Ine of D, and LDa and third generauon TO

ME.
the common ancesor
Pand D, also are sapindas of each other; Pand D, are also
P and D, are not sapindas; Pand Dg and Pand D, are also not sapindasP
of
are not sapindas, counted from their respective common ancestors. sapindas; andeachDinotalhser.
The sapinda relationship is not limited to whole blood, or
legitimate
alone; it includes relationship by full blood, half-blood and uterine
blood relationship and also relationship by adoption.
Thus the Act of 1955 limits the sapinda relationship to five degrees
blood, rielMlaleiogjntimshaitep
side and three degrees from mother's side counting
The above views of Mitakshara and
the propositus as one degree. from father's
Dayabhaga about Sapinda extensions
been accepted by the present Act. Under the the Sapinda relationship haave not
fifth degree in ascent from the propositus in maleActline extends upto
and upto third generation
in mother's line. in ascent
Consequences of marriage with persons falling within Sapinda
relationship,-Mariage with persons falling
Section ll of the Hindu Marriage Act and is within sapinda relationship is void under
punishable under Section 18 (b) of 1this
Act.
MARRIAGE CEREMONIES (SECTION 7)
Ceremonies
practices in
for a Hindu Marriage or
Role of religious rites and
of marriage. marital
7 relations,--(1)
The Act does not
Section provides : prescribe any particular form
) Amarriage may be
solemnised
ceremonies either party thereto.
of
in accordance with the
customary rites and
(2) Where such rites and
seven steps by the ceremonies include the saptapadi(that is, the
bridegroom
marriage becomes binding whenandthethe bride jointly before the sacred taking of
seventh step is taken." fire), the
Saptapadi
the sacred fire. means talking seven steps by the
of
According to Mahamohopadhya P.V.bridegroom
fire. There are seven Kane, this
and bride together before
is
of these seven with small heaps of rice and the done to the north of the
frombridegroom
her right foot makes the bride step on each
If there are beginning the west.!
of marriage, the certain religious ceremonies which are
of the doctrine ofobservance of such ceremonies cannot benecessary for the
factum valet.
marriage may be solemnised in Sub-section overlooked by solemnization
the
it. In this accordance with
(1)
the
of Section 7 lays down thatapplication
a Hindu
sub-section the word 'may' has rites and
sense of 'must'. In Bhaurao v.
State
been used. This word ceremonies
has been
of either party to
unless a marriage is celebrated or, of Maharashtra' the used here inthe
cannot be said to have been performed
with proper Supreme Court
has held that
through certain ceremonies 'swith
olemnised' , court
The
an intention that theobserved
ceremonies
and in due form, it
would not mean performance of marriage with parties be further
that
taken to merel y
by custom. be going
ceremonies prescribed by law or married,
approved
1. History of Dharmsastra Vol. II, Part 1, p. 534.
2. AIR 1965 SC 1564. See also Priya Bala v.
Suresh Chandra, AIR 1971 SC 1s3
 MARRIAGE 59

