LegalManthanDivorce: Hindu marriage act

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Saturday, October 9, 2010

Abuse on spur of moment ( normal wear and tear )not valid ground for divorce - SC

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5010 OF 2007

Gurbux Singh .... Appellant (s)

Versus

Harminder Kaur .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) The appellant, a Principal in ITI College, Sirhali,

Amritsar, has approached this Court against the judgment

and final order dated 11.05.2007 of the High Court of

Punjab & Haryana at Chandigarh in FAO No. 252-M of

2006 whereby the learned single Judge dismissed the

appeal filed by him against the judgment and order dated

11.10.2006 of the Additional District Judge (Ad hoc),

Amritsar, dismissing the petition filed under Section 13 of

the Hindu Marriage Act, 1955 (hereinafter referred to as

"the Act") for a decree of divorce against the respondent-

wife, who is working as a Librarian in Government

Institute DIET at Verka, Amritsar on the ground of

`cruelty'. Both the courts have rejected the claim of the

appellant herein on the ground that he has failed to prove

`cruelty' sufficient for grant of a decree of divorce.

The case of the Appellant

2) (a) On 23.11.1997, the appellant got married with the

respondent at Amritsar according to Sikh rites and

customs. Even on the date of marriage, the respondent

had been working as a Librarian in a Government

Institute DIET at Verka, Amristar. From the very

beginning, the respondent expressed her dislike towards

the appellant and his family and gradually started

misbehaving with them. She started exhibiting short-

tempered behaviour and treated the parents of the

appellant with cruelty and disrespect. The father of the

appellant is aged about 80 years and his mother is more

than 75 years. In the month of January 1998, on the first

Lohri festival after their marriage, the respondent being

annoyed with the appellant on a trivial issue, abused his

mother in filthy language in the presence of their relatives

and neighbours causing immense pain to the entire

family. Since then, the respondent started insisting that

she cannot live with the parents of the appellant who are

mental and nuisance in her life and pressed upon the

appellant to have a separate abode from his parents.

(b) On 15.05.1999, a male child was born out of the

wedlock. Even after the birth of the child, there was no

improvement in the behaviour of the respondent. She

always insisted that she being financially independent is

not in need of the appellant and his family.

i.e. on 10.05.2002, the respondent, without any justifiable

reason left the matrimonial home leaving the child

unattended and went to her parents house and staying

there since then. The appellant having failed in his efforts

to bring back the respondent to the matrimonial home

and in view of the consistent cruelty filed HMA Case No.

19 of 2003 before the Addl. District Judge, Amritsar,

praying for a decree of divorce under Section 13 of the Act.

The stand of the Respondent

3) In reply to the divorce petition, while denying all the

averments made by the appellant, the respondent has

stated that the appellant is a greedy person and not

satisfied with the dowry articles received in marriage. He

always misbehaved and maltreated her and abused on

several occasions. She alleged that the appellant is a

habitual drinker and used to threaten her to kill with

poison. She also alleged that the appellant pulled her hair

and gave merciless beatings in the presence of his

parents.

Decision of the District Court and High Court

4) By judgment dated 11.10.2006, the Additional District

Judge, Amritsar, after analyzing the plea of both the

parties, oral and documentary evidence concluded that

the appellant-husband failed to substantiate the

allegations of `cruelty' and dismissed his divorce petition.

Aggrieved by the same, the appellant approached the High

Court by filing FAO No. 252-M of 2006. The learned single

Judge of the High Court, by the impugned order dated

11.05.2007, while agreeing with the conclusion of the

Additional District Judge dismissed the appeal filed by

the appellant. Questioning the above said orders, the

appellant has filed the present appeal by way of special

leave petition.

5) Heard Mr. Vinay Kumar Garg, learned counsel for the

appellant and Mr. Seeraj Bagga, learned counsel for the

respondent.

6) The only question for consideration in this appeal is

whether the appellant-husband has made out a case for

divorce on the ground of `cruelty' by the respondent-wife.

7) Section 13 of the Act specifies the grounds on which a

decree for divorce may be obtained by either party to the

marriage. Though in the divorce petition filed before the

Additional District Judge, Amritsar in HMA No. 19 of

2003, the appellant had sought divorce merely mentioning

Section 13 of the Act for dissolution of marriage by decree

of divorce, and did not specify the grounds on which he is

entitled to decree of divorce. In the petition, the appellant

has highlighted only one aspect, namely, that after the

marriage, in the month of January 1998, on first festival

of Lohri, when they were enjoying the festival, the

respondent-wife abused his mother and the father in the

presence of relatives and neighbours. In para 6 of the

petition, the appellant has alleged that:

".....She called nuisance, idiot and mental to the parents of

the petitioner and the respondent openly said that she did

not want to live with the petitioner if he live with his old

parents."

In para 10, the appellant has stated:

"That on 10th May of 2002, the respondent left her

matrimonial home without giving any information to any

member and she also left her child in the matrimonial home

this shows that the respondent did not have any love and

affections towards petitioner and his family members. She is

living in her parental house for the last more than one year.

Hence, the necessity has been arisen to file the present

petition....."

