This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the concept of matrimonial relief and its bars mentioned under various enactments in India. 

It has been published by Rachit Garg.

Introduction

When you change the way you look at things, things you look at change.”

Wayne Dyer

Marriages are a lifetime worth of promises, trust, commitment, patience, love, honesty, and much more. These above-mentioned words describe a good marriage but many times circumstances are such that marriages just become intolerable. When both the wife and the husband have separated, there’s always a question of what will I get from the divorce? Will I get compensated or not? Yes, in most cases you will. This compensation will be in the form of matrimonial relief.

The concept of matrimonial relief

In India, a marriage is considered an eternal bond between two people. In the Hindu culture, the wife was seen as a Dharampatni, without whom the husband couldn’t perform certain duties or yajnas (sacrifices). As societies developed, the mindset of the people started changing. Marriage was considered a contract rather than a union of two souls. In the latter half of the 19th century, the concept of divorce was also introduced. In 1955, the Hindu Marriage Act was introduced, which defined marriage as a contract between two people that can be terminated at the will of either of the parties or mutually, subject to certain conditions. These conditions are known as matrimonial relief. This means that there are certain remedies available to both parties if the marriage goes sideways. However, these remedies have certain legal restrictions or bars.

Causes for matrimonial disputes

The Hindu Law lays down certain theories of divorce, one of which is called the ‘fault theory’. This theory states that a marriage can be terminated if either of the spouses commits a matrimonial offence. So what makes the spouses commit an offence that may end their marriage? Mentioned below are some of the basic and common causes for matrimonial disputes.

Intimacy

Intimacy or romance is one of the most important factors leading to a successful marriage. The desire for sex is natural, and if that’s missing in a relationship then one may feel unloved and the connection tends to break.

Control

Controlling the relationship is bad. Yes, there are many things which you might agree with and your partner might not but that doesn’t give you a right to make things go your way by controlling him/her.

Communication

The power of conversation can speak volumes about your marriage. How open you are with your partner does matter. Yes, time is a factor but you can always adjust for your loved ones.

Infidelity

Loyalty is an important factor in a marriage. You might get attracted to someone other than your wife or husband, but everything in this world has certain limits.

Trust

Lack of trust between spouses can lead to misunderstandings and in the end, divorce. So always trust your partner. 

Matrimonial remedies in India

The Hindu Marriage Act, 1955(HMA) and the Special Marriage Act, 1954(SMA), are perhaps the two most important legislations governing marriage and divorce in India. Section 9 to Section 13 of the HMA and Section 22 to Section 27 of the Special Marriage Act, 1954 talk about certain matrimonial remedies which are as follows:

Restitution of conjugal rights

Section 9 of the HMA and Section 22 of the SMA state that when either the wife or the husband, without reasonable excuse decides to withdraw from the society of his/her spouse, he/she may apply by petition for restitution of conjugal rights and if the court is satisfied that there is no legal ground on why the application should not be granted it may pass a decree for the restitution of conjugal rights to such party. Hence, this simply means that the person who has withdrawn from society without any reasonable excuse shall have to prove his/her withdrawal.

The ingredients of this provision are:

  • The withdrawal of the respondent from the company of the petitioner.
  • Such withdrawal is without any lawful ground.
  • The Court must be satisfied with the statements made in the petition.

The basic rule of matrimonial law is that the spouse is at the comfort of the other spouse. The court must grant a decree for restitution of conjugal rights after either spouse has abandoned the company of the other spouse. The wife can apply for restitution of conjugal rights if the husband deserts her or fails to perform his marital obligations. 

How to apply for restitution of conjugal rights

The decree for restitution of conjugal rights can be granted to either the husband or the wife. The process to be followed by the spouses is as follows:

  • The aggrieved party shall file a petition for restitution of conjugal rights to the District Court, which will later be transferred to the High Court.
  • Both parties must attend the counseling gatherings of the Court which will be held for a duration of 4 months.
  • The Court then decides whether to grant the provision for restitution of conjugal rights to the aggrieved party after examining the counseling sessions and the statements produced by the parties.

