Hindu Marriage Act, 1955
Hindu Marriage Act,1955
[25 of 1955,dt. 18-5-1955]
An Act to amend and codify the
law relating to marriage among Hindu
Be it enacted by Parliament in
the Sixth Year of the Republic of India as follows:
TABLE OF CONTENTS
|
1 |
|
|
2 |
|
|
3 |
|
|
4 |
|
|
5 |
|
|
6 |
|
|
7 |
|
|
8 |
|
|
9 |
|
|
10 |
|
|
11 |
|
|
12 |
|
|
13 |
|
|
|
|
|
|
|
|
14 |
No petition for divorce
to be presented within one year of marriage |
|
15 |
|
|
16 |
|
|
17 |
|
|
18 |
Punishment
for contravention of certain other conditions for Hindu marriage |
|
19 |
|
|
20 |
|
|
21 |
|
|
|
|
|
|
(b) Special provision relating to trial and
disposal of petitions under the Act |
|
|
|
|
22 |
Proceedings
to be in camera and may not be printed or published |
|
23 |
|
|
24 |
|
|
25 |
|
|
26 |
|
|
27 |
|
|
29 |
|
|
28 |
|
|
|
|
|
29 |
|
|
30 |
|
Preliminary
(1) This Act may be called the Hindu Marriage Act, 1955.
(2)
It
extends to the whole of India except the State of Jammu and Kashmir, and
applies also to Hindus domiciled in the territories to which this Act extends
who are outside the said territories.
(1) This act applies
(a) to any person who is a Hindu by religion
in any of its forms or developments, including a Virashaiva a Lingayat or a
follower of the Brahmo, Prathana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or
Sikh by religion, and
(c) to any other person domiciled in the
territories to which this Act extends who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein it this Act had not been
passed.
Explanation: The following
persons are Hindus, Buddhist, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate,
both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion.
(b) any child legitimate or illegitimate, one
of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs; and
(c) any person who is a convert or re-convert
to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub
section (1), nothing contained in this Act shall apply to the members of any
Scheduled Tribe within the meaning of clause (25) of article 366 of the
Constitution unless Central Government, by notification in the Official
Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of
this Act shall be construed as if it included a person who, though not a Hindu
by religion, is nevertheless, a person to whom this Act applies by virtue of
the provisions contained in this section.
COMMENT
Where
one was initially a Hindu upon conversion to Islam, files a suit claiming
dissolution of marriage on the ground of his ceasing to be a Hindu, it was held
that the suit could not be maintained.-Zulfiquer Ali v. Anuradha 1985 (2) An.
LT 86.
In this Act, unless the context
otherwise requires,
(a) the expressions “custom” and “usage”
signify any rule which, having been
continuously and uniformly observed for
a long time, has obtained the force of law among Hindus in any local area,
tribe, community, group or family;
PROVIDED that the rule is
certain and not unreasonable or opposed to public policy;
PROVIDED FURTHER that in the
case of rule applicable only to a family
it has not been discontinued by the family;
(b) “district court” means, in any area 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 resect of the matters dealt with in this
Act.
(c) “full blood “and “half blood”- two persons
are said to be related to each other by full blood when they were descended
from a common ancestor by the same wife and by half blood when they are
descended from a common ancestor but by different wives ;
(d) “uterine blood” - two persons are said to
be related to each other by uterine blood when they are descended from a common
ancestor but by different husbands.
Explanation: In clauses (c) and
(d) "ancestor” includes the father and “ancestress” the mother ;
(e) “prescribed” means prescribed by rules made under this Act;
(f) (i) “sapinda
relationship” with reference to any person extends as far as the third generation (inclusive) in the
line of ascent through the mother, and the fifth (inclusive) in the line of
ascent through the father, the line being traced upwards in each case from the
person concerned, who is to be counted as the first generation.
