This article is written by Harshita Agrawal. The article is an analysis of the landmark decision delivered by the Hon’ble Supreme Court in the case of Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967). It examines the validity of a marriage as per various customs and sections under the Hindu Marriage Act, 1955, along with the procedures of annulment outlined within the Act. The judgement is hereby trailed with the appeal made in the High Court’s initial ruling.

Introduction 

The case of Chandra Mohini Srivastava v. Avinash Prasad Srivastava (1967), is very much important in the context of legal disclosures, particularly regarding how evidence of adultery is handled in divorce and the judicial separation proceedings. In this case, the respondent filed a suit against his wife, alleging her involvement in an extramarital relationship and committing adultery. Initially, the trial court dismissed the petition, but the Allahabad High Court, upon appeal, held that the wife was not living in adultery. But the evidence presented by the third party indicated the fact that there had been sexual intercourse between the wife and the co-respondent after their marriage in 1955 leading the court to grant judicial separation under Section 10(1) of the Hindu Marriage Act, 1955. The case also highlights the implication of remarriage during the appeal process as the situation raised here complex legal questions about the legitimacy of the second marriage and the subsequent child. The judgement of the Supreme Court in this case sets a precedent for similar future cases notifying its reference in the further family law cases. 

Details of the case

Name of the case

Chandra Mohini Srivastava v. Avinash Prasad Srivastava

Name of the court

Supreme Court of India

Download Now

Date of judgement

13 October, 1966

Citation

1967 AIR 581, 1967 SCR(1) 864

Bench

Justice K. N. Wanchoo and Justice G. K. Mitter

Authored by

Justice K. N. Wanchoo

Name of the parties

Petitioner: Chandra Mohini Srivastava

Respondent: Avinash Prasad Srivastava

Statutes and laws involved in the case

Multiple statutes are involved in the above-mentioned case, clearly indicating the marriage annulment processes depending on various laws and sections applicable under the Act. The legal proceedings addressed in the case of Chandra Mohini Srivastava v. Avinash Prasad Srivastava (1964) were not only contingent upon the judgement and appeal laid therein but also concerns indulging in the status of a child along with the validity of one’s marriage as per customs and rituals. The primary Acts involved in the judgement include:

Background of Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967)

In the case of Avinash Prasad Srivastava v. Chandra Mohini Srivastava (1964), an appeal was filed by the respondent against the judgement and decree issued by the Civil Judge of Bareilly, which dismissed his petition under Section 10 and Section 13 of the Hindu Marriage Act, 1955. The appellant had sought dissolution of the marriage and judicial separation on the grounds of adultery, cruelty and desertion by his wife. The case presented the fact that both parties got married in 1955, and a son was born in 1957. The appellant alleged that his wife not only, without any reasonable justification, been withholding her society and cohabitation from him but also had been engaged in adultery with the co-respondent, Chandra Prakash Shekhar. He also claimed the recovery of ornaments and garments worth Rs. 2000 from his wife. The co-respondent in this case did not appear, and the respondent denied the allegations. The evidence of adultery was found insufficient by the court, but the proof of emotional involvement was also established between the wife and the co-respondent. Since the respondent denied having and society and cohabitation, the mental cruelty was accepted as a ground by the court. The witnesses of the case testified to the desertion of the wife as claimed by the appellant. After considering all the above circumstances, the court granted the appellant a divorce, citing exceptional hardship and depravity. However, the claim of the appellant relating to the recovery of ornaments and garments was dismissed by the court, and the marriage was dissolved immediately, with no costs. 

Facts of Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967)

In the landmark judgement of Chandra Mohini Srivastava v. Avinash Prasad Srivastava (1967), the first respondent requested the revocation of special leave granted to the appellant, citing grounds that the High Court’s order of dissolving the marriage between the appellant and initial petitioner was effective immediately. The respondent also claimed that the petitioner filed for the special leave petition without notifying him of her intention to contest the Allahabad High Court’s decision. Since the appellant did not request any kind of suspension order from the court, the respondent, in compliance with the High Court’s ruling, got remarried in 1964. He also claimed to have been notified of a special leave grant after his marriage and thus became aware of the appeal of the judgement of the Allahabad High Court. The respondent stated that due to the petitioner’s negligence in notifying him of the appeal, he got remarried, and a child was born. Therefore, he requested the court to revoke the grant of special leave, not to question the legitimacy of his child.

