Dr.

Kavita Goel

Matrimonial
Remedies
 • Restitution of Conjugal Rights and
nullity of marriage under CPC &
Specific Relief Act
Position
• Hindu Married Women's Right to
before 1955 Separate Residence and
maintenance Act, 1946
• Customary Divorce
 • Restitution of conjugal rights: sec 9
• Judicial separation: sec 10
• Nullity of marriage: sec 11 and 12
Types of • Divorce: sec 13
Remedies • Maintenance: sec 24 and 25
• Custody of children: sec 26
 Sec 9: when either the husband or the wife has,
without reasonable cause, withdrawn from the
society of the other, the aggrieved party may
apply, by petition to district court for RCR and
Restitution the court on being satisfied of the truth of he
statement and that there is no legal ground why
of Conjugal the application should not be granted, may
decree RCR.
Rights
(From Jewish
Law-English Law-
Hindu Law) Origin: was first applied by Privy Council in 1866
in Moonshee Bazloor V. Shamsoonaissa Begum.
Contd. Who can apply: in case of valid
marriage

Where to apply

When to apply: burden of proof on

petitioner. reasonable cause?
• Desertion
• Contract between husband and wife:
Vuyyuru Pothuraju V. Radha, AIR 1965 AP
407
• Cruelty
• Conversion
• Parents residing with them
• Force to eat non-veg food or drink
 • Working women and RCR: In this respect there
have been varying judgments of the court. (Tirath
Kaur V. Kirpal Singh, 1964 Punj 28; Gaya V.
Bhagwati, 1966 MP 212; Shanti V. Romesh 1971,
ALJ 67; Radhalakshmi V. Dhanalakshmi, 1975 Mad
333)
• Mode of Execution: under O 21, R 32 and 33
Order XXI Rule 32: by attachment of property
Order XXI Rule 33: if the decree is in against the
Contd. husband then the court may order him to pay
the periodic sum to wife in case of disobedience to
the decree.
• Alternative remedy: O VII r 7 CPC (Firm Sriniwas
Ram Kumar V. Mahabir Prasad, AIR 1951 SC 177)
 • Constitutional validity of sec 9:
a) T. Sareetha V. Venkata Subbaiah, AIR 1983
AP 356
b) Harvinder kaur V. Harmender Singh, AIR
1984, Del 66
c) Saroj Rani V. Sudarshan Kumar, AIR 1984 SC
1562
•
Contd. Sec 13(1-A): either party to the marriage may file
for divorce if there has been no restitution of
conjugal rights between the parties for a period
of one year or upward after the decree of RCR.
• Sec 23: petitioner can not take the advantage of
his own wrong.
 • The husband had abandoned the society of the
husband on the ground of custom forfeiting the
right of husband to the society of wife. Decide the
right of husband.
•
Illustrations The child marriage was solemnized between two.
After some time but before attaining majority one
leave the society of other. Decide the rights of
other under sec 9 of HMA 1955.
 Judicial Separation

• Sec 10: either party to marriage, whether solemnized before or after the
commencement of the act may present a petition for JS on any grounds of
divorce.
• The Marriage Laws (Amendment) Act 1976 Makes the grounds of divorce
and JS common
• Difference between divorce and JS:
a) Lesser remedy
b) Not obligatory for the parties to cohabit
c) Relief of divorce after one year of marriage
d) Status of husband and wife but Divorce put an end to marital ties
e) Remarriage not possible
f) JS and divorce are same
 Contd.

• Cancellation of the decree of JS: The court may on application of either

party, rescind the decree if it considers just and reasonable to do so.
• Effects of JS:
a) remains husband and wife
b) no marital obligation of the parties towards each other
c) parties are not allowed to marry again
d) any party can get maintenance from other
e) if any party dies in between then other can inherit the
property.
Nullity of
Marriage
 Types

Absolute Relative
Impediments Impediments
 Void Spindas
Marriages-
Sec 11 Prohibited Degree

Bigamous marriage

Ceremonies
 Nullity of Marriage-Sec 12

• Sec 11: either party may file a petition against the other party for nullity of
marriage to get declared their marriage void( in case of void marriage). Sec
12: nullity in case of voidable marriage
a) Impotence: Digvijay Singh V Pratap Kumari, AIR 1970 SC 137
b) Unsound mind
c) Consent by force or fraud: Rajaram V. Deepabai, AIR 1974 MP 52;
Anurag Anand V. Sunita Anand, AIR 1997 Del. 94
d) Wife pregnant
• Time period: within one year
• Declaratory suit: under CPC and Specific relief Act 1963.
 Divorce