Except the above allegations, the appellant has not

highlighted any other instance(s) about cruelty by the

respondent. Though learned counsel for the appellant

attempted to argue "desertion", in the absence of any

plea/evidence and material, we disallowed him to pursue

the said point.

8) In the reply to the petition under Section 13 of the Act,

the respondent has highlighted her stand and in fact

denied all the allegations against her. She also projected

her case that the custody of the child was forcibly taken

by the appellant when she returned from her matrimonial

home. She also highlighted that the appellant used to

force her to bring cash from her parents as he wanted to

purchase a car in the month of February 2000. When she

refused to bring cash, she was mercilessly beaten by the

appellant. She also stated that in February 4, 2000, her

parents gave Rs. 50,000/- to the appellant and thereafter

the appellant agreed to keep the respondent in her

matrimonial home. She also alleged that the appellant is

habitual of taking liquor and under influence of liquor, he

used to beat her. She further alleged that the appellant's

maternal uncle's daughter used to interfere in their family

affairs.

9) Apart from the above pleadings, both parties filed

statement in the form of an affidavit/petition and also let

in evidence reiterating their respective pleas. As

discussed earlier, the only instance highlighted by the

appellant for divorce was that the respondent-wife abused

his parents on the day of festival of Lohri in the presence

of relatives and neighbours.

10) In Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511,

a three-Judge Bench of this Court while considering

Section 13(1)(i-a) of the Act laid down certain guidelines.

The analysis and ultimate conclusion are relevant which

reads as under:-

"98. On proper analysis and scrutiny of the judgments of

this Court and other courts, we have come to the definite

conclusion that there cannot be any comprehensive

definition of the concept of "mental cruelty" within which all

kinds of cases of mental cruelty can be covered. No court in

our considered view should even attempt to give a

comprehensive definition of mental cruelty.

99. Human mind is extremely complex and human

behaviour is equally complicated. Similarly human ingenuity

has no bound, therefore, to assimilate the entire human

behaviour in one definition is almost impossible. What is

cruelty in one case may not amount to cruelty in other case.

The concept of cruelty differs from person to person

depending upon his upbringing, level of sensitivity,

educational, family and cultural background, financial

position, social status, customs, traditions, religious beliefs,

human values and their value system.

100. Apart from this, the concept of mental cruelty cannot

remain static; it is bound to change with the passage of time,

impact of modern culture through print and electronic media

and value system, etc. etc. What may be mental cruelty now

may not remain a mental cruelty after a passage of time or

vice versa. There can never be any straitjacket formula or

fixed parameters for determining mental cruelty in

matrimonial matters. The prudent and appropriate way to

adjudicate the case would be to evaluate it on its peculiar

facts and circumstances while taking aforementioned factors

in consideration.

101. No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

dealing with the cases of "mental cruelty". The instances

indicated in the succeeding paragraphs are only illustrative

and not exhaustive:

(i) On consideration of complete matrimonial life of the

parties, acute mental pain, agony and suffering as would not

make possible for the parties to live with each other could

come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life

of the parties, it becomes abundantly clear that situation is

such that the wronged party cannot reasonably be asked to

put up with such conduct and continue to live with other

party.

(iii) Mere coldness or lack of affection cannot amount to

cruelty, frequent rudeness of language, petulance of manner,

indifference and neglect may reach such a degree that it

makes the married life for the other spouse absolutely

intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep

anguish, disappointment, frustration in one spouse caused

by the conduct of other for a long time may lead to mental

cruelty.

(v) A sustained course of abusive and humiliating treatment

calculated to torture, discommode or render miserable life of

the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one

spouse actually affecting physical and mental health of the

other spouse. The treatment complained of and the resultant

danger or apprehension must be very grave, substantial and

weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of

conjugal kindness causing injury to mental health or

deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for

grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of

the married life which happens in day-to-day life would not

be adequate for grant of divorce on the ground of mental

cruelty.

(x) The married life should be reviewed as a whole and a few

isolated instances over a period of years will not amount to

cruelty. The ill conduct must be persistent for a fairly

lengthy period, where the relationship has deteriorated to an

extent that because of the acts and behaviour of a spouse,

the wronged party finds it extremely difficult to live with the

other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of

sterilisation without medical reasons and without the

consent or knowledge of his wife and similarly, if the wife

undergoes vasectomy or abortion without medical reason or

without the consent or knowledge of her husband, such an

act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for

considerable period without there being any physical

incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount to

cruelty.

(xiv) Where there has been a long period of continuous

separation, it may fairly be concluded that the matrimonial

bond is beyond repair. The marriage becomes a fiction

though supported by a legal tie. By refusing to sever that tie,

the law in such cases, does not serve the sanctity of

marriage; on the contrary, it shows scant regard for the

feelings and emotions of the parties. In such like situations,

it may lead to mental cruelty."