(ii) two persons are said to be “sapindas” of
each other if one is a lineal ascendant of the other within the limits of
sapinda relationship, or if they have a common lineal ascendant who is within
the limits of sapinda relationship with reference to each of them;
(g) “degrees of prohibited relationship” - two
persons are said to be within the “degrees of prohibited relationship” -
(i) if one is lineal ascendant of the other;
or
(ii) if one was the wife or husband of a
lineal ascendant or descendant of the other; or
(iii) if
one was the wife of the brother or of the father’s or mother's brother or of
the grandfather’s or grandmother’s brother of the other; or
(iv) if the
two are brother and sister, uncle and niece, aunt and nephew or children
of brother and sister or of two brother or of two sister;
Explanation- For the purposes
of clauses (f) and (g), relationship includes:-
(i) relationship by half or uterine blood as
well as by full blood;
(ii) illegitimate blood relationship as well
as legitimate ;
(iii)
relationship
by adoption as well as by blood ;
and all terms of
relationship in those clauses shall be constructed accordingly
COMMENTS
Section
3(b): It is within the power of State Government to issue notification and
designate any other civil court having jurisdiction in respect of the matters
dealt with in this Act. In the case of transferring the proceedings by the
District Judge to the court of extra Assistant Judge, appeal would lie to the
District Court and not to the High Court -Bhaskar Padma v. Meera Bai 1983 HLR
584.
Section
3(f): The question whether the two are sapindas of each other is to be decided
on the basis of the definition as laid down under the Hindu Marriage Act,1955.
Text would be of no help in this regard. Sudarsan Narkar v.Amina Mandal 1982
HLR 277.
Save as otherwise expressly
provided in this Act :-
(a) any text, rule or interpretation of Hindu
law or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter
for which provision is made in this Act ;
(b)
any
other law in force immediately before the commencement of this Act shall cease
to have effect insofar as it is inconsistent with any of the provisions
contained in this Act.
Hindu Marriages
5. Conditions for a Hindu marriage
A
marriage may be solemnized between any two Hindus, if the following condition
are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage
1[(ii) at the time of marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent,
has been suffering from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children; or
(c ) has been subject to recurrent attacks of
insanity2 [***]
(iii) the bridegroom has completed the age of 3[twenty one years] and the bride, the
age of 4[eighteen
years] at the time of marriage
(iv) the parties are not within the degrees of
prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each
other, unless the custom or usage governing each of them permits of a marriage
between the two; 5[***].
COMMENTS
Hindu
Marriage Act not only makes bigamous marriage void but also punishable under
s.17 read with sections 494 and 495 of Indian Penal Code. What is to be
established is that the second marriage is valid but for this provision and the
spouse to the first marriage is the
legally wedded spouse and the that marriage is having its existence on
the date second marriage is solemnized- Gopal Lal v. State of Maharashtra AIR
1979 SC 713
In
order to render second marriage invalid, it is necessary to establish first
marriage as valid. Where an application to claim maintenance is moved by second
wife, onus is upon the husband establishing the second marriage in
contravention of the provisions of cl.(1) of s.5 -Mohan Ram v. Badamo Devi 1974
cr. LJ 227
Suffering
from schizophrenia as a sound ground for a decree of nullity. Whether the
disease is curable or not does not make any difference. Where in due course the
disease is cured, it would not affect the question of validity of marriage.-Tulsi
Bai v. Manoharan 1990 (1)HLR 318
It is
not the requirements that a person should be insane or suffering from epilepsy
at the time of marriage. It is sufficient if he or she had been subject to recurrent attacks of insanity or
epilepsy-Bala Krishna v. Lalitha 1984 (1)APLJ 32
In the
case of a bigamous marriage, it is necessary to establish the performance of
essential ceremonies which constitute a valid marriage and thereafter leading
some evidence in support thereof. -Ashok Kumar v. Krishna Kumari 1993(1) HLR
114
The
expression “connivance” suggests some aiding or abetting which is active or
some conduct sufficient to infer such aiding or abetting within the term
“connivance”is included such conduct which would amount to passive acceptance
of the lapse of the wife and the other men concerned-Krushan Chandra Patra v.