ta N Somanath Tarapur v. Divisional Controller K.S.RT.C. Bijupur, the

Karnataka High Court held that it is not the requirement of law that the marriage
amongst Hindus in which it is
not proved that the couple had taken a vow and seven
no
togetherin front of the sacred fire, is no marriage at all, nor can it be said that
steps sufficient
marriageis valid in the absence óf such proof notwithstanding there being
evidenceto prove the marriage otherwise.
many other rituals and
What the law says is that if a custom allows and includes
the performing of the taking of
ätes to be performed even thereafter, i.e., subsequent tosacred fire, non-performance of
the seven steps together by the couple in front of the
further ceremonies and rituals
is of nc consequence in determining the validity of the
not having taken place, the
nariage. Notwithstanding such subsequent ceremonies complete when seven steps
binding and
factum of marriage between the parties becomes
aretaken.2
ceremonies prevalent in the communities of both the parties to the
If the rites and solemnised in accordance with those
then marriage must be
marriage are the same, ceremonies
ceremonies willbe sufficient. But if the either in
ceremonies and performance of those solemnised
different in their communities, then marriage may be
of marriage are bridegroom or
the rites and ceremonies observed in the community of the
accordance with
inthe community of the bride.
rites and ceremonies in vogue provisions of Section 7 that essential ceremonies and
the
It is abundantly clear from must be performed in order to make it
valid and
Marriage
rites, pertaining to a Hindu dispense with performance of essential ceremonies of
binding. The section does not Singh, the parties lived together as husband and
wife
marriage.5 In Surjit Kaur v. Garja ceremonies or under any established custom. itself
The
essential by
without performing the situations living together as husband and wife
such
Supreme Court held that inhusband and wife.
would not confer status
of
has to be established that the first
prosecuted for bigamy it there is no
Where a person is to besolemnized according to accepted ceremonies. If marriage the
marriage of that person was saptapadi having been observed in the priorA. N. Mukerii
evidence of ceremonies like bigamy in case he marries later also. In Dr. ceremonies at
convicted for help of
person cannot be celebrated his second marriage with the exchange of garlands and
v.State 5 one Dr. Mukerji firstly with the
solemnized his marriage by performing m0on
three different times. He of Kali, secondly
front of the temple
walking seven steps in performing ceremonies before Guru
Granth Saheb. None of
and thirdly by community of groom or bride.The Court
ceremonies acceptable either in the the
ceremonies were of due ceremonies for establishing
Ihese performance the
that this would not amount to Mukerji could not be established and
held marriage of Dr.
marriage, Hence second
prosecution for bigamy failed. 30 years old marries with a
Hindu prostitute B.
Problem.-4, a Hindu male
of this marriage.
Examine the validity

Kant. 347.
I. AIR 2002 Kant. 347. 20.
AIR I966 HP
2. AIR 2002
Ram v. Smt. Thopliand others,
3. Parbia SC I35.
4. AIR 1994
1969 AlI. 489.
 HINDULAW
60

Ans. There is no prohibition on the marriage of a Hindu male with

under Section 5 of the Hindu Marriage Act. The Hindu male is above a
and therefore there is no contravention of Section 5(I) of this Act.
of a Hindu male 30 years old with a prostitute is valid under Section 5 of
the age of prost w
Therefore, mariage
the Act.
e.
Presumption as to Marriage.-There is:an extremely
favour of the validity of a marriage and the legitimacy of its strong preSumption in
offspring
if
the alleged marriage, the parties are recognized by all persons concernedfrom the
as ine f
wife and are so described in important documents and on important
The Delhi High Court in Ashok Kumar v. Smt. Usha Kumari. l
occasions husband
and
parties are recognized as husbandl and wife, there is a strong has held that
if the
validity of marriage form and ceremony of the marriage presumptionand the
in
favour
of the
offspring. After all, the rites and ceremonies only serve to provide proof legitimacy
of
of
registration does. It is otherwise very difficult after some lapse
the witness-box to prove that the of time to a
marriage had been solemnized. No calldocumenth
marriage
Pandi t
as
to
evidence is even possible to find. Many of the witnesses
evidence except the hard fact of living together survives. disappear in the meanwhile N
PROOF OF MARRIAGE (SECTION 8)
Registration of marriages.-Section 8 of the Act provides that "for the
purpose of facilitating the proof of Hindu
Rules providing that the parties to any such marriages,may the State Government may make
their marriage entered on such manner and marriage have the particulars relating to
subject to
prescribed in a Hindu Marriage Register kept for the purp0se".such conditions, as may he
In Smt. Seema v. Ashwani Kumar, the
Supreme Court on 14th February, 2006
ordered compulsory registration of marriages irespective
and Union Territories to amend the rules to of religion. It directed the Centre
this effect within three weeks of the
judgment.
When necessary.-Section 8 of the Act provides that the State
may, if it is of opinion that it is necessary or expedient so to do, Government
of the particulars referred to above, shall be provide that the entering
compulsory in the State or in any part
thereof, whether in all cases,or in such cases as may be specified.
Non-entry not to affect
marriage shall in no way be affectedvalidity of marriage.-The validity of any Hindu
by the omission to make the entry in the Marriage
Register.
It may be noted that registration of
the proof of a lawfully solemnised marriage under this section simply provides for
marriage isregistered, the registrationHindu-marriage. If there is no marriage at all but the
certificate, as such, cannot validate the marriage. In
the case of Shaji v. Gopinath, there was no
Act. But the marriage between the parties wasmarriage at all under the provisions of this
girl that such certificate would be necessary for registered merely because the boy told the
her employment abroad. The Madras High
Court held that in the circumstances the registration of marriage is
null and void.
I. AIR 1984 Del. 347.
2. AIR 2006 SC 1158.
3. AIR 1995 Mad. 161.
 MARRIAGE 61