The petitioner opposes the statements provided by the respondent mentioning the fact that it was not her responsibility to notify the respondent of the intention to seek special leave. The argument led to the respondent’s duty to ensure that no further legal action had been taken by the petitioner after the order of the court. After knowing the situation, the petitioner argued that the respondent clearly took the risk of remarrying without confirming the legal status. She also stated that an application for revocation of special leave was filed in delay when the appeal was scheduled for hearing.

Issued raised

  • Whether the appellant had treated the first respondent with such cruelty as to fall within the scope of clause (b) of section 10(1)?
  • Whether the appellant actually stated the truth about sending the letters or one can comprehend such denial, especially in the context of facing a divorce petition based on allegations of adultery.
  • Whether the divorce can be granted under Section 13(1)(viii) of the Hindu Marriage Act, 1955?
  • Is a party’s marriage permissible if a divorce petition is under special leave, and would such marriage contravene any law? 

Arguments of the parties

Appellant

  • The appellant denied that she had been living in adultery.
  • She mentioned not having any kind of illicit relationship with the co-respondent.
  • She also denied receiving any letters from the co-respondent and has also denied that she ever sent any correspondence to the co-respondent.
  • She had clearly opposed the application of the respondent, stating that it was not her responsibility to notify the first respondent of her intention to seek special leave from the court.
  • She stated that it was the duty of the first respondent only to make sure that no further actions had been taken before the decision to remarry as per Sections 15 and 28 of the Act.  

Respondent

  • The respondent stated that the special leave granted to the appellant should be revoked as the High Court granted divorce to the first respondent, resulting in the dissolution of the marriage between the appellant and the first respondent.
  • The respondent had already been married when the special leave was granted to the appellant, and also, a child was born to his new wife, questioning the legitimacy of the child.
  • He also contended that he should be notified about the petition or the acceptance to grant the special leave as it was the duty of the appellant to inform him so. 

Important laws referred in Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967)

Section 10 of Hindu Marriage Act, 1955

As per Section 10 of the Hindu Marriage Act, 1955, judicial separation is available to couples married under this Act. The spouse can file a petition for judicial separation and can claim the relief and once the court grants the order, they are no longer able to cohabit.

Judicial Separation is a legal mechanism which gives some time for self-analysis to both the parties of a disturbed married life. It allows both husband and wife to reconsider the future of their relationship while living apart, offering them the necessary space and independence to make informed decisions about their future and it is a last step before pursuing a legal dissolution of the marriage.

Any spouse who feels aggrieved by the actions of the other can file a petition for judicial separation in a District Court under section 10 of the Hindu Marriage Act, 1955. To proceed, the following conditions should be met:

  • The marriage must be in accordance with the Hindu Marriage Act, 1955
  • The respondent and the petitioner should be resided within the jurisdiction of the court where the case was filed.
  • The spouse must have lived together for a particular period of time before filing the petition.

The case law of Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) states about the law of judicial separation where the petition for divorce must be filed only after once the order of judicial separation has been passed. The court cannot file a decree of judicial separation in respect of the insufficient grounds where the evidence was not in accordance with the support of the argument.

In the case law of Vinay Khurana v. Shweta Khurana, (2022), the Delhi High Court observed that judicial separation and divorce are completely different although they both are provided on similar grounds. Judicial separation does not dissolve the marital bond between the spouse whereas divorce terminates the marriage granting both the parties to remarry. Hence, in this case the court held that the earlier decision of the Family Court was at fault as it granted a decree for judicial separation rather than divorce.

Section 13 of Hindu Marriage Act, 1955

As per Section 13 of Hindu Marriage Act, 1955, divorce is the dissolution of a marriage between two parties. In recent times, the incidence of divorce has risen significantly for various reasons. Under the Hindu Marriage Act, 1955, there are various grounds under which a petition for divorce can be filed under the Act:

  • Voluntary Sexual Intercourse – if either spouse engages in voluntary sexual intercourse with someone other than their spouse after the marriage has been solemnised, the aggrieved spouse can file for divorce in a court of law.
  • Cruelty – This is the primary reason of divorce among the parties to the marriage. Domestic violence and cruelty have surged in recent years. As per this section, if one spouse subjects the other to cruelty following the process of marriage, the aggrieved party is entitled to file for divorce in a court of law.
  • Desertion –  Desertion means leaving the partner for a period of time without providing any reason. Under this Act, if one spouse has deserted the other for a continuous period of at least two years immediately before the filing of the divorce petition, then that person can file for divorce under the court of law.
  • Unsound Mind – According to this Act, if a spouse is of unsound mind and cannot be cured, or suffers from a severe or temporary mental disorder that makes it impossible for the other spouse to live peacefully. In such a case, that person can file a suit for divorce under this section.