Tanu Patra 1993 (1) HLR 116
The
expression “procreate” having a very wide meaning, indicating capacity of
spouse to give birth as also to rear up the children.-Alka Sharma v.A.C.Sharma AIR
1991 MP 205.
Where
the marriage is solemnized, disregarding the provision of Child Marriage
Restraint Act, the petition of the wife claiming restitution of conjugal rights
is liable to be dismissed.-Dinesh v.Rekha 1986 (1)HLR 265
[Repealed by the Child Marriage
Restraint (Amendment), Act., 1978, w.e.f. 1-10-1978]
7. Ceremonies for a Hindu marriage
(1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies includes
the saptapadi (that is, the taking of seven steps by the bridegroom and the
bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.
COMMENTS
Solemnization
of marriage through the performance of Karewa ceremony amounts to a valid
marriage as per the customary rites prevailing in Punjab but where the husband
and the lady is alive on the date the marriage is solemnized, marriage would be
treated as void.-Veena Rani v.Jagdish Mitter 1990(1)HLR113
8. Registration of
Hindu marriages
(1) For the purpose of facilitating the proof
of Hindu marriages, the State Government may make rules providing that the
parties to any such marriage, may have the particulars relating to their
marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept
for the purpose.
(2) Notwithstanding anything contained in sub
section(1), the State Government may, if it is of opinion that it is necessary
or expedient so to do, provide that the entering of the particulars refereed to
in sub-section (1)shall be compulsory in the State or in any part thereof,
whether in all cases or in such cases as may be specified, and where any such
direction has been issued, any person contravening any rule made in this behalf shall be punishable with
fine which may extend to twenty five rupees.
(3) All rules made under this section shall be
laid before the State Legislature, as
soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all
reasonable times be open for inspection, and shall be admissible as evidence of
the statements therein contained and certified extracts therefrom shall, on
application, be given by the Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this
section, the validity of any Hindu marriage shall in no way be affected by the
omission to make the entry.
COMMENTS
The
mere fact that marriage has been registered would not convert an invalid
marriage into valid one. In the case of an invalid marriage which has been
registered a suit for declaration of marriage as invalid is
maintainable.-Krishan Paul v.Ashok Kumar Paul 1982 HLR478
Restitution of conjugal rights and judicial sepration.
9. Restitution of
conjugal rights
1[***] When either the husband
or the wife has, without reasonable excuse, withdrawn from the society of the
other, the aggrieved party may apply, by petition to the district court, for restitution
of conjugal rights and the court, on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights
accordingly.
2[Explanation: Where a question
aries whether there has been reasonable
excuse for withdrawal from the society,
the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society.]
3[***]
COMMENTS
As
during the lifetime of first spouse
living, the second marriage is void, the man marrying when his first wife is
living cannot claim restitution as against the second wife. Asha Kumari
v.Satish Kumar 1990(1)HLR7
In case
there is continuous demand of dowry on the part of husband, this would amount
to giving reasonable cause to the wife to withdraw herself from the society of
the husband.-Narinder Kumar v.Chander Prabha 1990(1)HLR518
Where a
suspicious husband writing letters to the wife raising baseless allegations and
unwilling to regret in spite of the fact that wife is not willing reconcile, it
is not only the husband who is at fault in case the wife denies him his
conjugal rights.-A.B.Bakre v.B.S.Bakre AIR 1991 Bom 165
Leaving
home by the husband intending thereby terminating cohabitation permanently that
conduct would amount to desertion on the part of husband. But, where the
husband claims restitution of conjugal rights after a big gap of seven years,
there is justification when the wife does not accompany her.-G. Ramakrishna Pillai
v.j.Vijaya Kumari Amma AIR 1990 Ker 55.