11) A Hindu marriage solemnized under the Act can only

be dissolved on any of the grounds specified therein. We

have already pointed out that in the petition for

dissolution of marriage, the appellant has merely

mentioned Section 13 of the Act and in the body of the

petition he highlighted certain instances amounting to

cruelty by the respondent-wife. Cruelty has not been

defined under the Act. It is quite possible that a

particular conduct may amount to cruelty in one case but

the same conduct necessarily may not amount to cruelty

due to change of various factors, in different set of

circumstances. Therefore, it is essential for the appellant,

who claims relief, to prove that a particular/part of

conduct or behaviour resulted in cruelty to him. No prior

assumptions can be made in such matters. Meaning

thereby that it cannot be assumed that a particular

conduct will, under all circumstances, amount to cruelty,

vis-`-vis the other party. The aggrieved party has to make

a specific case that the conduct of which exception is

taken amounts to cruelty. It is true that even a single act

of violence which is of grievous and inexcusable nature

satisfies the test of cruelty. Persistence in inordinate

sexual demands or malpractices by either spouse can be

cruelty if it injures the other spouse. There is no such

complaint by the appellant. In the case on hand, as stated

earlier, the appellant has projected few instances in

which, according to him, the respondent abused his

parents. We have verified all the averments in the

petitions, reply statement, written submissions as well as

the evidence of both parties. We are satisfied that on the

basis of such instances, marriage cannot be dissolved.

12) The married life should be assessed as a whole and a

few isolated instances over certain period will not amount

to cruelty. The ill-conduct must be precedent for a fairly

lengthy period where the relationship has deteriorated to

an extent that because of the acts and behaviour of a

spouse, one party finds it extremely difficult to live with

the other party no longer may amount to mental cruelty.

Making certain statements on the spur of the moment and

expressing certain displeasure about the behaviour of

elders may not be characterized as cruelty. Mere trivial

irritations, quarrels, normal wear and tear of married life

which happens in day to day life in all families would not

be adequate for grant of divorce on the ground of cruelty.

Sustained unjustifiable and reprehensible conduct

affecting physical and mental health of the other spouse

may lead to mental cruelty. Both the appellant and

respondent being highly qualified persons, the appellant

being Principal in ITI College, the respondent working as a

Librarian in a Government Institute, an isolated friction

on some occasion like festival of Lohri even in the presence

of others cannot be a valid ground for dissolving the

marriage.

13) Learned counsel appearing for the appellant by

drawing our attention to certain allegations made by the

respondent-wife in the reply to the petition under Section

13 of the Act before the Addl. District Judge submitted

that by considering all these aspects it is just and

reasonable to consider and grant divorce on the ground of

cruelty. In support of the same, he relied on the decision

of this Court in Vijaykumar Ramchandra Bhate vs.

Neela Vijaykumar Bhate, (2003) 6 SCC 334. No doubt,

in that decision, this Court has held that allegations made

in the written statement or suggested in the course of

examination and by way of cross-examination satisfying

the requirement of law has also to be taken note of while

considering the claim of either party. In the case on hand,

it is true that the respondent-wife has made certain

allegations against her husband-appellant. However,

admittedly based on the same, the trial Court has not

framed any issue and no evidence let in in support of the

same. In such circumstances, the said decision is not

helpful to our case. Admittedly, no such issue was framed

by the trial Court or any point determined by the High

Court based on such averments in the reply/written

statement. Accordingly, we reject the said contention.

14) As regards the allegations about beating her child

and not feeding him, the High Court, after analyzing the

entire materials, disbelieved the same. It is also brought

to our notice that the appellant condoned the alleged act

of cruelty as he wanted to bring back the respondent to

his house. As such, the allegations of cruelty do not

appear to be truthful. It is also proved that the appellant

is not interested to keep the respondent as his wife and he

wants divorce by any means. As observed earlier, except

the grounds enumerated in Section 13, a Hindu marriage

solemnized under the Act cannot be dissolved on any

other grounds.

15) Finally, a feeble argument was made that both the

appellant and respondent were living separately from 2002

and it would be impossible for their re-union, hence this

Court exercising its jurisdiction under Article 142 of the

Constitution their marriage may be dissolved in the

interest of both parties. Though, on a rare occasion, this

Court has granted the extraordinary relief de hors to the

grounds mentioned in Section 13 in view of the fact that

the issue has been referred to a larger Bench about

permissibility of such course at present, we are not

inclined to accede to the request of the appellant. If there

is any change of law or additional ground included in

Section 13 by the act of Parliament, the appellant is free to

avail the same at the appropriate time.

16) In the light of the above discussion, we are unable to

accept the claim of the appellant, on the other hand, we

are in entire agreement with the conclusion arrived at by

the Addl. District Judge as well as the High Court.

Consequently, the appeal fails and the same is dismissed

with no order as to costs.

..........................................J.

