Name Pradyumn Bisht

Roll No. 1629

Semester VI

Subject Family Law I

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Question 1.

‘The contention that the right conferred by sub-section (1-A) of section 13 is absolute and
unqualified and that this newly conferred right is not subject to provisions of Section 23 is
fallacious.’ (Hirachand Srinivas v. Sunanda, AIR 2001 SC1285).Explain the approach taken by
the Court to settle the debate.

Answer.

The SC of India in Hirachand Srinivas v. Sunanda, was faced with the question of whether
Section 13(1A) of HMA was to be read along or independent of Section 23 of HMA.

The above line quoted was the contention of the counsel of petitioner in the present case while
addressing the abovementioned question of law. The SC bench comprising of D.P.
Mohapatra, Doraiswamy Raju held that Section 13(1A) is not absolute in nature and
Section 23(1)(a) would be applicable.They also noted that the legislative intent behind
the Amending Act No.44 of 1964 was to make sure that new provisions under Section
13(1A) falls under the breakdown theory and either party has the right to file for divorce
even the party against whom decree of judicial separation or restitution of conjugal right
has been passed. As earlier the under clauses (viii) and (ix) of Section 13(1) the right to
apply for divorce was restricted to the party which had obtained a decree for judicial
separation or for restitution of conjugal rights. Such a right was not available to the party
against whom the decree was passed.

The amendment was not introduced in order that the provisions contained in Section
23 should be abrogated and that is also not the effect of the amendment. The object of
sub-section (1-A) was merely to enlarge the right to apply for divorce and not to make it
compulsive that a petition for divorce presented under sub-section (1-A) must be allowed
on a mere proof that there was no cohabitation or restitution for the requisite period.

There is no compulsion on the court to grant the relief under section 13(1A).Reading section 13
along with section 23, the court observed that a petitioner doesn’t have a vested right for
getting the relief of a decree of divorce against the other party merely on showing that
ground in support of the relief sought as stated in the petition exists.Additionally the
party which has committed wrong under section 23 of the act can’t seek for divorce based
on his wrong actions. Therefore, the SC observed that High Court was justified in
declining to allow the prayer of the husband for dissolution of the marriage by divorce
under Section 13(1-A) of the Act, as the husband in refusing to pay maintenance to the
wife failed to act as a husband

The determination of grant of a decree of divorce is to be done on a case to case basis keeping in
mind the facts of the case. The court was mindful of not laying down a generalized

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 universal principle as dissolution of marital relations has grave consequences on families,
childrens and the society as a whole,

Question 2.

‘…the provisions of contained in section 6(a) of the Hindu Minority and Guardianship

Act is extremely unfair and unjust and has become irrelevant and obsolete with the

changing times. …’ 133 rd report of Law Commission of India.

Do you agree? Why?

Section 6(a) of the Hindu Minority and Guardianship Act provides that

Natural guardians of a Hindu minor.—

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of
the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided
that the custody of a minor who has not completed the age of five years shall ordinarily be with
the mother;

The father and mother aren’t on the same footing which goes against the constitutional mandate
of no discrimination on the basis of gender.

The above provision is indicative of how patriarchal mindset is entrenched in our society and has
ushered after independence . Earlier Indian women have been treated as a property, with no say
and status in the society. However with the passage of time and rise of feminism throughout the
globe, we have witnessed that women of New India will not only demand their rights but are
also willing to fight for them.

Hence in the year 1999, in the landmark case of Ms. Githa Hariharan & Anr vs Reserve Bank Of
India .Ms. Indira Jaisingh, appearing in support of the petitioner strongly contended that the
provisions of section 6 of the Act seriously disadvantage woman and discriminate man against
woman in the matter of guardianship rights, responsibilities and authority in relation to their own
children. That the language in section 6 of the Act runs counter to such an equality of rights of
the parents to act as guardian to the minor child.

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The court in this case noted that no doubt true that the father was alive but he was not taking any
interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. Hence the court held that the mother can be considered to be the
natural guardian of her minor daughter..

The court also noted that rigid insistence of strict statutory interpretation may not be conducive
for the growth of the child, and welfare being the predominant criteria, it would be a plain
exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and
better development and gro wth of the child.Hence I agree with the law commissions’ view and
Section 6(a) should be done away with.

Gone are the days when only a male could provide financially for a family, the modern educated
and financially independent women of India can not only ensure the physical well being, moral
and religious welfare of the child but also the financial welfare of the child.

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