• Sec 13(1): divorce which results in the dissolution of marriage has to be

obtained by one of the party on the presentation of petition to a court.(
Ishwar Singh v. Smt Hukam kaur AIR 1965 All. 464) ground of divorce under
HMA 1955 are the only grounds under which divorce can be granted to the
parties.
• Theories of divorce: consent theory, fault theory and irretrievable theory.
• Gaurav Nagpal V. Sumedha Nagpal, AIR 2009 SC 357
Grounds of Divorce and JS
 Adultery

a) voluntary act of relationship

b) with person other than his or her spouse,
c) Identity of other person: ought to be second respondent
d) actual adultery,
e) adultery or living in adultery,
f) no need to prove beyond reasonable doubt
g) condonation of adultery.
 Cruelty

Treated with cruelty

a) physical and mental cruelty,
b) conduct must be of respondent only: Shyam Sunder v. Santa Devi, AIR
1962 Orissa 50
c) Intention to be cruel: Jamison V. Jamison 1952
d) Russell V. Russell (1897) AC 395: conduct of such a character as to
have caused danger to life, limb or health or reasonable apprehension
of it.
e) G V N Rao V. G Jalili, AIR 2002 SC 576. (social status to be considered)
f) N Sreeadecharya V. Vasantha, AIR 1970 Mys 232 (Mental Cruelty)
 Contd.

a) Dastane V. Dastane, AIR 1975 SC 1534: as to give rise to a

reasonable apprehension of such danger.
b) Shobha Rani V. Madhukar Reddi, AIR 1988 SC 121 (Demand for
Dowry)
c) Accusation by one in written statement: amounts to cruelty:
Sadhana Srivastava v. Arvind Kumar Srivastava , AIR 2006 All 7.

a) In Oakland (California): judge Lyle E. Cooke commented as

strangest form of mental cruelty: husband was too good to her
 Desertion

a) If one of the spouses voluntarily abandons his/her partner for at least

a period of two years, the abandoned spouse can file a divorce case on
the ground of desertion.
b) Actual and constructive desertion: withdrawal not from the place, but
from the state of things.
c) Facts to prove:
a) Separation
b) Intention
c) Without reasonable cause
d) Without consent
e) 2 years
f) Continuing offence
 Contd.

• Lachhman V. Meena AIR 1964 SC 40: factum of seperation and animus

deserendi.
• Bipin Chandra V. Prabhavati AIR 1957 SC 176,
• Jyotish Chandra V. Meera AIR1970 Cal 266)
• Termination of desertion: resumption of relationship, separation get
consent, offer to return and reasonable cause.
 Proof of conversion

Sarla Mudgal V. UOI, AIR 1995 SC 1531

Lily Thomas V. UOI, AIR 2000 SC 1650

Conversion Disrespect to Hinduism?

Conversion to sikhism or jainism or buddhism?

 Unsound mind
Click to add text

Incurable Unsound mind

a) it should be of such a nature as to disable the petitioner to live
reasonably. It includes mental illness, incomplete development of
mind, psychopathic disorder, schizophrenia etc.
b) Onus: beyond reasonable doubt
c) Sec 151 CPC: Lalit Kishore V. Meeru Sharma, 2009 SC 619. Nothing in
this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the Court.
 Other Grounds

1. Virulent and incurable form of leprosy: Lepromatus, Tuberculoid and

Dymorphous (Swarajya Lakshmi V. Padma Rao, AIR 1974 SC 165). Personal
Laws (Amendment) Act 2019
2. Venereal disease or sexually transmitted disease: after 1976, there is no
need to prove that disease of respondent not having been contracted from
the petitioner or of three year duration
3. Renounced the world: he must perform the ceremonies necessary for class
of sanyasi under Shashtras or formalities of particular religious order.
4. Not heard for seven years: sec 108 of Indian Evidence Act: there will be no
effect on remarriage when missing person reappears after 7 years.
 Non resumption of cohabitation after
Judicial separation: sec 13(1A) (i)

Non resumption of cohabitation after

IRRETRIEVABLE restitution of conjugal rights: sec
BREAKDOWN 13(1A) (ii)
GROUNDS
SEC 13(1A) SEC 13(1A) and sec 23(1)(a): Hirachand
V. Sunanda, 2001 SC 1285

• the petitioner can’t take the advantage of his

own wrong(O P Mehta V. Smt Saroj Mehta AIR
1984 Del 159, Luxmibai V. Luxmichand, AIR 1968
Bom 332, Dharmender Kumar V. Usha Kumar,
AIR 1977 SC 2218):
 Grounds available to Wife(sec 13(2))

Bigamy: husband having more than one wife alive at the

commencement of Act 1955. Both the marriage should be
solemnized before commencement of HMA 1955

rape, sodomy and bestiality: meaning are same as under sec 375,
377 of IPC

Option of puberty: where marriage is done before attaining the age

of 15 years then she can repudiate the marriage which can be
exercised before attaining age of 18 years.