(P. SATHASIVAM)

..........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 8, 2010.

http://judis.nic.in/supremecourt

news @http://www.thehindu.com/news/national/article820303.ece

Wednesday, September 22, 2010

SC - Divorce granted by the Panchayat is illegal.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1801 OF 2007

Mahendra Nath Yadav .... Appellant

Versus

Sheela Devi .... Respondent

ORDER

1. This appeal has been preferred against the judgment and order dated 8th October, 2004 of the High Court of Judicature at Allahabad passed in First Appeal Nos.786 and 787/2000 and by which the decree of divorce granted by the Family Court, Varanasi has been reversed and dismissal of the petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called as "Act, 1955") filed by the respondent before the Family Court has also been reversed and her case has been allowed. The parties herein got married on 3rd May, 1990. The ceremony of 'Gauna' was performed in 1991. Appellant is serving in the Army and respondent is serving as a teacher. There was no proper opportunity for both of them to lead a normal family life. Thus, differences arose and litigation started between the parties. The respondent-wife filed an Application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C."), before the Judicial Magistrate, Ist Class, Varanasi. The Magistrate vide order dated 10th May, 1995, allowed the said application by directing the appellant to pay the respondent-wife a sum of Rs.400/- p.m. as maintenance. She also filed Case Crime No.131 of 1991 under Section 498-A of the Indian Penal Code, 1860 (IPC) against the appellant and his family members in the Police Station, Choubeypur, Varanasi. The appellant preferred Revision No.330/95 in the Court of Sessions Judge, Varanasi against the order of the Magistrate granting the maintenance to the respondent. However, that was dismissed by the Revisional Court vide order dated 15th February, 1996. Though the order passed under Section 125 of Cr.P.C. was subsequently modified by the Family Court vide order dated 2nd June, 1997, the relations between the parties deteriorated, an attempt was made by the appellant's family to settle the matter. According to appellant, it was customary in the locality and in the community to which both parties belong to have a divorce through the Panchayat. Thus, the Panchayat was convened on 7th June, 1997. The said Panchayat decided that the appellant should pay a sum of Rs.30,000/- to the respondent's family. It was paid and a document was prepared which was duly signed by the parties. Thus, the marriage came to an end. In order to give legal effect to the said customary divorce, the appellant tried to persuade the respondent to get divorce from the Family Court under Section 13-B of the Act, 1955 by consent. However, she did not agree. Thus the appellant approached the Family Court by filing Petition No.370 of 1998 under Section 13 of the Act, 1955, seeking divorce on the ground of desertion and cruelty. The respondent filed the counter case i.e. Petition No.57 of 1999 under Section 9 of the Act, 1955, for restitution of conjugal rights. The Family Court decreed the suit mainly on the ground that the marriage stood dissolved through Panchayat and dismissed the petition filed by the wife for restitution of conjugal rights vide order dated 15th September, 2000.

2. Being aggrieved, the respondent preferred appeals against both the orders before the High Court and the High Court has reversed the said order in both the cases. Hence this appeal.

3. In spite of service the respondent-wife did not enter an appearance. Thus, we have heard Dr. J.N. Dubey, learned senior counsel appearing for the appellant. Dr. Dubey has taken us through the evidence available on record and through both the judgments. The High Court has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat held on 7th June, 1997, he would not have filed a petition under Section 13 of the Act, 1955. Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal. In view of the above, we do not see any reason to interfere with the well-reasoned judgment of the High Court. The appeal fails and is accordingly dismissed.

No costs.

...................J.(P. SATHASIVAM)

.....................J. (Dr. B.S. CHAUHAN)

New Delhi,

August 25, 2010.

SOURCE -

SC- Divorce cannot be purchased by husband. But can only wife sell it at her price ?

                                               REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                   CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8196-8197 OF 2010
(Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010)

Sanjeeta Das ....Appellant

Versus

Tapan Kumar Mohanty ....Respondent

JUDGMENT

AFTAB ALAM, J.

1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the Hindu religious rites. About three years after the marriage, he filed a petition (Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2

dissolution of his marriage with the appellant on grounds of cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act, 1955]. The appellant strongly resisted the grounds taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent. For the purpose of the present appeal, there is no need for us to go into the details of the allegations made by the respondent in his petition or the counter-allegations made against him in the written statement filed by the appellant. Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty.Invoking, however, the provision of section 23A of the Act, it directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows: "In the ultimate analysis, while rejecting the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his family members at the instance of the respondent shall be loosen"

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

9. In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only).

.....................................J (AFTAB ALAM)

.......................................J (R.M. LODHA)

New Delhi

September 22, 2010.

SOURCE - http://judis.nic.in/supremecourt/chejudis.asp

Wednesday, September 15, 2010

Del HC-Wife gets fined 50,000 for dilatory tactics in HMA proceedings

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: September 08, 2008

Date of Order : October 16, 2008

CM(M) 1146/2007 16.10.2008

Sujata Aggarwal ...Petitioner

Through: Mr. Manu Nayar with

Mr. Hameed S. Shaikh, Advs.

Versus

Ravi Shankar Agarwal ...Respondent Through: Mr. Sunil Mittal and

Mr. V.S. Pandey, Adv.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not ? Yes.

3. Whether judgment should be reported in Digest ? Yes.

JUDGMENT:

1. By this order, I shall dispose of this petition preferred by the wife against the orders dated 3rd March, 2007 and 23rd March, 2007 passed by learned ADJ.