Where
the husband makes the allegation of unchastity so that she is returned to her
matrimonial home, and the allegation is not found to be baseless, it was held
that this has to be considered along with the persistent refusal of the wife to
stay with the husband. In the instant case, the petition moved by the wife for
restitution of conjugal rights was not granted.-Ammini.V Kuttappan 1990(1) HLR 454
In case
there is no proper explanation as regards delay in filling the petition of
restitution of conjugal rights, application should be regarded as unnecessary
and improper- G. .Ramakrishna Pillai v.
J.Vijaya Kumari Amma AIR 1990 Ker 55.
1[(1) Either party to a marriage, whether solemnized before or after
the commencement of this Act, may
present a petition praying for a decree for judicial separation on any of
grounds specified in sub-section (1) of section 13, and in the case of a wife
also on any of the grounds specified in sub-section (2) thereof, as
grounds on which a petition for divorce might have been presented.]
(2) Where a decree for judicial separation
has been passed, it shall no longer be obligatory for the petitioner to cohabit
with the respondent, but the court may, on the application by petition of
either party and on being satisfied of the truth of statements made in such
petition, rescind the decree if it considers it just and reasonable to do so.
COMMENTS
Where
the wife deprived her company for two and a half years and for this there was
no fault on the part of husband it was
held that it indicated the disruption of marriage and it would be ridiculous to
allow marriage to survive.- Ratneshwar Misra v.Prem lata Devi1987 (1) HLR 255.
Petty
domestic quarrels, cause being the presence of mother in law in the family,
cannot be treated as mental cruelty.-Yashoda Dai.v.K.B.Kalavkar AIR1992 Kar 368.
In
spite of the fact that both the husband and wife are living under the same
roof, there may be a case of desertion when there is positive evidence
exhibiting neglect, indifference or overt acts of estrangement on the part of
one.-T.k. Chatterjee v.Kamala Chatterjee AIR1989 Cal. 74.
Nullity of marriage and divorce
11. Void marriage
Any
marriage solemnized after the commencement of this Act shall be null and void
and may, on a petition presented by either party thereto 5[against the other party], be so
declared by a decree of nullity if it contravenes any one of the conditions
specified in clauses(i), (iv)and (v)of section 5.
COMMENTS
The
expression “either party thereto” as used section 11 means only the actual
parties, to the marriage. The expression does not include any third
party.-Suresh Kumar v. Smt Asha Rani 1993 (1) HLR21 .Where the decree of
nullity has been granted by the High Court, question does not arise of the
marriage being again declared a nullity by confirming the decree passed by the District Judge.-Thomas
Cherian v.Nisha Thomas AIR1993 Ker 19
(1) Any marriage solemnized, whether before of
after the commencement of this Act, shall be voidable and maybe annulled by a
decree of nullity on any of the following grounds, namely.-
1[(a) that the marriage has not been consummated owing to the impotence
of the respondent ; or]
(b) that the
marriage is in contravention of the condition specified in clause (ii)
of section 5;or
(b)
that
the consent of the petitioner, or where the consent of he guardian in marriage of the petitioner 2[was required under section 5 it stood
immediately before the commencement of the Child Marriage Restraint (Amendment)
Act, 1978(2 of 1978)], the consent of such guardian was obtained by force 3[or by fraud as to the nature of the
ceremony or as to any material fact or
circumstance concerning the
respondent ] ;or
(d) that
the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub
section(1), no petition annulling a
marriage-
(a) on the ground specified in clause (c) of
sub section(1), shall be entertained if -
(i) the petition is presented more than one
year after the force had ceased to operate or, as the case may be, the fraud had been discovered ;or
(ii) the petitioner has, with his or her full
consent, lived with the other party to the
marriage as husband or wife after the
force had ceased to operate or, as the case may be the fraud had been
discovered.