Matrimonial remedies under Hindu Law

four matrimonialI remedies under the modern Hindu law. These are :
Thereare
Reestitution of conjugal rights,
()
(2) Judicialseparation;
marriage;
(3) Nullityof
(4)Divorce.
CONJUGAL RIGHTS (SECTION 9)
1. RESTITUTION OF
entitled. to the society of his wife and the wife to the
After marriage the husband is therefore, arises when one of the partiesto
the
her husband. Acause of action, Marriage Act,
sOcietyof
the society of the other. Section 9 of the Hindu
marriage withdraws from
restitution of conjugal rights. The foundation of the
the and
in6s deals with the subject of matrimonial lawthat one spouse is entitledtosociety
fundamental rule of abandoned or
rightisthe other spouse and where either spouse has
omfortconsortium-of the
without reasonable excuse or just cause the court
aithdrawn from the society of the other
for restitution.
should grant a decree
section provides that : "When either the
arise?-The the
When the rights reasonable excuse, withdrawn from the society of of
without restitution
husband or the wife has, petition to the District Court, for in
party may apply, satisfied of the truth of the statenments made
by
other, the aggreived court, on being should not be granted,
conjugal rights and the why the application
the
petition and that there is no legal ground
such conjugal rights accordingiy".
may decree restitution of explanation has been added to
(Amendment) Act, 1976, an withdrawn from the
Laws the person who has
Under the Marriage excuse on
proving reasonable
shift the burden of runs as follows : withdrawal
explanation reasonable cause for
society. The has been
arises whether there on the person who has
"Where a question reasonable excuse shall be
burden ofproving
from the society, thesociety." rights,
withdrawn from the decree the restitution of conjugal
under this section the court may
Thus, society
when excuse, withdrawn from the
party has, withoutreasonable
(a) either of the petition for
of the other; made in the
of the statements
court is satisfied of the truth
(b) the conjugal rights; and
restitution of
application should not be granted.
ground why the much
(c) there is no legal companyof the other is as
either spouse of the conjugal due to trivial as well as grave
Deprivation of frequently provided
sex as in the other and is some safeguard should be
Common in one marriage,
reasons. In the interest of the institution ofthe Act is intended to provide an opportunity
hasty separation. Section 9 of the two spouses. It would obviously
be
against the reconciliation between spouse can
re-approachmentand
effectuate compromise between the spouses. Either
for court to
an attempt
ofthe
 HINDU LAW
62
spouse to
institute proceedings in court for directing the other give back
withdrawn. he
society which has been unreasonably
In Sushila Bai v. Prem Narayan, the M. P. High Court held that
sustain a petition for restitution of conjugal
rights, it is
comja
petitioner.necessary
to establish
respondent has withdrawn from the society of the The society hat he
petitioner. The explanation added means
onCoTipgA
society. Thus the onus is on the to
levyinSegcidown
of 1976. has merely provided a rule of
evidence by 9by
amending Act
burden of proof in regard to a question whether there has been reasonable
on the
the
withdrawal from the society of the petitioning spouse party pleading
burden of proof is very light since the spouses are always supposed to live
he or she lives separately, it is for that person to prove the conditions togeteXhCUser e.
which
a
The
andif
necessitated such a course to be taken. Thereafter the burden would shift
t to the have
to show that he or she has withdrawn from the society of the other for a other party
excuse. reasonable
The essence of decree for restitution of conjugal rights is that either of the
desiring the company of the other makes an effort through the court for its assistancespousesin
order to restore the other back to him so that they may be able to lead conjugal lite
Inrinsically, the plantiff in proceedings for restitution of conjugal rights is the agrievet
party who desires to live with his spouse.
Constitutionality of Section 9 of the Hindu Marriage Act
In T. Sareetha v. Venkata Subbaiah,³the Andhra Pradesh High Court has observed
that the remedy of restitution of conjugal rights provided under Section 9of the Act is a
savage and barbarous remedy violating the right to privacy and human dignity guaranted
by Article 21 of the Constitution. According to the learned judge adecree of restitution
conjugal rights constituted the grossest form of violation of any individual's right to
privacy. It denied the woman a free choice, where, when and how her body was to become
the vehicle for procreation of another human being. Adecree of restitution of conjugal
rights deprived a woman of control over her choice as and when and by whom the various
parts of her body should be allowed to be sensed. She loses her control over her most
intimate decisions. It does not subserve any social good. It is arbitrary and void as
offending Article 14 of the Constitution.
But the above view about the constitutional validity of Section 9 was not accepted
by the Delhi High Court in the case of Smt. Havinder Kaur v. Harmander Singh. In this
case the learned judge of the DelhiHigh Court expressed the view that Section 9 was not
violative of Articles 14 and 21 of the Constitution. The object of restitution decree was
tobring about cohabitation between the estranged parties so that they could live together
in the matrimonial home in amity. The remedy of restitution aimed at cohabitation and
consortium. The restitution decree does not enforce sexual intercourse. It was afallacy to
hold that the restitution of conjugal rights constituted the "starkest form of governmental
invasion" of "marital privacy".