2. The case was at the stage of wife's evidence. Wife had to file an affidavit in her examination-in-chief, as per directions of the Court, within 3 days of 21st November, 2006. She did not file the affidavit. Thereafter, again directions were given on 3.3.07 to the wife to file her affidavit within one week. The affidavit was still not filed. On 23rd March, 2007 when the case was fixed for evidence, a proxy counsel appeared and moved an application for adjournment and Court noticed the conduct of petitioner in not filing affidavit and not appearing in the Court. When objection was raised by the husband's counsel, proxy counsel for the wife told the Court that affidavit shall be filed within half an hour and after half an hour an affidavit was produced, but copy of the same was still not given to the husband's side saying that the same was not ready. The wife was not there for her cross examination. Looking at the entire conduct of the wife that she was not appearing in the Court and even the previous cost imposed by the Court was not paid, the husband's counsel opposed the application for adjournment. The adjournment was sought by the proxy counsel on the ground that regular counsel could not come as his father was ill.The Court observed that it was the respondent who was to appear in the Court for her cross examination and she had been repeatedly avoiding to appear in the Court. Since there were no grounds given for her non-appearance, her defence was struck off by the Court.

3. The order dated 3rd March, 2007 is in respect of disposal of the application moved on behalf of the wife under Order 16 Rule 1 CPC, Order 18 Rule 3(a) CPC and Order 17 Rule 2 CPC whereby she wanted to summon the records of other Courts and to summon the witnesses who had made statements in other Courts and she wanted that parents of the husband, the Chartered Accountant of the husband should also be summoned in the Court as defence witnesses.

4. The Trial Court found that the case was fixed for respondent's evidence on 29th December, 2005. Thereafter, no respondent witness was ever present in the Court. Respondent did not examine even herself in her defence and only moved different applications. When the Court gave directions for wife to appear and examine her witnesses on 14th November, 2006, instead of examining herself she moved 4 applications. Those applications were dismissed with costs vide order dated 21st November, 2006. On next date when the matter was fixed for respondent's evidence and directions were given to file affidavit within 3 days, instead of appearing, she got moved 2 more applications.

5. On next date of hearing, the costs was not paid and the respondent/wife also did not appear. Another application under Section 151 CPC was moved for her exemption from cross examination. The Court found that the respondent/wife was only indulging in dilatory tactics. It was also observed that only 3 adjournments can be granted to a party for evidence and respondent was not entitled to any further adjournment. But the Court still gave one more opportunity.

6. The respondent/wife in her application had taken a plea that she was suffering from tuberculosis of Urinal track and related gynecological problems due to which she was unable to bear any kind of stress and was unable to stand and move out of the house as her blood pressure shoots up and because of these health conditions she was not able to come to the Court. She should therefore be allowed to examine her other witnesses and she should be exempted from examining herself first. The husband denied that she was suffering from any disease as stated by her and stated that she had been seen moving around in shopping centres. The medical certificate filed by her only showed that she was under treatment since 25th May, 2006. The Trial Court found that although the respondent did not file her affidavit by way of evidence in the Court, but she filed several affidavits supporting various applications moved by her. That showed that she had been coming to the Court and executing other affidavits.Even her plea that she was not able to hold urine for more than 10 minutes, was not supported by her medical certificate. The medical certificate filed showed that she was undergoing treatment of Pyrexia of unknown origin.

7. The Trial Court also observed that her claim that she was not able to visit the Court stood belied from her repeated visits to the Court for filing affidavits supporting applications. The number of applications moved and number of affidavits filed by her showed that her plea of being not able to come to the Court was false. The Court also found that if she was not in a position to stand or move, as claimed by her, she would not have been able to come to Court even for moving various other applications. She made several applications on various dates running into numerous pages and with each application an affidavit was there. Thus, the Court dismissed the application of the wife under Order 18 Rule 3(a) with costs of Rs.2,500/- However, the Trial Court still gave the adjournment despite finding that the respondent was guilty of delaying the proceedings, imposing further costs of Rs.5,000/-. It was also made clear to the respondent that she would appear on next date of hearing and would also pay the entire costs including costs imposed on 3rd March failing which her defence would be struck off.

8. In order to consider the challenge to these orders, the Court will have to look at the conduct of the petitioner/wife and see whether her prayer had been sincere or she had been taking the Court for a ride because she had enough money power, on the basis of which she has been assailing every order of the lower Court before High Court.

9. The wife herein is facing a Divorce petition filed by the husband. The Divorce petition was filed in 1998 and appearance was put by her counsel on 15th January, 1999. A perusal of record of Trial Court shows that thereafter the effort of the wife had been to see to it that this case does not proceed further. One leg of the wife had been in the High Court and almost every order passed by the leaned ADJ was challenged before this Court.

10. This Court in an earlier petition no. CM(M) 1742/2004 filed by the wife made following observations:- ?In the meanwhile, it appears that the respondent/husband has been under cross examination for the last three years and as many as 25 days of hearing have taken place. There has to be a finality to the cross examination of the respondent and it cannot be go on interminably. Consequently, other than the cross examination relating to the documents mentioned in Item Nos. 1 to 9 on pages 21 and 22, the cross examination of the respondent must be concluded positively on the next date of hearing, that is,23rd December, 2004?