On what grounds will the court not pass the order for restitution of conjugal rights

The court cannot pass the order for grant of restitution of conjugal rights if:

  • A reasonable excuse was given by the petitioner for withdrawal from society.
  • Any ground on which the respondent could have asked for nullity of marriage, judicial separation, or divorce.

In the case of Sushila Bai v. Prem Narayana (1985), the husband had deserted his wife. As he had withdrawn from society, the wife filed for restitution of conjugal rights which was allowed by the Court. The Court observed that if the spouse has a valid reason to withdraw from society, it will be a defence for this provision.

Judicial separation

Section 10 of the HMA and Section 23 of the SMA states that either party may file a petition granting judicial separation on certain grounds of divorce specified in Section 13 and Section 27 of the HMA and SMA respectively. The traditional English Law mentions certain grounds for judicial separation which are adultery, cruelty, and desertion. Both these Sections might sound the same but there is a certain minute difference between the two. Under the Hindu Marriage Act, desertion and cruelty are not grounds for dissolution of marriage but only for seeking judicial separation whereas, under the Special Marriage Act both desertion and cruelty are grounds for dissolution as well as judicial separation. The provision of judicial separation gives the right to live separately. If there is no cohabitation between husband and wife after one year from passing the decree for judicial separation, the parties can apply for divorce. In the case of Smt. Sandhya Sen v. Sanjay Sen (2021), the Court observed that in cases where divorce is by mutual consent, the provision of judicial separation cannot be granted mechanically.

Void and voidable marriages

Section 11 of the HMA and Section 24 of the SMA states that any marriage which does not fulfill any of the conditions mentioned below shall be void. These conditions are:

  • Neither party should have a spouse living at the time of marriage.
  • Both parties should not come within the degrees of prohibited relationship.
  • Neither party shall be sapindas of each other.
  • The girl should be above 18 years and the boy above 21 years of age.

Section 12 of the HMA and Section 25 of the SMA talk about voidable marriages. Voidable marriages are those, which can be canceled by any one of the parties to the marriage. The marriage shall be valid until opposed by one of the parties in Court. Following are the grounds due to which marriages can be held voidable:

  • Impotency
  • Unsoundness of mind
  • Consent obtained by force or fraud
  • If the wife is pregnant by some other person at the time of marriage.

There is a slight difference between Section 12 and Section 25 due to a change of words. Section 25(iii) states that the consent of either party is obtained by fraud or coercion mentioned under the Indian Contract Act 1872, whereas, marriage is not a civil contract, and fraud or coercion mentioned under the Contract Act, is inapplicable to the Hindu Marriage Act.

Divorce

Section 13 of the HMA and Section 27 of the SMA, talks about divorce under Hindu Law. Both these provisions lay down certain grounds, which shall lead to divorce between the spouses. These grounds are:

  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Mental disorder
  • Leprosy
  • Mental disorder
  • Venereal disease
  • Renunciation
  • Presumption of death

This Section also states certain grounds of divorce for which a  petition can only be filed by the wife. They are:

  • If the wife is subjected to rape, sodomy, or bestiality.
  • If the husband has remarried during the lifetime of the previous wife.
  • If the girl had married at the age of 15 years and renounced the marriage before turning 18 years old, she can file for divorce.

Is there any difference between judicial separation and divorce

Both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 talk about judicial separation and divorce separately. But their meaning and scope sound similar. Hence, there remains confusion as to whether both these provisions are the same. Firstly, they are not the same. A divorce ends the marital ties completely whereas, under judicial separation, the spouses are relieved from their marital ties for a temporary period. Further, the petition for judicial separation can be filed at any time after the marriage whereas a divorce petition can only be filed after one year of marriage. A divorce cannot be converted to judicial separation but judicial separation can be converted to divorce as during judicial separation the spouses might feel like filing for divorce.