225.
1. AIR 1976 MP Punj. 489.
2. B.LSyal v. Smt. Ram Syal, AIR 1968
Andh. Pra. 356.
3. AIR 1983
Delhi 66.
4. AIR 1984
 63
MARRIAGE
constitutionality of
tothe
law withregard SupremeCourt
observed
now settledthe the
Supreme Court has Sudarshan Kumar,'
or Article 21 of the
The this Act. In Saroj Rani v. Article 14
9of cannot be said to be violative of
conjugal rights inthe Act is
the Act, of executionin cases of
Section9 of of decree of restitution its
ifthe
purpose
and if the method of
the husband orthe
Constitution perspective of
rights,i.e., right statute. Sucharight
that
i nits proper India conjugal
understood
view. In creature ofthe may be
is kept in otherspouse is not merely term"conjugalrights" ofthe
disobedience
thesociety
ofthe marriage itself. The dictionary meaning
of
to veryinstitution keepingin mind the
inherent the
wife
perspective by for
is
viewedin its
proper petitionbythe wife
expression
"conjugal" a no
case wereas under. On therelief. There was
the
above-mentioned
waspassedgranting fordivorce.Thewife
Thefacts of consent decree fileda petition thehusbandturned
conjugal r1ght, a thehusband thereafter
atiutionof periodofoneyearand twodays,and did ot grantrelief
ahabitationfor a cohabitationfor Court divorce
there was evidence. ThoughtheTrial the decreefor
decree
that HighCourt
henpleadedCourtdisbelievedthis wascollusive,in soughttosetasidethe conjugal
decree
herout. The thattheconsent SupremeCourtthewife for
restitutionof the
theground before the tohave a decree thereafterobtain
on wife and heldthatitis
Inappealhusbandwantedthe cohabitwithher
wasgranted. to argumentand no
groundthatthe trapandthen notrelyonthislineof the partiescan
onthe a down and close the
by somekind ofapexCourtdidnot marriage has broken
is betterto
rights divorce. The situationit
reasonshis is the
decreefor whateverbethe wife, ifsuch
evidentthattogetherashusbandanddismissed. are bound to live
accordingly ?-Married persons withoutlawful
longerlive other
appealwas withdrawal societyofthe The forsaking
of
chapter.The amounts to the cohabitation. a
What withdrawsfrom to separatepartofof
them return a
eitherof partiesto himselffromherin The reasons
togetherand if maycompelthe seclusion of cohabitation,
Court and withdrawal from
excuse,theavoidinghersociety mental
amount to involves a
wife'sbed,residence may other" matrimonialhome
Common grave and weighty. societyoftheleaving intention
withdrawalmustbe "withdrawalfrom the temporarily whenthereisno
expression separation.Theactof oftheother,
The physical society
besides withdrawalfrom the unanimouson
process amountto is not offencecan
to not permanently.4
withdraw
Would cause,-Judicialopinion matrimonial leaving
just crueltyoranyother one spouse in one
excuse or for
Reasonable short of tojustify spouse which
conductfallingjustlcause in order conduct of a justifying the
whether excuse or the offence
theissue reasonable opinionseems to be other matrimonialconductcomplainedis
that
amount to
But therecentshortofcrueltyor
any
upon whetherthe engquiry intofacts. In
another. depends an
anotherfalls oftheother substanceinvolve
reasonor society
the character. Itmustin
withdrawalfromweighty
and
of agrave
1562. 52.
1984SC (1883)99PD
1. AIR
Weldonv.
Weladon,
MP 15.
2. Powell,92 LJ" AIR 1979
Powellv.Chandrav.P
3.
Ramesh
4.
sEKHOst HINDU LAW
DLL NO.
Pramilabala v. Rabindranath, during the wife's stay in her father-in-law's house, her
64
mother-in-lawillreated her and made her stay in that house a miserable proposition:and it
was quite evidentthat the mother-in-law was also successful in poisoning the ears of her
son. against his wife, it was held that no fault could be found with the wifes
disinclination to go back to her father-iin-law's house, especially when her husband was
not staying at that place. Acontrary view, however, appears to have been taken in
another case. Each case must depend on its facts and circumstances and it is not possible
to give an exhaustive statement of law what may or may not constitute "reasonable
excuse". Section 9 of the Act does not throw any light on the construction of the
arresion*"without reasonable cause" andwhether there iS a reasonable cause or not in a
oiven case shall be decidedonly on the evidence and the particular circumstances of that
case3