11. Above order of this Court and the orders passed by Trial Court right from the start of case show the intentions of the respondent.

12. A perusal of the order sheets of the Trial Court would show that every kind of excuse available on the earth had been put forward for seeking adjournments and all tactics had been adopted to delay the proceedings. The issues in the case were framed on 1st June, 2000. The Court could record statement of the husband in examination-in-chief only on 30th January, 2001.Thereafter, the cross examination of husband was concluded on 22.11.2005 only,after this Court passed above stated order. In between respondent or her counsel did not appear in the Court on 27th August, 2001 even to receive the alimony paid by the husband. On 11th February, 2002, counsel for the respondent wanted the proceedings to be stayed on the ground that he had preferred a revision before the High Court, despite the fact that there was no stay granted. The Trial Court still adjourned the case for cross examination of the petitioner. On next date, on 20th March, 2002, none appeared for the respondent/wife neither his counsel appeared. The Court still did not proceed ex parte and re-listed the matter.

13. On 4th April, 2002, an adjournment was sought on the ground of her ailment. Several adjournments were sought on the ground that the matter may be settled. However, whenever the matter was fixed for cross examination of husband, instead of cross examining him the counsel for the wife had moved an application and sought adjournment on one or the other ground. Even when he cross examined, the cross examination was made in prolix manner to make it linger on. The counsel also sought adjournments on his personal grounds, sometime his brother-in-law was ailing, sometime he had to attend the school of his child, sometime on the ground that a relative had expired. The respondent had all along been not appearing in Court on one or the other ground.

14. The petitioner had filed number of petitions and appeals in this Court right from the beginning. Every petition filed in this Court was accompanied by the affidavits of the petitioner. Number of petitions along with affidavits filed by the petitioner as gathered from the record of this case are CM(M)1742/2004, CM(M)14/2007, CM(A)5724/07, CM(A)10747/07, RFA 230/07, CM(M)14428/07, CM(M)997/07 C.R.No.397/01 and CM(M)969/06.

15. It is evidently clear from the entire proceedings that the effort of the petitioner had been to see that divorce petition filed by husband does not proceed. The mandate of the legislature is that proceeding under Hindu Marriage Act should come to an end within six months.

16. The ground on which husband sought divorce is desertion. The petitioner/wife had an option to lead her evidence to show that she had not deserted and the fault lied on the side of the husband. Instead of leading evidence, appearing in the Court she had just seen to it that the case does not proceed.

17. The Supreme Court in M.R. Tyagi vs. Sri Devi Sahai Gautam Civil Appeal No. 3241/2006 decided on 2.8.2006 made following observations in respect of grant of repeated adjournments by Courts:

?............ at the same time we must impress upon the Courts that its approach, however liberal, must be in consonance with the interest of justice and fair to both the parties. Misplaced sympathy in favour of any of the parties results in injustice to the other party. The courts have the solemn duty to maintain a judicial balance. We must deprecate such irresponsible approach of Courts granting numerous and unnecessary adjournments in the strongest terms. The frequent grant of unnecessary adjournments has come in for very serious public criticism. It is not surprising that frequent adjournments are unnecessarily sought, but what is surprising is that Courts generously grant such adjournments, regardless of the fact that it results in delayed disposal of cases, involves loss of public time, increases the financial burden of the litigants, and tarnishes the image of the judiciary. It is high time Courts stop granting unnecessary adjournments. The High Courts must take serious note of adjournments freely granted, even if unnecessary, and as a follow up action call upon the judicial officers concerned, in appropriate cases, to justify the numerous and unnecessary adjournments granted.?

18. It is noteworthy that on her ground of illness while she sought adjournments, she did not move an application that she be examined on commission. Her plea that she was not in a position to come to the Court because she had urinary problem had been rightly disbelieved by Trial Court. The Trial Court also rightly struck off her defence on the ground that she was unwilling to appear in Court and unwilling to lead evidence.

19. I find that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The petition is dismissed with costs of Rs.50,000/-.

October 16, 2008

SHIV NARAYAN DHINGRA J. ak

http://www.indiankanoon.org/doc/1426499/

Tuesday, September 14, 2010

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

FULL TEXT AWAITED

Marriage between 1st cousins illegal.Live-in with cousin? Bombay high court on the fence

14 sep 2010

Can first cousins marry each other? Such a union, except for some communities, is void under the Hindu Marriage Act (HMA), 1955. However, while disposing of a habeas corpus petition filed by Inderpal Walia, 37, the Bombay high court on Monday said the decision of a girl to live with her cousin would be at her discretion.

In his petition, Walia said he fell in love with his first cousin Harmandeep Kaur, 19, when he met her in Amritsar in March 2008. He had also lived with Harmandeep as “husband and wife” at her parents’ house before they got married in Mumbai on January 21, 2009. Walia says though her parents initially agreed to their marriage, Harmandeep was forcibly taken away from him in September 2009.

Walia had pleaded before the court to allow Harmandeep to live with him since he fears his wife would be married off to an NRI. “Considering the changes in the modern world, the friendship and the union of the petitioner (Walia) with Harmandeep is a necessity and it is no more a kind of foolishness,” Walia’s petition stated.