In the case law of Revathi v. Union of India,(1988), the Supreme Court held that under Section 497 of IPC, a husband cannot prosecute his wife for adultery. The law does not permit the husband to charge his wife with adultery, nor does it permit a wife to prosecute her husband for infidelity. Therefore, both the husband and the wife have no legal right to use the criminal law against each other for acts of disloyalty.

Article 136 of the Indian Constitution

Article 136 of the Indian Constitution states about special leave to appeal by the Supreme Court. Notwithstanding anything contained in Chapter IV Part V of the Constitution of India, the Supreme Court retains the authority to, at its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order issued by any court or tribunal within the territory of India. However, it is also important to note that the said provision shall not apply to any judgement, decree, sentence or order passed by courts or tribunals established under laws pertaining to the Armed Forces.

In the case law of Pritam Singh v. The State, (1950), the Supreme Court held that it should not interfere with the High Court’s decision unless there are exceptional circumstances. Once an appeal is admitted the appellant can challenge any question of law deemed incorrect by the High Court. The court should also maintain a uniform standard when granting special leave to appeal.

Final judgement in Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967)

The judgement of the Supreme Court was delivered by Justice Wanchoo. In its ruling, the court held the provisions of Section 15 of the Hindu Marriage Act, 1955, which clearly stated that a spouse can only legally enter into a new marriage after the expiry of the appeal period or if the appeal has already been dismissed. In his opinion, the court held that both parties were aware that the appeal was still pending. Since the first marriage was not dissolved and the wife’s initial marriage was still valid at the time of the second marriage, the marriage between the wife and her current husband is in contravention of the Act as per Section 5(i) and, therefore, is violated. The court also concluded that no such cruelty was being performed as mentioned under Section 10(1)(b).

Grounds on which special leave cannot be revoked

As per Section 28 of the Hindu Marriage Act, 1955, all decrees and orders issued by the court in any proceedings may be appealed in accordance with the prevailing laws, as if the decrees and orders of the court were made in the exercise of its original civil jurisdiction. Section 15 states that a marriage is said to be dissolved by a decree of the divorce, and there is no right of appeal against the decree or if there is a right of appeal. Still, the time for appealing has expired without an appeal being presented, or if the appeal has been presented but dismissed, it shall be lawful for either party to marry again. The provisions of the sections made it clear that after a marriage has been dissolved, a party can legally marry only if there is no right to appeal against the divorce decree or if there is such a right to appeal, the time has expired without an appeal being presented, or the appeal has already been presented but is dismissed.

Even though the provision of Section 15 does not directly apply, it may not have been unlawful for the first respondent to marry immediately after the High Court’s decree. The Supreme Court, in this matter, stated that it was the duty of the first respondent to make sure whether an application of special leave has been filed with the Supreme Court. If he does so, he took a risk and cannot now request the Supreme Court to revoke the special leave on these grounds.

For the consideration of the legitimacy of the child born, the court refrained from indulging into this question extensively, except to mention that in such a scenario, Section 16 of the said Act may come to provide aid for the child. The court also declined to revoke the special leave based on the grounds presented by the first respondent and hereby dismissed his application for revocation of special leave.

Rationale behind the judgement

On the substance of the appeal, it has already been stated that both the High Court and the trial court unanimously agreed that the appellant was not engaged in adultery at the time the petition was filed. As per section 10(1)(b) of the Act, both courts have agreed that no such evidence of cruelty would fall within this reference. The High Court also found that the adultery had not occurred between the appellant and the co-respondent in 1955, citing the two letters were purposely written by the co-respondent to the appellant. As per the case, the co-respondent was married to the appellant’s cousin and he was not a stranger to her; thus, correspondence between them would not be unexpected.