(b) on the
ground special in clause (d) of sub-section (1) shall be entertained
unless the court is satisfied-
(i) that the petitioner was at the
time of marriage ignorant of the facts alleged.;
(ii)
that
proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the
case of marriage solemnized after such commencement within one year from the
date of the marriage; and
(iii)
that
marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of 4[the
said ground]
COMMENTS
Where
the petition for annulment of marriage is filed after 8 years of marriage, such
a petition would be barred by time-Sarlabai V.Komal Singh AIR 1991 MP
358.Selectin of bride with total knowledge as regards her defects would serve as estoppel from arguing that marriage
was tainted with fraud.-Ruby Roy v. Sudarsan Roy 1988 Cal.210.
Where
mental disorder of the wife was the ground for obtaining divorce, there cannot
be a challenge to the grant of alimony on the ground that mental disorder was
in existence prior to the marriage and therefore the marriage was voidable under s. 12(1)(b) -Mukesh Mathur
V.Veena Mathur AIR 1989 Raj 97.
Where
the annulment is sought on the ground of fraud, details which the professional match makers supply bear no
relevancy as the parties are at liberty to verify the facts.-Deepayan
Chatterjee V.Papiya Chatterjee 1990 (1)HLR 113
13. Divorce
(1) Any marriage solemnized, whether before or
after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by decree of divorce on the ground that the
other party-
(i)
1[has after the solemnized of
the marriage, had voluntary sexual inter course with any person other than his
or her spouse; or
(ia) has, after the solemnization of the
marriage, treated the petitioner with cruelty ;or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or,]
(ii) has ceased to be a Hindu by conversion to
another religion; or
1[(iii) has been incurably of unsound mind, or has been suffering
continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.
Explanation:
in this clause-
(a) the expression “mental disorder” means
mental illness, arrested or incomplete development of mind, psychopathic
disorder of any other disorder or disability of mind and includes
schizophrenia.
(b) the expression “psychopathic disorder” means a persistent disorder of disability of mind
(whether or not including sub- normality
of intelligence) which results in abnormally aggressive or seriously
irresponsible conduct on the part of
the other party, and whether or not it requires or is susceptible to medical
treatment or.;
(iv) has 2[***]
been suffering from a virulent and
incurable form of leprosy.
(v) has 2[***]
been suffering from venereal disease in a communicable form; or.
(vi) has renounced the world by entering any
religious order; or
(vii)
has not
been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive, 3[***]
1[Explanation : In this sub section,
the expression “desertion” means the
desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or
against the wish of such party and includes the wilful neglect of the
petitioner by the other party to the marriage, and its grammatical variations
and cognate expressions shall be constructed accordingly.]
2[(1A) Either party to a marriage whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution of
the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of
cohabitation as between the parties to the marriage for a period of 3[one year]
or upwards after the passing of a decree for judicial separation in a proceeding
to which they were parties ;or,
(ii) that there has been no restitution of
conjugal rights as between the parties to the marriage for a period of 3[one year] or upwards after the passing
of a decree for restitution of conjugal rights in a proceeding to which they
were parties.]
(2) A wife
may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground -
(i) in the case of any marriage solemnized
before the commencement of this Act, that the husband had married again before
such commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnization of the marriage of the
petitioner.
PROVIDED that in either case
the other wife is alive at the time of the presentation of the petition ; or
(ii) that the
husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or 4[bestiality; or].
5[(iii) that in a suit under section 18 of Hindu Adoptions and Maintenance
Act 1956 (78 of 1956), or in a proceeding under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974)(or under the corresponding section 488 of
the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against
the husband awarding maintenance to the wife notwithstanding that she was
living apart and that since the passing of such decree or order, cohabitation
between the parties has not been resumed for one year or upwards;
(iv)
that
her marriage (whether consummated or not) was solemnized before she attained
the age of fifteen years and she has repudiated the marriage after attaining
that age but before attaining the age of eighteen years.
Explanation:
This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment)Act ,1976(68 of 1976).