According to Mulla, "this section must be read with section 23 of this Act which
imposes on the court the duty to inquire into and pass a decree inter alia for restitution of
conjugal rights after satisfying itself about certain matters"4
Working Women and Restitution of Conjugal Rights.-In Halsbury's Laws of
England 5it is stated, "It is ahusband's duty to provide his wife with a home according
to his circumstances. There is no absolute rule whereby either party is entitled to dictate
to the other where the matrimonial home shall be: the matter is to be
settled by
agreement between the parties, by a process of give and take and by reasonable
accommodation". The Madras High Court has, in N. R. Radhakrishnav. N. Dhanlaxmi ó
held that the right of the husband to require his wife to live with him is not
where the wifeis gainfully employed in a place away from the husband's home, unqualified
held it to be a reasonable exXcuse to live apart and the the court
restitution petition of the husband
was not granted. But in another case,' the Punjab High
Court
restitution of conjugal rights to the husband, even though thegranted the decree of
wife was gainfully
employed away from the matrimonial home. The Court said that the
right to determine the locus of the matrimonial home and husband had the
Support his wife.
that he had the means to
In Kailashwati v. Ayodhya Prasad, it was held by
since the husband has been burdened with the legal the Punjab High Court that
and child, he should have the right tochoose the obligation of providing for his wife
the husband has exclusive rights to determine the matrimonial home. The Court said that
matrimonial home.
In this respect there have been varying
Smt. Devi Bai, the wife was employed away judgments of the Court. In Mirchu Lalv.
to her husband so often. Later on she from matrimonial home and used to come
of affairs could ngt last long and theresigned and started living with him. But this state
wife again sought employmeht away from the
1. AIR 1977 Orissa 132; see also Mirchulal v. Smt. Devi Bai,
AIR 1977 Raj 113.
2. Gopal Krishan v. Mithilesh Kumari, AIR 1979 All. 316.
3. Lachman v. Meena, AIR 1964 SC 40.
4. Mulla: Principles of Hindu Law, Ed. XVI
5. 4th Edition, Vol. 13, Para 623. (reprint 1994)p. 642.
6. AIR 1957 Mad. 339.
7. Smt. Surjiu Kaur v. Uijal Singh,
8. AIR 1977 PLR 216. (1978) 80 Punj. LR 693.
9 AIR 1077 Rai
 MARRIAGE 65

