2[16 Legitimacy of children of void and void able marriages
(1) Notwithstanding
that marriage is null and void under section 11, any child of such marriage who
would have been legitimate if the marriage had been vaild, shall be legitimate,
whether such child is born before or after the commencement of the Marriage
Laws ( Amendment) Act, 1976 (68 of 1976), and whether or not a decree of
nullity is granted in respect of that marriage under this Act and whether or
not the marriage is held to be void otherwise than on a petition under this
Act.
(2) Where a decree
of nullity is granted in respect 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) Notwithstanding
contained in sub section (1) or sub-section (2) shall be construed as
conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nulity under section 12, any rights in or to the
property of any person, other than the parent, in any case where, what for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of
his parents].
COMMENTS
The rights that this section confers upon illegitimate children
is only as regards the property left by their parents.-Yagarlamudi Sujata V.
Krishan Prasad AIR 1992 SC 293
Any marriage between two Hindus
solemnized after commencement of this Act is void if at the date of such
marriage either party had a husband or wife living; and the provisions of
sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply
accordingly.
18. Punishment for contravention of certain
other conditions for a Hindu marriage
Every person who procures marriage of himself or herself to be
solemnized under this Act in contravention of the conditions specified in
clauses (iii), (iv) 3[and (v)]
of section 5 shall be punishable-
(a) in the case of a
contravention of the condition specified in clause (iii) of section 5, with
simple imprisonment which may extend to fifteen days, or with fine which may
extend to one thousand rupees, or with both;
(b)
in the case of a
contravention of the condition specified in clause (iv)or clause (v) of section 5, with simple
imprisonment which may extend to one month or with fine which may extend to one
thousand rupees, or with both; 4 [***] 5 [***]
Jurisdiction and procedure
1[19. Court to which petition shall be presented
Every petition under this Act shall be presented to the District Court within the local limits of
whose ordinary original civil jurisdiction-
(i) the
marriage was solemnized; or
(ii) the respondent, at the time of the
presentation of the petition, resides or
(iii) the parties to the marriage last resided together,or
(iv) the petitioner
is residing ,at the time of the presentation of the petition, in a case where
the respondent is, at that time, residing outside the territories to which this
Act extends, or has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of him if he were
alive.]
20 Contents and verification
of petitions
(1) Every petition
presented under this Act shall state as
distinctly as the nature of the case permits the facts on which the claim to
relief is founded, 2[and, except in a
petition under section 11, shall also state] that there is no collusion between the petitioner and the
other party to the marriage.
(2) The statements
contained in every petition under this Act shall be verified by the petitioner or some other competent
person in the manner required by law for the verification of plaints, and may,
at the hearing, be refereed to as evidence.
21 Application of Act 5 of 1908
Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all
procedure under this Act shall be
regulated, as far as may be, by the Code of Civil Procedure, 1908.
3[21A Power to transfer petitions in certain cases
(1) Where-
(a)
a petition under this Act has been presented to a district court
having jurisdiction by a party to a marriage praying for a decree for judicial
separation under section 10 or for a
decree of divorce under section 13, and
(b)
another petition under this Act has been presented thereafter by
the other party to the marriage praying for a decree for judicial separation
under section 10 or for a decree of divorce under section 13 on any ground,
whether in the same District Court or in a different District Court, in the same State or in a different State, the
petitions shall be dealt with as specified in sub-section (2).
(2) In
a case where sub section (1) applies
(a) If the petitions are presented to the same
District Court, both the petitions shall be tried and heard together by that
District Court.
(b) if the petitions
are presented to different District Courts, the petition presented later shall
be transferred to the District Courts in which the earlier petition was
presented and both the petitions shall be heard and disposed of together by the
District Court in which the earlier petition was presented.
(3) In a case where
clauses (b) of sub section (2) applies, the court or the Government, as the
case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to
transfer any suit or proceeding from the District Court in which the later
petition has been presented to the District Court in which the earlier petition
is pending shall exercise its powers to transfer such later petiton as if it
had been empowered so to do under the said Code.