COMMENTS
It is
not requirements that there must be a
direct proof of adultery. There would not be any justification in expecting
direct evidence and where such an evidence is presented before the court, must
be suspected and the evidence is apt to be disbelieved.- Sanjukta Pradhan V.Laxmi Narayan Pradhan AIR
1991 Orissa 39
Cruelty
may depend upon the type of life the parties are habitual of, their economic
and social conditions, cultural and human values to which they attach
importance may also lead to the
conclusion, whether the instance falls within the expression
“cruelty”.-Narayanan V. Sri Devi AIR 1990 Ker 151.
Where
the wife threats to commit suicide, it would amount to mental cruelty caused to
the husband. Ranga Rao V.Vijaylaxmi 1990 (1) HLR 601.
Where
the wife refuses to have sexual
intercourse and there in no reason for such refusal, that would amount to
cruelty subjected to husband.- Radhey Shyam v.Kusum 1990 (2) HLR 230
Petty
quarrels between husband and wife cannot be so serious as amounting to cruelty
and entitling husband to move for divorce.- Tapan Chakravarty v. Anjali
Chakravarty AIR 1993 Cal.10
Where
the husband staying with a lady not his
relative and the wife for this reason unwilling to stay with the husband and
willing only when the lady is ousted from the home wife will not be guilty of
cruelty as given same to the husband to take divorce on the ground of desertion
or cruelty.-M.M.. Manna v.Chitra Manna AIR 1993 Cal 33.
Where
there is an absolute denial of the obligation of marriage that would amount to
desertion.-Sukumar Mukherjee V.Tripati Mukherjee AIR 1992 Pat.32
It is
the petitioner who has to establish desertion for 2 years and that there was no
cause for desertion. Where the conduct of the one is such as forcing other to
stay away, that would not amount to desertion as a ground of divorce.-Eloskhi
Chakraborty V.S.K. Chakraborty AIR 1991 Cal 176
There
may be instances indicating short tempered nature and somewhat erratic
behaviour, but this alleged mental disorder cannot be such a kind as making for
husband living with the wife impossible.-N.M.Jagesha AIR 1991 Bom 259
1[13A. Alternate
relief in divorce proceedings
In any
proceeding under this Act, on a petition for dissolution of marriage by a
decree of divorce, except insofar as the petition is founded on the grounds
mentioned in clauses(ii), (vi)and(vii) of sub section (1) of section 13, the
court may, if it considers it just to do having regard to the circumstances of
the case, pass instead a decree for judicial separation.
13B. Divorce by mutual consent
(1) Subject to the provision of this Act a
petition for dissolution of marriage by a decree of divorce may be presented to
the district court by both the parties to a marriage together,whether such
marriage was solemnized before or after the commencement of Marriage Laws
(Amendment) Act, 1976 (68 of 1976), on the ground that they have been living
separately for a period of one year or more, that they have not been able to
live together and that they have mutually agreed that the marriage should be
dissolved.
(2) On the
motion of both the parties made not earlier than six months after the
date of presentation of the petition referred to in sub section (1) and not
later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such
inquiry as it thinks fit, that a marriage has
been solemnized and that the averments in the petition are true, pass a
decree of divorce declaring the marriage to be dissolved with effect from the
date of the decree]
COMMENTS
Where a
petition for divorce is moved under s. 13 the same can be converted into a
petition under s. 13B provided it is duly signed by both the parties and therby giving issue to a divorce on the
ground of mutual consent.-Kuljit Kaur v. Harjit Singh 1989(2)HLR 72.