A division bench of justices AM Khanwilkar and UD Salvi, however, refused to grant permission for their live-in relationship. “The court cannot be expected to put a seal on an arrangement which is not recognised in law,” justice Khanwilkar said. The judges held that the purpose of the habeas corpus petition was served as Harmandeep had been brought before the court and she was “hale and hearty”. The judges said the girl was an adult and she could take decisions on her own.

They also agreed that this was “not an ordinary case”.
Walia’s advocate, Bhavesh Parmar, told the court that Walia was not aware Harmandeep was his first cousin when they got married before a registrar in the Mira-Bhayander court. He got to know from legal experts that their marriage was null and void under Section 5 of the HMA after Harmandeep was taken away by her family. “I have advised my client to challenge the order in the Supreme Court,” Parmar said.

http://www.dnaindia.com/india/report_live-in-with-cousin-bombay-high-court-on-the-fence_1437597

---------

14 Sep 2010

MUMBAI: The Bombay high court on Monday rejected one Harmant Singh's plea that his "wife" Hardeep, who is also his first cousin, be allowed to live with him. The Hindu Marriage Act disallows marriage between first cousins.

"If the request was to be considered, it would be putting a seal of approval on a relationship which isn't permitted in law," said a division bench of Justice A M Khanwilkar and Justice U D Salvi. The judges allowed Hardeep to go with her parents. "She is an adult and free to take her own decisions," said the judges, adding that Hardeep could decide her plans in consultation with her parents.

Harmant's lawyer made repeated pleas the court ask Hardeep with whom she wished to go. The judges, however, pointed out that "the law doesn't permit you and her to stay together."

Additional public prosecutor Ajay Gadkari told the court that in a habeas corpus proceeding the scope was limited to producing the person concerned before the court and that they had brought Hardeep from Amritsar.

Section 5 of the Hindu Marriage Act bans, among other things, marriage between a brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. The marriage is void, unless the custom of the community permits it.

Harmant, who claimed to be a marine officer, said he had met Hardeep in Amritsar. They married at an Arya Samaj temple in Mumbai in January 2009. Nine months later, her family called her home on the pretext that her father was sick. Subsequently, he wasn't allowed to meet her. Harmant, admitted that she was his first cousin, and under the law the marriage was void.

(Names of the couple have been changed to protect their identities)

http://timesofindia.indiatimes.com/india/Marriage-between-1st-cousins-illegal-says-HC/articleshow/6550296.cms#ixzz0zV8IVhWs

Wednesday, August 4, 2010

Irretrievable breakdown of marriage as new clause for divorce – Bill amending the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

source ;- http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/marrge%20law%20as%20intro.pdf

AS INTRODUCED IN THE RAJYA SABHA

Bill No. XLI of 2010

THE MARRIAGE LAWS (AMENDMENT) BILL, 2010

BILL

further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

it enacted by Parliament in the Sixty-first Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

Short title and commencement.

1. (1) This Act may be called the Marriage Laws (Amendment) Act, 2010.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette.appoint.

CHAPTER II

AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

Amendment of section 13B.

2. In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), for the words, brackets and figure “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime”, the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 13C, 13D and 13E.

3. After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub- section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months’ in all) during which the parties resumed living with each other, but no other period during which the parties lived with
each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and
(b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would, in all the circum- stances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satis- faction to eliminate the hardship.

Restriction on decree for divorce affecting children
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 21A.

4. In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures and letter “or section 13C” shall be inserted.

Amendment of section 23.

5. In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures and letter “or in cases where the petition is presented under section 13C” shall be inserted.

CHAPTER III

AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954 – Act 43 of 1954.

Amendment of section 28.

6. In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), for the words, brackets and figure “On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime” the words, brackets and figure "Upon receipt of a petition under sub-section (1)" shall be substituted.

Insertion of new sections 28A, 28B and 28C.

7. After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:—

Divorce on ground of irretrievable breakdown of marriage.

‘28A. (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010] on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immedi-ately preceding the presentation of the petition.
(3) If the court is satisfied, on the evidence, as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce.
(4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.
(5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

Wife’s right to oppose petition on ground of hardship.

28B. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the
marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then,—
(a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and
(b) if apart from this section the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall
result in grave financial hardship to the respondent and that it would in all the circum- stances be wrong to dissolve the marriage, it shall dismiss the petition, or in an appro-priate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

Restriction on decree for divorce affecting children.

28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Explanation.— In this section, the expression “children” means—
(a) minor children;
(b) unmarried or widowed daughters who have not the financial resources to support themselves; and
(c) children who, because of special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.’.

Amendment of section 40A.

8. In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures and letter “or section 28A” shall be inserted.

STATEMENT OF OBJECTS AND REASONS

The Hindu Marriage Act, 1955 was enacted on the 18th May, 1955 to amend and codify the law relating to marriage among Hindus. Similarly, the Special Marriage Act, 1954 was enacted on the 9th October, 1954 to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The provisions of the said Acts have proved to be inadequate to deal with the issue where there has been irretrievable breakdown of marriage and therefore a need has been felt for certain amendments therein.