COMMENTS
Where the lady is poor, feeling hard to attend divorce
proceeding and also her life in danger, it was taken to be a fit case for the
transfer of the proceedings.-Heere Tripathi V. N.P. Tripathi 1993 (1)DMC115
21B Special provision
relating to trial and disposal of
petitions under this Act
(1) The trial of a
petition under this Act shall, so far as is practicable consistently with the
interests of justice in respect of the trial, be continued from day to day
until its conclusion unless the court finds the adjournment of the trial beyond
the following day to be necessary for reasons to be recorded.
(2) Every petition
under this Act shall be tried as expeditiously as possible and endeavor shall
be made to conclude the trail within six months from the date of service of
notice of the petition on the respondent
(3) Every appeal
under this Act shall be heard as expeditiously as possible, and endeavor shall
be made to conclude the hearing within three months from the date of service of
notice of appeal on the respondent.
Notwithstanding anything in any enactment to the contrary, no
document shall be inadmissible in evidence in any proceeding at the trial of a
petition under this Act on the ground
that it is not duly stamped or registered.
1[22 Proceedings to be in camera and may not be
printed or published
(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 High Court or of the Supreme Court printed or published with the
previous permission of the Court .
(2) If any person
prints or publishes any matter in contravention of the previous contained in
sub section(1), he shall be punishable with fine which may extend to one
thousand rupees.]
(1) In any
proceeding under this Act, whether
defended or not, if the court is satisfied that-
(a) any of the
grounds for granting relief exists and the petitioner 2[except
in cases where the relief if sought by
him on the ground specified in sub clause (a), sub clause (b) or sub clause (c)
of clause (ii) of section 5] is not in any way taking advantage of his or her
own wrong or disability for the purpose of such relief ,and
(b) where the ground
of the petitioner is the ground specified 1[***]
in clause (I) of sub section (1) of
section 13, the petitioner has not in any manner been accessory to or connived
at or condoned the act or acts complained of, or where the ground of the
petition is cruelty the petitioner has not in any manner condoned the cruelty,
and
2(bb) when a divorce is sought
on the ground of mutual consent, such consent has not been obtained by force,
fraud or undue influence, and]
(c ) 3[the petition (not being a petition
presented under section 11)] is not presented or prosecuted in collusion with
the respondent, and
(d) there has not
been any unnecessary or improper delay in instituting the proceeding, and
(e) there is no
other legal ground why relief should
not be granted. Then, and in such a case, but not otherwise, the court shall
decree such relief accordingly.
(2) Before
proceeding to grant any relief under this
Act, it shall be the duty of the court in the first instance, in every
case where it is possible so to do consistently with the nature and
circumstances of the case, to make every endeavor to bring about a
reconciliation between the parties:
4[PROVIDED that nothing contained in this sub-section shall apply
to any proceeding wherein relief is sought on any of the grounds specified in clause (ii),
clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of
sub-section (1) of section 13.]
4 [(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the
parties so desire or if the court thinks it just and proper so to do, adjourn
the proceedings for a reasonable period not exceeding fifteen days and refer
the matter to any person named by the parties in this behalf or to any person
nominated by the court if the parties fail to name any person, with directions
to report to the court as to whether reconciliation can be and has been,
effected and the court shall in disposing of the proceeding have due regard to
the reports.
(4) In every case
have case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]
COMMENTS
The parties entitled to be given a hearing in matrimonial
matters are the husband or the wife or the co- respondent . Matrimonial
jurisdiction is special controlled by the
Hindu Marriage Act-.P.C.Bhashin V.Sunita AIR 1990 Delhi 320
Rule 9 of the order 9 of the Code of Civil Procedure is having
its applicability in case the proceedings are under Hindu Marriage Act-C.Sarla
v. Nalinapshan AIR 1991 Ker 362
4[23A Relief for respondent in divorce and
other proceedings
In any proceeding for divorce or judicial separation or
restitution of conjugal rights, the respondent may not only oppose the relief
sought on the ground of petitioner’s
adultery, cruelty or desertion, but also make a counter - claim for any relief
under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved,
the court may give to 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 such on that ground].