Bars to matrimonial relief under Hindu Law

The Hindu Marriage Act, 1955

The remedies mentioned in the Hindu Marriage Act, 1955 have certain bars which must be crossed in order to get matrimonial relief. These bars are based on the Doctrine of Equity. This doctrine states that “One who comes to equity must come with clean hands”. This means that the person seeking matrimonial relief must prove the fault of the other party and also cross the bars to matrimonial relief. This maxim examines the past conduct of the aggrieved party and ensures that he/she does not take advantage of his/her wrong.

The bars to matrimonial relief have been defined under Section 23 of the HMA. This provision states that if the aggrieved party seeking relief under any of the bars mentioned from clause (a) to (e) of Section 23(1) of the Hindu Marriage Act is in contravention to any of these clauses, then such grant for relief shall be quashed. Any order passed by the Court against these bars will be null. These bars are mentioned below:

Burden of proof

The doctrine of strict proof is recognized in matrimonial cases which are civil in nature. The burden of proof in matrimonial cases is two-fold. In divorce proceedings, the aggrieved party has the burden of proof relating to allegations, maintenance, custody of the children, etc. Whereas, while seeking matrimonial relief, the spouses must prove the fault of the other party. In the case of P.Mohandas Panicker v. KK Dakshyani (2005), the Court observed that in a matrimonial proceeding, the burden of proof must lie on the petitioner who has agreed to the facts, and not the respondent who has denied it. According to the doctrine of strict proof, the petitioner has to prove his case beyond a reasonable doubt. In the case of Dastane v. Dastane (1975), the Court observed that the burden of proof need not be beyond a reasonable doubt.

Taking advantage of one’s own wrong

If the aggrieved party is taking advantage of his wrong, then the Court shall not grant matrimonial relief under Hindu Marriage Act. This provision was exclusively enacted under the Hindu Marriage Act, 1955.

Accessory

Section 23(1)(b) mentions the term “accessory”. This concept is mainly used in criminal cases. Accessory means participating in a criminal or immoral act. Hence, if the petitioner is in any small way involved or helping the respondent in an immoral or criminal act, matrimonial relief shall not be granted. The petitioner shall be an accomplice to the crime. This bar applies only to adultery under the Hindu Marriage Act.

Connivance

Connivance, like accessory, is involvement in an immoral or wrongful act. In accessory, the petitioner is guilty of helping the respondent in committing the crime whereas, in connivance, the petitioner encourages the wrongful act of the respondent. Connivance is the anticipatory willing consent given by the petitioner to a wrongful act. In such a case, the petitioner will not be elgible for relief.

Condonation

Condonation is the forgiveness of the crime committed by the offender. Hence while granting relief, the Court has to examine whether the act committed by the respondent in case of cruelty or adultery is not condoned/erased by the petitioner. It is assumed that once the act is condoned, the offender will not repeat it. The two main ingredients of condonation are forgiveness and reinstatement.

Collusion

Section 23(1)(c) of the HMA, mentions the bar of collusion. Collusion is an absolute bar under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Collusion is an agreement between the parties for obtaining matrimonial relief by deceiving or misrepresenting the court or producing false evidence. The only exception to this bar is divorce by mutual consent. The burden of proving to the court that there is no collusion on the part of the spouses rests with the petitioner. The HMA has abolished this bar in cases where marriages are null and void, but it is available under the Special Marriage Act.

Delay

Delays are never tolerated. It is quite natural to say that unnecessary delays are a bar to matrimonial relief. Likewise, the burden of proving that the delay was not intentional falls on the petitioner. This bar is based on the doctrine of Laches which states that in a civil dispute, a party may not be allowed to file a suit due to an unreasonable delay.

Other legal grounds

Section 23(1)(e) states that matrimonial relief shall not be granted if there is any other legal ground restricting matrimonial relief. This is a residuary bar.

Reconciliation

Section 23(2) imposes a duty on the Court to make an attempt to bring about reconciliation between the parties. The reconciliation shall not be applicable in instances where divorce is on the grounds of leprosy, conversion, insanity, venereal disease, renunciation, or presumption of death.