home.Sheagreed to go to his place so often and also asked him to come down
p u s b a n, d ' s

place Onthis
the husband after sometime filed apetition of conjugal rights under
Act, But the court dismissed it holding that there was quite reasonable
ofthe
her
9
w
saton
offthe wife to live apart from the husband.
thepart
On,
eKCUSC
case decided bythe Delhi High Court' on this point.
been an interesting
Therehas were
husband and the wife both were gainfullyemployed. Both of them was
case,the as his wife
this
I n qualifiedbut
unfortunately the husband was not so wellemployed proposed to the
hichly was getting higher salary than her husband. The wife
wife
thusthe should resign and stay with her. On the other hand the
husband asked her
husbandthat he there was great misunderstanding. Inthe last
him. On this issue dismissed
andlive with
resign restitution under Section 9of the Act. The Court
o huusbandfiled a suit for
sufficient reasons for the wife to stay separately and
there were each
and held that
thepetition. the equalityof right of
said was about
the netition must fail. What
the Court marriageto stay
compulsorily with
the the time of
hence
and
non-committal of the wife at
spouse
thehusband the Bombay High Court further
Barke, house
Bhasker Barke v.Satchidananda the house of
the
the husband or different
In Alka necessarily employed at
the matrimonialhome is not husband were gainfully contributed initial
hald that wife and Bombay. The husband
parents. In thiscase both flat at flat at Bombay was
of his ownership that this
decided to book remaining balance. It was held
nlaces and
wife paid theparties. lived with his
aged
amountand the of the long as he therefore
matrimonial honme live with
as
the husbandunreasonable excuse and
the refused to be an observed that in a
Where the wife roof, the courtheldit todecreed. The court basic rule of
the same was fundamental and
parents under petition of the husbandguided by the society and comfort,
restitution isto be to have the husbandunder
the the court each spouse of the
restitution petition it is the right of residence
parents
oftheaged circumstances, though
he
matrimonial law that as the separate
other. Solongprovocative of creatinggrave no right to
has
Consortiumofthe
him is not her husband,the wife
roof with of
consortium parents.3 necessary that
the same wife's right to his right it is
subverts the husbandaway
from
ofconjugal be refusedifthe
restitution may
residencewith
her petitionfor decree of
restitution
an ulteriormotive
succeed ina intention. A there is for
Inorder
to bona fide bona fide andthat Where a petition
have presented
petitionermust petitionisnot resumption of
cohabitation.
also accusesthewife
the thatthe for a
husband
andthe cannotstandrestitution side by side.
cOurt finds desire husband by
than the sincererightisfiledbythe these two claims decreeofthe extent
other conjugal held that afterthe showsthe
restitutionof conduct, thecourt thatseverndaysjudicialseparation, thus, theDelhi
adulterous merefact for Observing
of incompatible.The anotherpetition withhim. the part of the
moved wife sincerity on
Theyare thehusband keepingthe
court interestin petition for want of
lower
sincerityand the restitution
ofhis rejected the
High Court
husband.4 Del.296.
1978
K.M. Garg,AIR Ker4.
Swarajv. Aiyar,AIR 1974 Delhi321.
164.
1. Smt. 1991 Bom. Parmeshwar Kumar,AIR1976
2. AIRKantimathi v.S. Dang v. Prem
 HINDU LAW
66