24 Maintenance pendente lite
and expenses of proceedings
Where in any proceedings under this Act it appears to the court
that either the wife or the husband, as the case may be, has no independent
income, sufficient for her or his support and the necessary expenses of the proceeding,
it may, on the application of the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceedings, and monthly during the proceedings
such sum as, having regard to the petitioner’s own income and the respondent,
it may seem to the court to be reasonable.
COMMENTS
The expression “husband
and wife” as finds place under s.24
does not require a rigid interpretation. Besides the inclusion of legally
married wife and husband, the expression also includes the person claiming to
be a wife or husband.- Laxhmibai v
Ayodhya Prasad AIR 1991 MP 47
In the case for one reason or
the other the proceedings are protracted and the applicant is not the least
responsible for, the applicant cannot lose the right for getting maintenance
pendente lite from the date of application.- Indira Gangole v. S.K. Gangole AIR
1992 MP 73
In case there is an order of
maintenance pendente lite passed, it cannot be appealed against for it is just
an order interlocutory and never a judgement.- S.H.Gupta.v.P.S.Gupta.AIR 1991
Bom.423.
Where there is no obstacle in
the matter of earning granting of maintenance to one who is skilled does not
fall within the purview of the scheme of the Act. Simple fact of business closed down, does not indicate no source of
income .-Kanchan v. Kamalendra AIR 1992 BOM 493
Expenditure done on the
travelling so as to attend the court where is a big distance from the residence and the court is also included in
the court of litigation, and in case some assistance is required by the
applicant lady or some male companion,
it is necessary that the respondent must pay travelling expenses of both of
them besides same deamess allowance.-S .D. Naik v. D.K. Naik 1993 (1)DMC 112
25 Permanent alimony and maintenance
(1) any court exercising jurisdiction under this Act may at the
time of passing any decree or at any time subsequent thereto, on application
made to it for the purpose by either the wife or the husband, as the case may
be, order that the respodent shall 1[***]
pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for
a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other property
of the applicant 2[the
conduct of the parties and other
circumstances of the case], it may seem to the court to be just, and any such
payment may be secured, if necessary, by a
charge on the immovable property
of the respondent.
(2) If the court is
satisfied that there is a change in the circumstances of either party a at any time after it has made an
order under sub-section (1), it may at the instance of either party, vary,
modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an
order has been made under this section has remarried or, if such party is the
wife, that she has not remained chaste, or, if such party is the husband, that
he has had
sexual intercourse with any
woman outside wedlock, 1[it may
at the instance of the other party very modify or resind any such any
order in such manner as the court may
the just.]
COMMENTS
Were matrimonial relief is
refused the order of refusal amounts to a decree for all purposes including for
appeal as under s.20 of the
Act.-M.K.Jain. v.L.M.Jain AIR 1991 Bom 440.
Sec. 11 of the Code of Civil
Procedure or the principles of res judicata or the doctrine of estoppel is of
no avail against the wife so as to defeat her claim for the higher ratio of maintenance allowance.- R.S.Rastogi.v.Vinay Rastogi AIR 1991
All. 255.
In any proceeding under this
Act, the court may, from time to time, pass such interim orders and make such
provisions in the decree as it may deem just and proper with respect to the
custody, maintenance and education of minor children, consistently with there
wishes, wherever possible, and may, after the decree ,upon application by
petition for the purpose, make from time to time, all such orders and provisions with respect to custody,
maintenance and education of such children as might have been made by such
decree or interim orders in case the proceeding for obtaining such decree were still
pending, and the court may, also from, time to time revoke, suspend or very any
such orders and provisions previously made.
COMMENTS
It is the District Judge who is
appropriate and not the High Court to take a decision upon the custody of the
minor children.-K.C.Das v. Kusam Das
AIR 1991 Gau. 54.
In any proceeding under this
Act, the court may make such provisions in the decree as the deems just and
proper with respect to any property
presented, at or about the time of marriage, which may belong jointly to both
the husband and wife.