Irretrievable breakdown of marriage as a bar to matrimonial relief 

The Law Commission in its 71st report in 1980, examined the existing grounds of divorce under Hindu law and recommended the introduction of a new ground, i.e., irretrievable breakdown of a marriage, stating that either of the spouses can file a petition for dissolution of marriage on the ground that the marriage has broken down irretrievably. The Commission further recommended the bar to this ground of divorce, which is as follows:

  • If the wife is the party against whom the petition for dissolution of marriage on the ground of irretrievable breakdown of marriage is filed, then she can reject this grant on the ground that the dissolution of marriage will result in financial hardships and struggles.
  • If a grant for opposing the decree for dissolution of marriage is filed, it is the duty of the court to examine the facts and circumstances of this case, the interests of both the parties and the interests of their children if any. If the court finds that the dissolution of marriage shall result in financial hardships, it shall dismiss the petition or stay the proceedings until arrangements to overcome financial hardships have been made.
  • Further, the court shall not pass a decree for dissolution of marriage on the ground of irretrievable breakdown of marriage, until adequate provisions for the maintenance of children have been made, depending on the financial capacity of the parties to the marriage.

Further recommendations made by the Law Commission were that this bar to matrimonial relief, shall not apply or come under the scope of Section 23(1)(a) of the Hindu Marriage Act, 1955. The Government had accepted these recommendations of the Law Commission. However, due to strong opposition, these recommendations lapsed.

Important case laws

In the case of Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel (2021), the husband (respondent) had filed for divorce under Section 13 HMA on the grounds of cruelty, whereas the appellant (wife) filed a counterclaim stating that she and her son were deserted by the husband and were not paid enough maintenance. Currently, the husband is cohabiting with another woman and has married her. Hence, the wife has argued that the marriage between her husband and the woman is illegal and void and the son born through the marriage is illegitimate. The Supreme Court observed that such a relief cannot be granted under Section 23A of the HMA. By way of counterclaim, only those reliefs mentioned under Section 9 to 13 of the HMA can be granted.

In the case of Smt. Leela v. Dr. Rao Anand Singh & Anr. (1963), the respondent (Anand Singh) had already married Smt. Roopwati Devi before his marriage with the appellant (Smt. Leela). The appellant was a Christian man. The marriage was not solemnized according to the Christian tradition, so the appellant had to convert to Hinduism. A petition was filed by the appellant on the grounds that the respondent had concealed the fact of his first marriage, treated her with cruelty and had withdrawn from her society. The respondent accepted the fact of his marriage but denied the other allegations. The issues before the Court were 

  • Whether the respondent concealed the fact about his first marriage? 
  • Whether the appellant was treated with cruelty?
  • Whether there was an unreasonable delay under Section 23(b) of the Hindu Marriage Act 1955?

The contention of the respondent was that the petition was filed very late and there is an unnecessary delay under Section 23(1)(d) of the HMA. The Court observed that the delay on the part of the appellant is not improper and cannot be rejected.

Special Marriage Act, 1954

Section 34 of the Special Marriage Act, 1954 lays down that the court shall grant relief to the aggrieved party after examining the bars mentioned under this provision, which are as follows:

  • Accessory
  • Connivance 
  • Condonation 
  • Collusion
  • Unnecessary delays
  • Burden of proof
  • In cases where divorce is obtained by mutual consent, the court shall see whether the consent has not been obtained by force or fraud
  • Any other legal grounds
  • Reconciliation

The provisions mentioned under these enactments are similar. So why are there two different Acts? The Hindu Marriage Act is applicable only to Hindus living in India whereas the SMA is applicable to all the citizens in the country, irrespective of their caste, religion, ethnicity, etc. Further, marriage under the HMA is solemnized by the ancient Hindu traditions and rituals, whereas specific rituals or traditions are not required for solemnizing marriage under the SMA. Hence although similar, there are minute differences between these two enactments.