However, in her statement under oath, the appellant denied having any illegitimate relationship with the co-respondent. The attempts made by the first respondent to establish illicit intimacy between the appellant and the co-respondent have been unsuccessful, as both the courts rejected the evidence presented in this regard. Against this backdrop, the High Court can only rely on the validity of the evidence of the two letters, as it is only the sole evidence in proof of adultery in 1955. The court also stated that the mere fact that a male relative wrote such letters to a married woman does not establish the fact of having any sort of illicit relationship. Also, the letters clearly directed that whatever was written in them could not predict the fact that the same kind of relationship was also reciprocated by the appellant. Also, the time discussing the relevance of these letters does not prove that there was any kind of sexual intercourse between the appellant and the co-respondent. 

Analysis of Chandra Mohini Srivastava vs. Avinash Prasad Srivastava (1967)

Even though it may not have been legally prohibited for the respondent to remarry immediately following the High Court’s decree, as there is no right to appeal from such a decree to the Supreme Court in these matters, the respondent still had an obligation to ascertain whether the application had been filed by his wife for special leave to appeal to the Supreme Court. He should not be marrying in a hurry after the High Court’s decree, depriving his wife of a chance to petition the Supreme Court for special leave. By doing so, he took a risk already and cannot ask the Supreme Court to revoke the special leave on these grounds.

The High Court’s order to grant the divorce must be reconsidered. Even though the two letters assumed that there was some sort of illegitimate relationship between the wife and the co-respondent, the High Court made an error in granting a divorce under Section 13(1)(viii) as amended by the U.P. amendment.

A decree for judicial separation must first be obtained before a divorce decree is granted under this provision. Under the amendment, the decree of divorce is only followed if two years have passed or if there are circumstances of special hardships on the part of the other party. The court cannot immediately grant a divorce which is based on these special hardships without the decree of judicial separation passed, even if such a decree has been obtained on the grounds specified in Section 10(1)(f).

There were insufficient grounds in favour of the respondent for the degree of judicial separation as the evidence of the two letters cannot determine the fact that there was any kind of sexual relationship between the wife and the co-respondent.

The respondent, in his statement under Order X, Rule 2 of the Civil Procedure Code, 1908, admitted that he was well aware of the illicit relationship between his wife and the co-respondent even in 1955 or 1956, and he continued to live with her and his son who was born in 1957. He also tried to reframe his statement in his testimony that he was suspicious only, even though he admitted to indulging sexually with her until October 1958. The fact that the husband continued to cohabit with his wife even after discovering infidelity is sufficient to constitute condonation. He also admitted that keeping her with him was only because of the insistence of his friends, further indicating condonation through forgiveness, confirmed or reinforced by continued cohabitation. 

Conclusion

The concept of condonation involves forgiveness that is either confirmed or made effective by reinstatement. This is a case of desertion, and in such situations, whether judicial separation is being claimed on the grounds of Section 10(1)(f), the fact that the husband was well aware of her alleged infidelity and continued to cohabit with his wife stating that it was only the insistence of his friends is sufficient to establish condonation. Therefore, the court is of the opinion that the first respondent is not entitled to claim the decree of judicial separation and is also in favour of allowing the appeal along with setting aside the High Court’s order and reinstating the trial court’s dismissal of the petition from the husband. It was also concluded that the wife should be awarded costs by her husband. 

Frequently Asked Questions (FAQs)

What are the remedies available to the party under Hindu Marriage Act, 1955?

The legal remedies available to the party regarding marital disputes are restitution of conjugal rights, judicial separation and divorce. The judiciary in India is urging for the irrevertible breakdown of marriage as a separate ground for divorce. It was also held that even when a petition is submitted to the court, the parties have always the option of conciliation.

What are the grounds for judicial separation under Hindu Marriage Act, 1955?

As per the Hindu Marriage Act, 1955, judicial separation is granted by the court on specific grounds and legally recognized reasons such as adultery, cruelty, desertion, either of the parties is of unsound mind and suffering from leprosy or venereal disease of incurable form.

During the judicial separation, the spouse remains married but the legal obligation and duties towards each other are suspended. It offers a structured and legally recognised way for couples experiencing significant marital challenges to formally separate while maintaining their marital status.

What are the requirements for divorce under Hindu Marriage Act, 1955?

As per Section 13 of the Hindu Marriage Act, 1955, parties can seek divorce by mutual consent. A joint petition should be filed before the district court from both the parties for dissolution of marriage, based on Marriage Laws (Amendment) Act, 1976, The essential requirements for parties seeking divorce are that they should be living separately for at least one year and cannot live together, also the agreement to dissolve the marriage should be mutual.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here