The following grounds have been held to be valid considerations for

separately, disentitling the other spouse to a decree for restitution of conjugal riet living
(a) Grossly indecent behaviour;
(b) Extravagance of living on the part of the wife effecting the financial
and prospects of the husband; position
(c) Excessive drinking carried to such adegree as to render it impossible for the
duties of married life tobe discharged;
(4) Persistence in a false charge against the respondent of having committed an
unnatural offence;
(e) Refusal of marital intercourse without sufficient reason;
) Apprehension of violence due to development of insanity in the petitioner;
(g) Agreement to live separately;
(h) Misconduct approaching cruelty but falling short of it.' Where the wife used
to be habitually beaten by the husband and neglected to be provided with
food, the Court held that the attitude of the husband amounted to legal
cruelty
and constituted a ground for refusal of a decree under Section 9 of the Act.2
) Imputation of unchastity persisted in by the husband,3
The following have been held unreasonable excuses for
society of the other spouse : withdrawing from the
(a) Mere frivolity, levity or even
impropriety, falling short of adultery and
giving no reasonable ground for belief that it has been committed:
(b) Mere frailty of temper and habits which are
even though as the result of neurosis. In Anna distasteful to the other spouse,
for restitution was filed by the Saheb v. Tarabai,4 apetition
husband and it was contested on the ground of
cruelty. The act of cruelty as
him and even to press her for alleged was to persuade his wife to
the same. This conduct on accompany
rise to unpleasantness because the wife was husband's part gave
heldthat such conduct on husband's part was unwilling go with him. It was
to
amount to an act of crçelty so as to perfectly justified, it did not
constitute a ground for defence to a
petition for restitution of conjugal right. It may be noted that a wife who
withdraws from husband's society on the ground of
prove it beyond any reasonable doubt. In Himansuhusband's cruelty, must
Rangs the wife was living separately on the ground Sekhar Rana v. Tapti
subiecting her to physical and mentalcruelty and that she that was
husband was
driven out of
+he matrimonial home. However, she could not
prove any of the allegations
against husband in the court. It was held by the Calcutta High
Court that
Singh, AIR 1959 Punjab 162.
1. Mst. Gurdevi v.Sarwan AIR 1964 MP 73.
Baburao v. Sushila Bai, ATR 1959 Kerala 75
 MARRIAGE 67