Non resumption of cohabitation after decree of maintenance: this

clause was added by 1976 amendment
 Mutual Consent

• section 13(B) Consent given at the time of petition is revocable and can be
withdrawn before the decree ( Sureshta Devi V. Om Prakash 1992 SC 1904).
In Ashok Hurra V. Rupa Bipin Zaveri AIR 1997 SC 1266, SC first time exercised
the power u/Art. 142 and granted decree by mutual consent.
a) Has been living separate for 1 or more year
b) Not able to live together
c) Mutually agreed to dissolve
 Legal Formalities

• Where to file
• When to file: sec 14
a) After 1 year of marriage
b) Exception: exceptional hardship or exceptional depravity
c) Bowman V. Bowman(1949) 2 All ER 127 (CA)
• Proceedings before court: transfer of case, alternate remedy, in camera
proceedings, reconciliation
• Bars to remedies: Burden of Proof, taking advantage of his own wrong, collusion,
connivance, accessory, condonation, unnecessary delay and reconciliation
• Effect of divorce
• Remarriage: sec 15
• Punishment
• Execution : sec 28A: under CPC
 Maintenance

• Maintenance means the allowance to be made to one out of other’s

property. It is not limited to food, cloth and lodging but expanded to other
needs also.
• Object: the object is not to punish the person for his fault but to prevent
destitution and vagrancy by calling the one who can provide support to
other.
• Who can claim: Either party i.e. husband or wife.
• Types of maintenance: Alimony pendent lite(sec 24) and Permanent
alimony(sec 25)
 Contd.

• Alimony Pendent Lite:

a) Meaning: it includes interim maintenance and expenses of court
proceedings.
b) Object: the object is to see that a party does not suffer during the
proceedings due to his or her poverty. ( Chitra Lekha V. Ranjit Rai AIR
1973 Del. 176)
c) Quantum: court’s discretion but the court should consider the income
and status of both the parties. And the 1/5 th rule of Indian Divorce Act
was also deleted
d) Summary proceeding: 60 days
e) Conduct of applicant: no mean to support himself or to proceed with
the petition.
f) Duration: For the entire period while the proceedings are pending.
Contd.

g) No conditional order: Saroj V. Ashok AIR 1988 Raj 84

h) Effect of withdrawal of petition: the court may not allow the

petition to withdraw until expenses already incurred are not paid.

i) Effect if party refuses to pay: stay on proceeding or striking out

the defenses.

j) Variation of order of maintenance: by application

 Contd.

• Permanent Alimony:
a) Meaning: any party at the time of decree or subsequently may
apply for maintenance in nullity, divorce, Judicial separation and
restitution of conjugal rights.
b) Jurisdiction: the application of maintenance can be filed in which
the main petition was filed.
c) relief under all matrimonial causes: any decree means only
decree granting relief which disturb marriage or confer to take
away legal status of wife or husband and will not apply to decree
of dismissal.(Chand Dhawan V. Jawaharlal Dhawan 1993) 3SCC
406.
d) Facts relevant for consideration: Income and property of both
the parties, Earning capacity of both the parties, Conduct of
parties and Other Circumstances
 Contd.

• Quantum: Indian Courts accepted the 1/3rd rule of Eng. Courts

merely as a guidelines and otherwise there is no minimum and
maximum amount under any personal law.
• Mode of payment: Periodical and lump sum payment can be
made by the courts.
• Duration: it is not beyond the life time of the applicant and it
may be cancelled on remarriage.
• Variation of order: it may be increased, decreased or cancelled
when there is change in circumstances
 Sec 125 of Cr.PC

• Cr.PC (Amendment) Act 2001

 Custody of Children(sec 26)
welfare of child is of paramount
consideration
• The jurisdiction of the court to
make provision of custody,
maintenance and education of
minor children under the section
depends on the following requisites
being fulfilled:
a) The application must be
made in any proceedings
under the Act
b) It must relate to minor
children.
Access to children