Qs. What are the remedies available to the parties under the Hindu Marriage Act, 1955?
Answer: he three remedies available to parties are: restitution of conjugal rights, judicial separation, and divorce. The judiciary in India is demanding an irretrievable breakdown of marriage as a special ground for divorce. Even when the petition is presented before the court, the option of conciliation is always open for the parties.
Qs. What is a restitution of conjugal rights?
Answer: Section 9: Restitution of Conjugal rights: The Hindu Marriage Act, 1955 is not about divorce alone but the law even provides for even bringing together the parties under a section of Restitution of the Conjugal Rights. According to this option, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition may grant a decree restitution of conjugal rights accordingly. The burden of proving reasonable excuse shall be on the person who has withdrawn from the society. Section 13 (1A) (ii) gives further remedy of obtaining a divorce if the parties are living apart for one year and feel that still, they cannot live with each other or their attempt in this one year to reunite failed, any one of the spouses can present a petition for divorce. The time of one year given is a reasonable and sufficient for parties to make an attempt to get reunited.
Qs. What is judicial separation?
Answer: Section 10: Judicial Separation : When either party to a marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 may present a petition praying for a decree of judicial separation on any of the divorce grounds specified in section 13(1), and in case of a wife also on any of the grounds specified in section 13(2) of the Hindu Marriage Act, 1955 (HMA).
- Either of the parties has ceased to be a Hindu
- Either of the parties is of unsound mind or is suffering from continuous and intermittent mental disorder of such a kind and to such an extent that petitioner cannot reasonably be expected to live with the respondent.
- Suffering from virulent and incurable form of leprosy,
- Suffering from venereal disease of incurable form,
- Either of the parties has renounced the world,
- Either of the parties is legally dead that is he/ she has not been heard or seen for last seven years.
The special grounds for a wife under section 13 (2) under HMA also available for judicial separation are:
(i) Husband Marries Again: In case of marriage solemnized before the commencement of this act, if the husband marries again, before the commencement of this act, and: in case whether the marriage was solemnized before or after the commencement of this Act, if the other wife of the husband was living at the time of solemnization of marriage as well as at the time of the presentation of the petition.
(ii) The offense of Rape, Sodomy, and Bestiality after the solemnization of marriage.
(iii) In case if a decree has been passed for a suit under section 18 of Hindu Adoption and Maintenance Act, 1956 or in proceeding under section 125 of code of criminal procedure, 1973 or under corresponding section 488 of code of criminal procedure, 1898, has been passed against the husband awarding maintenance to the wife, and since the passing of such decree, notwithstanding whether the wife was living separately or not, the couples have not been able to resume cohabitation, for a period of one year or upward;
(iv) If the marriage of the wife was solemnized before she attained the age of fifteen years, notwithstanding of the fact whether the marriage was consummated or not, if on attaining the age of fifteen years she repudiated the marriage but before the attainment of the age of eighteen years. This clause is applicable for marriages solemnized before as well after the commencement of the act.
Where a decree of judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it consider it just and reasonable to do so.
Divorce and judicial separation are two different concepts, based exactly on same grounds. Whereas in divorce the matrimonial relations completely come to an end, parties come back to the status of single, and both the parties can now remarry. But such is not the case in judicial separation. Though granted on same grounds, it only put a break on the matrimonial relations of the party and it does give any effect of divorce.
However, the purpose for which the decree for judicial separation is granted is that during the period of separation, parties make an attempt to get reunited. If parties want to make an attempt to resolve their dispute, they can make an application for rescinding the decree. But if within one year they are not able to cohabitate again, either of the parties can file a petition for divorce under Section 13 (1A) (i).
Question: What is divorce by Mutual Consent?
Answer: Section 13- B of the Hindu Marriage Act, 1955: Divorce by mutual consent
A petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
On the second motion of both the parties made not earlier than six months after the date of presentation of petition and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the court shall, on being satisfied, after the hearing the parties and after making such enquiry 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 decree.
The essential requirements are:
- parties must be living separately for one year,
- that they have not been able to live together and
- that they mutually agree to get separated.
Question: What is the scope of reconciliation in any divorce, maintenance petition filed before the court under Hindu Marriage Act?
Answer: Section 23(2) in The Hindu Marriage Act, 1955 provides that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Provided that nothing contained in this shall apply to any proceeding wherein relief is sought on any of the grounds of:
- has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent,
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment;
- has been suffering from a virulent and incurable form of leprosy; or
- has been suffering from venereal disease in a communicable form; or
- has renounced the world by entering any religious order; or
- has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Desertion herein means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
Question: What amounts to cruelty?
Answer: Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of the mental peace of the other party.
(i) Cruelty in the matrimonial law means the conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.
(ii) It would follow that the old English law concept of danger is no longer applicable in India.
(iii) The making of wild, reckless and baseless allegations of impotency and lack of manliness – itself amount to cruelty in the matrimonial law.