wife's withdrawal from society of husband was not justified and husband was
entitled to decree for the restitution of conjugal rights;
undue
(c) Habits of intemperance even if prolonged and accompanied by
accusations and hysterical outburst:
(à Existence of ditferences on account of the wife's inability to agree with the
step-children;
resulted in pregnancy
(e) DiscOvery of pre-marital misconduct which has not
with another man at the time of the marriage:;
which does not give rise to a
() Development of insanity after marriage
reasonable apprehension of violence.
withdrawal of society.--In Jivrathanammal v. P. S.
Cruelty as ground for respondent and both lived happily together for
Mudaliar,'the appellant was married to the cruelty
filed suit for maintenance on the ground of husband's
some months. The appellant parties thereafter lived together for
one year.
compromised. Both the
which was later on appellant left the husband
started between the two and the actual cruelty
But once again the trouble the husband, though not amounting tohusband
conduct of made
again, as the subsequent confidence and enable her to live with him. The
was not such as to
create
rights. Held, that the Court is not barred from
restitution of conjugal husband's
deciding question whether that the
an application for compromise in
considering cruelty prior to such of his subsequent
in view
conduct. It was held
application should not be granted should not be granted. An application for
bona fide, and it (i) that her
husband's application was not under Section 9 by the wife, on the groundparents had
filed
restitution of conjugal rights dissatisfied over the insufficient dowry that her her at her
were leaving
husband and his parents marriage, and (ii) that her husband after husband filed a
the
given her, at the time
of Soon after that petition
house, had arranged another marriage.
separation, on the ground that his wife. had
parent's for judicial fixing of second
Cross-petition under Section l0certain other people. The husband denied lifetime of the
with the
developed illicit intimacy would not marry any other woman inbeen proved by any
he wite having not rights,2
marriage and stated thatunchastity or adultery of the conjugal
petitioner. Held. that to a decree for restitution of
was entitled can be no
reliable evidence,she Onkar Panpatil³ the court held that there such
Smt. Sumanbai v. Anandrao her own husband's doubting her chastity. If to
In to wife than petition,the husband is not entitled
more insulting injury made and persistedia filing Nath Barik v. Smt. Pramila Batra
Ravindra
allegations are lightly 9 ofthe Act. In filed by the husband
of restitution of conjugal right
under Section
any relief petition
resisted thecompelled husband because of the
Barik,4 the wife to live separately from her
she was
on the groundthat father ofthe husband.
The court noted that it was the act of cruelty
the husband even then the court found sufficient reason
Cruel behaviour offather andnot ofthe
of the husband's
35.
Mad 482. 1971 P& H
I. AIR 1959 Kartar Singh, AIR Smu. Mish AIR 1979 MP 144.
Pativ. v, S. Krishnan Nair, AIR 199S Ker. 139 (Mental pain
k. Om 1976Bom212;Sukram
J. AIR Orissa 85. See a tly brushed aside on the ground that there was no
AIR 1979 vife by h
LLI
HINDULAW
68
dismissed the husband's petition for restitution of
living and
in the wife's separate
conjugal rights. courts while granting a decree
the matrimonial
However, itmay be concluded that in favour of granting decree for the
rights are normally
of restitution of conjugal promote stability in the marriage. Only in those
restitution of conjugal rights so as to marriage is found iretrievably
court for conciliation the
cases where despite efforts by theseparation or divorce againsta petition for restitution of
broken, the courts grant judicial Ravindra Kumar' in an appeal against order
conjugal rights. In Sneh Prabha conjugal v.
of rights, the Supreme Court felt that despite
confirming decree of restitution chances of husband and wife living together.
no
conciliation and much efforts there were confirming restitution of conjugalrights, the
Accordingly instead of confirming the order
Supreme Court granted divorce.
Law.-Either party to a Hindu marriage, even prior to this Act
Old Hindu rights. So far the remedy by way of a suit
restitution of conjugal
could sue the other for enforced according to Order XXI, Rules 32
in such a suit is
inthe civilcourt, the decreeProcedure.2
and 33 of the Code of Civil
(SECTION 1O)
2. JUDICIAL SEPARATION
separation,-Section 10 of the Hindu Marriage Act deals with judicial
Judicial
down:
separation. This sectionlays marriage, whether solemnized before or after
Section 10(1).--"Either party to a
of this Act, may present a petition praying for a decree for
the commencement specified in sub-section (1) of Section 13,
judicial separation on any of the grounds
also on any of the grounds specified in sub-section (2)
and in the case of a wife
which a petition for divorce might have been presented."
thereof, as grounds on has been passed, it shall
a decree for judicial separation
Section 10(2).--"Where cohabit with the respondent, but the
for the petitioner to
nolonger be obligatory petition of either party and on being satisfied of the
application by
court may on the made in such petition rescind the decree if it consiit jus
truth of the statements
do so."
and reasonable to between husband and wife
state of relations
Judicial separation is a perform marital obligations for
to livetogether or to
under no obligation between the spouses a_