2. In view of the demand from various quarters for making irretrievable breakdown of marriage as a ground for divorce under the Hindu Marriage Act, 1955, the Central Government referred the matter to the Law Commission of India for its consideration. The Law Commission in its 71st Report titled "The Hindu Marriage Act, 1955 — Irretrievable Breakdown of Marriage as a Ground of Divorce" submitted in April, 1978 had examined the
issue in detail and recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decreee of divorce among the Hindus. Accordingly, a Bill, namely, the Marriage Laws (Amendment) Bill, 1981, further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, was introduced in Lok Sabha on the 27th February, 1981. However, before the Bill could be considered and passed by Lok Sabha, the Seventh Lok Sabha was dissolved on 31st December, 1984, and
hence the Bill lapsed.

3. Subsequently, the Hon'ble Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra (AIR 1985 SC 935) had pointed out the necessity to introduce irretrievable breakdown of marriage and mutual cosent as grounds for grant of divorce in all cases. Similarly in Naveen Kohli vs. Neelu Kohli (AIR 2006 SC 1675), the Hon'ble Supreme Court recomended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for divorce.

4. Further, the 18th Law Commission of India suo motu took up the mater and in its 217th Report titled 'Irretrievable Breakdown of Marriage —Another Ground for Divorce' presented to the Government in March, 2009 recommended that 'Irretrievable breakdown of marriage' should be incorporated as another ground for grant of a decree of divorce under the afore- said Acts.

5. Having regard to the recommendations of the Law Commission of India and the observations of the Hon'ble Supreme Court as aforesaid and the demand from various quarters, it is proposed to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 so as to provide for irretrievable breakdown of marriage as a ground of divroce thereunder subject to certain safeguards to the wife and affected children.

6. At present, a petition for grant of a decreee of divorce on the ground of mutual consent could be presented by both the parties to the marriage together before the court under sub-section (1) of section 13B of the Hindu Marriage Act, 1955 and similarly under sub-section (1) of section 28 of the Special Marriage Act, 1954. Under sub-section (2) of section 13B and that of section 28 respectively, the parties have to move a motion jointly not
earlier than six months after the date of presentation of the petition referred in sub-section (1) and not later than eighteen months after the said date for the said purpose. It has been observed that in several cases one of the parties do not turn up for filing the motion jointly with the other party under sub-section (2) of section 13B of the Hindu Marriage Act, 1955 or under sub-section (2) of section 28 of the Special Marriage Act, 1954, as the case may be, leading the party desirous of obtaining a decree of divorce hapless and remediless. In order
to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, it is proposed to amend sub-section (2) of section 13B of the Hindu Marriage Act, 1955 and sub-section (2) of section 28 of the Special Marriage Act, 1954, respectively, by doing away with the aforesaid condition of moving motion subsequently.

7. In case the wife happens to be the respondent in respect of a petition for grant of a decree of divorce on the ground of irretrievable breakdown of marriage under the proposed new section 13C of the Hindu Marriage Act, 1955 or under the proposed new section 28A of the Special Marriage Act, 1954, as the case may be, the wife is entitled to oppose the grant of a decree of divorce on the ground that a dissolution of the marriage will result in grave financial hardship to her. Similarly, provision has been made to restrict grant of a decree of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for the maintence of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage.

8. The Bill seeks to achieve the above objects.

NEW DELHI;M. VEERAPPA MOILY.

The 13th July, 2010.ANNEXURE
EXTRACTS FROM THE HINDU MARRIAGE ACT, 1955
( 25 OF 1955)
*****
13B. (1)   *****
(2)     On the motion of both the parties made not earlier than six months after the date
of the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been 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.
*****
21A. (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).
*****
23. (1) In any proceeding under this Act, whether defended or not, if the court is
satisfied that—
(a) any of the grounds for granting relief exists and the petitioner   except in
cases where the relief is sought by him on the 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
*****
then, and in such a case, but not otherwise, the court shall decree such relief accordingly.
*****
EXTRACTS FROM THE SPECIAL MARRIAGE ACT, 1954
( 43 OF 1954)
*****
28. (1)   *****
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the district court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized under this Act, and that the averments in the petition
Divorce by
mutual
consent.
Power to
transfer
petitions in
certain cases.
Decree in
proceedings.
Divorce by
mutual
consent.
78
are true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.
*****
40A. (1) Where—
(a) a petition under this Act has been presented to the district court having
jurisdiction by a party to the marriage praying for a decree for judicial separation under
section 23 or for a decree of divorce under section 27, and
(b) another petition under this Act has been presented thereafter by the other
party to the marriage praying for decree for judicial separation under section 23, or for
decree of divorce under section 27 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 petition shall be dealt with as specified in sub-section (2).
*****
Power to
transfer
petitions in
certain cases.RAJYA   SABHA
A
BILL
further to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
————
(Shri M. Veerappa Moily, M.P.)
GMGIPMRND—3365RS(S4)—30-07-2010.