Where
one of the parties has withdrawn the consent then the petition moved and section 13B has to be dismissed.-Gautam Basu
v. Nina Basu 1990(2)HLR 496
14 No petition for divorce to be
presented within one year of marriage
(1) Notwithstanding anything contained in
this Act, it shall not be competent for any court to entertain any petition for
dissolution of a marriage by a decree of divorce, 1[unless at the date of the presentation
of the petition one year has elapsed] since the date of the marriage:
PROVIDED
that the court may, upon application made to it in accordance with such rules
as may be made by the High Court in that behalf, allow a petition to be
presented 1[before one year has
elapsed] since the date of marriage on
the ground that the case is one of exceptional hardship to the petitioner or of
exceptional depravity on the part of respondent, but if it appears to the court
at the hearing of the petition that the
petition obtained leave to present the petition by any mis- representation or concealment
of the nature of the case, the court
may, if it pronounces a decree, do so subject to the condition that the decree
shall not have effect until after the 1[
expiry of one year] from the date of the
marriage or may dismiss the petition without prejudice to any petition
which may be brought after 1[expiration
of the said one year] upon the same or
substantially the same facts as those alleged in support of the petition so
dismissed.
(2) In disposing of any application under this
section for leave to present a petition for divorce before the 1[ expiration of one year] from the date
of the marriage, the court shall have
regard to the interests of any children of the marriage and to the question
whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 1[said
one year].
COMMENTS
In case
there is the leave granted to institute divorce proceedings within one year of
marriage, and there was no raising of objection by either of the parties and
the trail continued the parties are not
at liberty to raise objection, stating as granting of leave improper.-Deepayan
Chatterjee V. Pipiya Chatterjee 1990(1)HLR 413
15. Divorced persons when may
marry again
When a
marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if
there is such a right of appeal, the time for appealing has expired without an
appeal having been presented, or an appeal has been presented but has been
dismissed, it shall be lawful for either party to the marriage to marry again.
1[***]
1 Substituted by Act 68 of 1976, w.e.f. 27-5-1976
2 Words “or epilepsy” omitted by Marriage Laws (Amendment) Act, 1999, w.e.f. 29-12-1999
3 Substituted by Act2 of 1978 for “eighteen years” w.e.f. 1-10-1978
4 Substituted by Act 2 of 1978 “fifteen years” w.e.f. 1-10-1978.
5 Clause (vi) omitted by Act 2 of 1978, w.e.f. 1-10-1978
1 The brackets & figure “(1)” omitted by Act 68 of 1976
2 Inserted by Act 68 of 1976, w.e.f. 27-5-1976
3 Sub-s.(2) omitted by Act 68 0f 1976, w.e.f. 27-5-1976.
1 Substituted by Act 1976 w.e.f. 27-5-1976.
5 Inserted by Act 68 of 1976 wef 27.5.1976
1 Substituted by Act 68 of 1976 w.e.f. 27-5-1976.
2 Substituted by Act 2 of the 1978 for word “is required under section 5 “ w.e.f. 1-10-1978.
3 Substituted by Act 68 of 1976 for words “or fraud”, w.e.f. 27-5-1976.
4 Substituted by Act 68 of 1976 for words “the grounds for a decree”
1 Substituted by Act 68 0f 1976, for the former clause
1 Substituted by Act 68 of 1976 for the former clause.
2 Certain words omitted by Act 68 0f 1976.
2 Certain words omitted by Act 68 0f 1976
3 Word “or” at the end of clause (vii) and clauses(viii) & (ix) omitted by Act 44 of 1964.
1 Inserted by Act 68 of 1976, w.e.f. 27-5-1976.
2 Inserted by Act 44 of 1964
3 Substituted by Act 68 of 1976, for words “ two years”, w.e.f. 27-5-1976
4 Substituted by Act 68 of 1976 for word “ bestiality”, w.e.f. 27-5-1976
5 Inserted by Act 68 of 1976, w.e.f. 27-5-1976.
1 Inserted by Act 68 of 1976, w.e.f. 27-5-1976
1 Inserted by Act 68 of 1976, w.e.f. 27-5-1976
1 Substituted by Act 68 of 1976, for certain words, w.e.f. 27-5-1976.
1 Inserted by Act 68 of 1976, w.e.f. 27-5-1976
1 Proviso omitted by Act 68 of 1976.
1 Proviso omitted by Act 68 of 1976.
1 Proviso omitted by Act 68 of 1976.
1 Proviso omitted by Act 68 of 1976.