COMMENTS
There can be the passing of the
order not to remove the ornaments placed in the locker in the joint names and to be operated by both
the husband and wife for there can be
the presumption raised that the omaments are belonging to both.- B.K.Sinha v.
Rekha Sinha AIR 1992 Pat 173.Where the property presented at about the time of
marriage is alleged to be a joint belonging of both the husband and wife, that the section comes to
application.-Subash Lata.v.V.N.Khanna AIR 1992 Del 14.
2[28 Appeals from decrees and orders
(1) All decree made by the court in any proceeding 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 jurisdiction, and every
such appeal shall lie to the court to which appeals ordinarily lie from the
decisions of the court given in the exercise of its original civil
jurisdiction.
(2) Orders made by the court in any proceedings under this Act
under section 25 or section 26 shall, subject to the provision or sub section
(3), be appealable if they are not interim orders, and every such appeal shall
lie to the court to which appeals ordinarily lie from the decision of the court
given in exercise of its original civil jurisdiction.
(3) There shall be not appeal under this section on the subject of
costs only.
(4) Every appeal under this section shall be preferred within a
period of thirty days from the date of
the decree or order.
COMMENTS
Where there is the passing of
the interim orders either under s. 24 or 25 or 26 of the Act such order is not
appealable as per the language used in s. 28 (2) of the Act.- S.H.Gupta v. P.S.
Gupta AIR 1991 Bom 423.
28A Enforcement of decrees and orders
All decrees and orders made by
the court in any proceeding under this
Act shall be enforced in the like manner as the decrees and orders of the court
made in exercise of its original civil
jurisdiction for the time being are enforced.]
Saving and Repeal
29 Saving
(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise
valid, shall not be deemed to be
invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to
the same gotra or pravara or belonged to different religions, castes or sub
divisions of the same caste.
(2) Nothing contained in this Act shall be deemed to affect any
right recognised by custom or conferred by any special enactment to obtain the
dissolution of a Hindu marriage, whether solemnized before or after the
commencement of this Act.
(3) Nothing contained is this Act shall affect any proceedings
under any law for the time being in force
for declaring any marriage to be null and void or for annulling or
dissolving any marriage or for judicial separation pending at the commencement
of this Act, and any such proceedings
may be continued and determined as if this Act
had not be passed.
(4) Nothing contained in this Act, shall be deemed to affect the provision
contained in the Special Marriage Act, 1954, (43 of 1954) with respect to
marriages between Hindus solemnized under that Act, whether before or after
commencement to this act.
30 Repeal
[ Repealed by Repealing and Amending Act, 1960 (58 of 1960)
w.e.f. 26-12-1960]
2 Substituted by Act 68 of 1976 for section 16
3 Substituted by Act 2 of 1978 for “(v) and (vi) w.e.f. 1-10-1978.
4 Word “and” omitted by Act 2 of 1978 w.e.f. 1-10-1978
5 clause © omitted by Act 2 of 1978 w.e.f. 1-10-1978
1 Substituted by Act 68 of of 1976 , w.e.f. 27.5.1976.
2 Substituted by Act 68 of 1976 for words “and shall also state”, w.e.f. 27-5-1976.
3 Inserted by Act 68 of 1976, w.e.f. 27-5-1976
1 Substituted by Act 68 of 1976 w.e.f. 27-5-1976.
2 Inserted by Act 68 of 1976, w.e.f. 27-5-1976.
1 Certain words omitted by Act 68 of of 1976, w.e.f. 27-5-1976
2 Inserted by Act 68 of 1976, w.e.f. 27-5-1976.
3 Substituted by Act 68 of 1976 for word “the petition”, w.e.f 27-5-1976.
4 Inserted by Act 68 of 1976, w.e.f 27-5-1976
4 Inserted by Act 68 of 1976, w.e.f. 27-5-1976.
4 inserted by Act 68 of 1976, w.e.f. 27-5-1976.
1 Words “ while the applicant remains unmarried” omitted by Act 38 of 1976.
2 Substituted by Act 68 of 1976 for certain words
1 Substituted by Act 68 of 1976
2 Substituted by Act 68 of 1976.