 ANSWERS OF QUESTIONS DATED 07/04/2020

 ENROLLMENT NO.: GU17R0389

 SUBJECT: FAMILY LAW-1

Q.NO.1: What is the response of HM, 1955 in context of same sex marriage?

Under the English law, such marriage is void ab initio [Corbett v Corbett (1970)2All ER 33].The
Hindu Marriage Act is silent on the issue. In Corbett case, it was held that the sexual constitution
of an individual is fixed at birth and can’t be changed either by the natural development of the
organs of opposite sex or by medical or surgical means. In view of that decision, such a marriage
will be invalid. Under the modern Hindu law, the marriage with an impotent or eunuch is valid,
though voidable at the instance of normal spouse.

Q.NO.2: What is customary divorce?

CUSTOMARY DIVORCE

Among Hindus, customary divorce is still recognized. Sec. 29(2) reads: “Nothing contained in
this Act shall be deemed to affect any right recognized by custom or conferred by any special
enactment to obtain dissolution of a Hindus marriage whether solemnized before or after the
commencement of this Act.”

It is important to note that before the coming into force of the Hindu Marriage Act, 1995, Hindus
could obtain divorce only if a custom governing them allowed it. No provision of the Act applies
to customary divorce (Shakuntalabai v Kulkarni AIR 1989 SC 1309).

The present position is that customary divorce is available unless a particular ground or mode of
divorce is found to be contrary to public policy or morality. For instance, a custom permitting
divorce to one spouse against the wishes of the other is void, being unreasonable and against
public policy. A custom among the Sikhs Jats of Punjab is that a husband has the power policy to
repudiate the marriage. Immediately on repudiation, the wife is free to remarry.

Custom among some castes and tribes recognize divorce by mutual consent. If consent to divorce
is obtained on payment of some price in cash or kind, divorce is not valid (Keshav v Bai Gandhi
ILR (1915) 39 BOM 538). It may be noted that among most of low caste Hindus, divorce has
always been available under custom; with them sacramental character of marriage was a form
without any substance.

The customary divorce can be obtained through the agency of gram panchayat or caste tribunal,
by private act of parties, orally or in writing, or under an agreement such as tyaga-patra or farkat-
nama. However, the court can look into the question as to whether the gram panchayat had the
jurisdiction and as to whether the principles of natural justice were followed [Krishanlal v
prabhu AIR 1963 Raj 95).

Q.NO.3: What is the time prescribed for re-marriage after divorce under HMA, 1955?

Sec. 15 of the Act lays down that the persons divorced under the Act may marry at any time after
the divorce decree (before 1976, there was one year restriction), provided there is no right of
appeal against the decree or if a right, the time for appealing has expired or the appeal has
dismissed.

Q.NO.4: What are the precautions that should be taken by the Court while passing a
decree under HMA, 1955?

OR

When a Court refuses to pass a decree of divorce under HMA, 1955?

Precautions to be taken by court before passing a decree (Bars to Matrimonial Relief)

The petitioner to succeed in his petition should not merely prove the fault of the respondent on
the basis of which he seeks the matrimonial relief, but should also be able to cross the bars to
such relief before his petition will be granted. The burden of proof is on the petitioner. Some of
the bars, such as collision and delay apply to all matrimonial relief, some apply only to divorce.
Most of the bars are based on the maxim, ‘one who comes to equity must come with clean
hands’.

Sec. 23 of the Hindu Marriage Act deals with the following bars:

a) Doctrine of strict proof

b) Taking advantage of one’s own wrong or disability
c) Accessory
d) Connivance
e) Condonation
f) Collusion
g) Delay, and
h) Any other legal ground. All bars are absolute bars and if a bar exists the petitioner
cannot be granted relief (under English law, some bars are discretionary bars i.e, depends
upon the discretion of the judge).A decree passed in disregard to these bars is a nullity.

The doctrine of ‘strict proof’, as laid down under S 23(1) has been relaxed by the judiciary
in recent times. The standard of proof need not be of ‘beyond all reasonable doubts’; the
balance of probabilities may prove guilt.

The bars of ‘talking advantage of one’s own wrong or disability’ [Sec.23 (1) (a)] lays down
that if the petitioner is, responsible for respondent’s wrong, the petition cannot be granted.

Sec.23 (1) (b) lays down that where the ground of the petition is adultery, the petitioner has
not in any manner been ‘accessory’ to or ‘connived’ at or ‘condoned’ the act(s) complained
of, or where the ground is cruelty, the petitioner has not in any manner ‘condoned’ cruelty.

Condonation essentially implies forgiveness plus reinstatement i,e. restoration of status quo
ante (restoration to the same position as a offender was before committing the offence).

Condonation to be valid can take place only when the offended spouse has full knowledge of
all material circumstances of the offence forgiven. Thus, resumption of cohabitation with the
full knowledge of respondent’s adultery amounts to condonation.
 Sec. 23(1) (c) lays down that where a petition is presented or prosecuted in ‘collusion’ with
the respondent, the court shall not decree such relief.

‘Improper and unnecessary delay’ (laches) [Sec.23 (1) (d)] is a bar to relief in respect of all
matrimonial causes under the Hindu Marriage Act

Sec. 23 (1) (e) is a residuary clause, which lays down that there should be ‘no other legal
ground’ for refusing the petition.

Q.NO.5: Is there any provision for reconciliation by courts under HMA, 1955?

RECONCILIATION BY COURTS

Under the Hindu Marriage Act and the Special Marriage Act, have been entrusted with a duty to
attempt reconciliation. No other Indian matrimonial statue contains such a provision. Sec. 23 (2)
of the Hindu Marriage Act reads: “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,”

Since the objective of reconciliation is to save marriage, the court at all levels (including
appellate courts) have power and duty to make efforts at reconciliation. Even in a petition for
divorce by mutual consent, it is the duty of the court to make efforts at reconciliation. However,
no reconciliation endeavour by the court is required when the ground for divorce is insanity,
venereal disease, leprosy, unheard absence, seven years’ imprisonment, renunciation of the
world and conversion. The reconciliation efforts need not to be made where marriage is null and
void.

Although the duty to effect to reconciliation is mandatory, the court’s failure to make endeavour
to effect reconciliation does not vitiate the court’s decree (leelawati v Sewak AIR 1979 All 285).
Further, the court’s duty is to endeavour to effect.