In the case of K. Ramaswamy v. Esther Johney (1987), the spouses had married according to the Special Marriage Act, 1954 as the appellant (Ramaswamy) was a Hindu and the respondent (Esther Johney) was a Christian. The appellant alleged that their marriage was not valid because he was coerced for the marriage by the respondent’s family members. He further alleged that during the time of the marriage, the respondent was below 18 years old so the marriage should be declared void and claimed relief under Section 34. The respondent denied all the allegations. The District Court Judge observed that the appellant cannot claim relief under this Act because there was an unnecessary delay in filing the petition. The case went to the Madras High Court, which observed that the appellant had delayed the filing of the petition by more than 2 years so there had been an unnecessary delay on his part. As unnecessary delay is a bar to matrimonial relief under the SMA, the appellant’s grant for relief was rejected.

Bars to matrimonial relief under Personal Laws

Bars to matrimonial relief are not mentioned under the Muslim Personal Law, and there are no provisions regarding the same. However, the Indian Divorce Act 1869, and the Parsi Marriage and Divorce Act 1936, which govern the provisions of marriage among Christians and Parsis respectively, do mention certain bars to matrimonial relief, which are as follows:

The Indian Divorce Act, 1869

This Act was the first enactment that introduced bars to matrimonial relief in India. This is the only law in India that regulates divorce among Christians. These bars are as follows:

Section 12 of the Act states that the court on receiving the petition for dissolution of marriage shall examine whether the petitioner has been an accessory to any act, or in connivance, or has condoned the act, or is going through the said marriage, or has committed adultery. The court shall also look into any counterclaims if any, made against the petitioner.

Section 14 states that the court on finding that the petitioner does not fulfill the requirements of any of the bars mentioned above can pass a decree to dissolve the marriage. However, the court shall not pass the decree if the petitioner has been guilty of adultery, cruelty, desertion, or has committed unreasonable delay for filing the petition.

The Parsi Marriage and Divorce Act, 1936

This Act governs marriage and divorce among the Parsis in India. A Parsi marriage is considered a contract that shall be valid through the Ashirwad ceremony. Section 35 of the Act, mentions the bars to matrimonial relief. If a suit is filed under Section 30, Section 31, Section 32, Section 32A, and Section 34, that talk about matrimonial remedies and the Court is satisfied that any of the bars mentioned below are not fulfilled, then the Court shall pass a decree granting matrimonial relief. These bars are:

  • Annulment
  • Condonation
  • Collusion
  • Connivance
  • Reasonable delay
  • Any other legal ground

Summary

Let us summarize all the bars to matrimonial relief mentioned above:

BARS TOMATRIMONIAL    RELIEFHINDU MARRIAGE ACT, 1955SPECIAL MARRIAGE ACT 1954INDIAN DIVORCE ACT, 1869PARSI MARRIAGE AND DIVORCE ACT, 1936
AccessoryOnly in cases of adulteryOnly in cases of adulteryOnly in cases of adulteryUsed in a general sense
ConnivanceOn the ground of adulteryOn the grounds of adulteryOn the grounds of adulteryGeneral bar
CondonationOn the grounds of adultery and crueltyOn the grounds of adultery and crueltyOnly adulteryApplies to all matrimonial reliefs
Burden of proof Applicable to all remediesApplicable to all remediesApplicable to all remediesApplicable to all remedies
Taking advantage of one’s own wrongApplicable    N/A    N/A    N/A
CollusionNot applicable to a petition for declaring a marriage null and voidAll remediesOnly in case of divorceAll remedies
Unreasonable delayAll remediesAll remediesOnly in case of divorceAll remedies
Legal grounds Residuary barResiduary bar    N/AResiduary bar

Conclusion

Matrimonial relief in India is a complex topic. All these bars mentioned above are absolute under all Indian personal laws. Earlier, these bars were applicable for seeking relief only for the dissolution of marriage. However nowadays with the introduction of new bars like collusion, taking advantage of one’s wrong, etc. their scope has extended to all matrimonial remedies. The only motive of imposing these bars is that the spouse who seeks relief must have a genuine reason and should not have selfish interests. Hence the burden of proving not just the respondent’s guilt, but also his/her innocence is on the party seeking relief.

Granting matrimonial reliefs under the Indian personal laws can be a very difficult task for the Courts with so many aspects to look at, so the Courts need to be vigilant and examine each case thoroughly.

References


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