be omitted. ;';::'ifE,§fl5l n";""\f' 'Legiti-

macy of children of void and voidable marriages.

Insertion of new section 23A.

Relief to respondent on peti-

tions for divorce.

126

8. For section 16 of the Hindu Marriage Act, the , following section shall be substituted, namely:--

16. (1) Where a marriage is null and void on any ground specified in section 11, any child of such marriage, whether born before or after the com- mencement of the Marriage Laws (Amendment) Bill, 1974, shall be treated as the legitimate child of his parents, whether" or not a decree of nullity is granted in respect of that marriage, if at the time of the act of intercourse resulting in the birth (or at the time of of the celebration of the marriage, if later) both or either of the parties reasonably beli- eved that the marriage was valid.

(2) When: a decree of nullity is granted in respect of a voidable marriage under section 12, any child be- gotten 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 this section shall be construed as conferring upon any child of a marriage which is void or which is annulled by a decree of nullity under section 12, any rights in or to the pro- perty 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".

9. After section 23 of the Hindu Marriage Act, the following section shall be inserted, nameIy:--

23A. If in any proceeding for divorce under this Act, the respondent opposes the relief sought on the ground of the petitioner's adultery, cruelty or de- sertion, the Court may give to the res- pondent the same relief to which he or she would have been entitled if he or she had presented a petition seeking such relic .".

I27

10. In the Special. Marriage Act, if-354 (hereinafter referred to as the Special marriage Act} in section 12, for clause (e), the following clause shall be substitut- ed, name1y:--- l '(e) "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 res- pect of the matters dealt with in this Act;'.

0

11. For section 26 of the Special Marriage Act, the following section shall be substituted, namely:--

"26. (1) Where a marriage is null and void on any ground specified in section 24, any child of such 'marriage, whether born before or after the com- mencement of the Marriage Laws (Amendment) Act. 1947, shall' be treated as the legitimate child of his parents, whether or not a decree of nullity is granted in respect of that marriage, if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage, if later) both or either parties reasonably believed that the marriage was valid.

(2) Where a decree of nullity is granted in res- pect 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 had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in this section shall be construed as conferring upon any child of a marriage which is void or which is annulled by a decree of nullity under section 25 any rights in or to the pro- perty of any person other than the parents in any case i where. but for the passing of this Act, such child Amend-

ment of section2 of Act 43 of 1954.

Substitu-

tion of new section for section 26.

'Legiti-

macy of children of void and voidable marriages.

Amend-

ment of section 27.

Amend-

ment of section 29.

Amend-

ment of seetion 30.

I28 would have been incapable of possessing or acquiring any such rights by reason of his not being the legiti-- mate child of his parents".

'HA. In section 27 of the Special Marriage Act,--

(a) in sub--section (1), the words "and by the- wife on the ground that her husband has, since the solernnisation of the marriage, been guilty of rape, sodomy or bestiality" shall' be omitted;

(b) after sub-section (2), the following sub---

section shall be inserted, nar;iely:--

"(3) A wife may also present a petition for divorce to the district court on the gt'Our1Cl--

(i) that the husband has', since the sole-- mnisation of the marriage, been guilty of rape, sodomy or bestiality; or ( ii) that an order has been passed against the husband by a magistrate awarding sepa- rate maintcnance to the petitioner, and" the parties have not had marital inter- course for three years or more since such- order.".

12. In section 29 of the Special Marriage Act,--

(a) for the words "three years have passed", in both the places where they occur, the words ."one year has elapsed" shall be substituted;

(b) for the words "three years", wherever they' occur, the words "one year" shall be substi- tuted.

13. In section 30 of the Special Marriage Act, the- words "and one year had elapsed thereafter but not. sooner" shall be omitted.

MGIPRRND--7 M of Law/74--Sec. I N.S.---28-6-74--2,000