REGISTRATION OF MARRIAGE [Section 8]
There is no provision for compulsory registration of a marriage under the Hindu Marriage Act, 1955. Section 8 of HMA makes registration optional and Section 8(5) specifically states that validity of any marriage is not affected by failure to register it. A plea for compulsory registration of marriages has been made by the courts in several cases.
In a judgment by the supreme court in Seema v Ashwani Kumar [SC 2006] , the court has issued directions that the marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in the respective States where the marriage solemnised. If the marriage is registered, the dispute concerning solemnization of marriage is avoided. It protects the women’s rights relating to marriage to a great extent; it has great evidentiary value in the matters of custody of children, rights of children, and age of parties to the marriage. The Supreme Court has directed the states and Central Government to take concrete steps in this direction.
Even where registration is compulsory, non entry in the marriage register cannot invalidate the marriage. It is to be noted that though the state government are given power to make it compulsory for making entries in the marriage register, they cannot make any provision invalidating a marriage for omitting to make an entry in the marriage register as it would be repugnant to Section 8(5). The state registration of marriage rules cannot travel beyond the mandate of the section. It is explicitly laid down in this act that no registration does not affect the validity of marriage.
PUNARJANI CHARITABLE TRUST vs. State of Kerala(2019 )The Kerala High Court has upheld the circulars issued by Local Self Government Authorities of Kerala Government making under-age marriages also compulsorily registerable observing that it would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act.
The Madras High Court has directed the Inspector General of Registration to issue a circular making the physical presence of the parties to the marriage mandatory for the registration of their marriage. The bench comprising Justice KK Sasidharan and Justice PD Audikesavalu observed that it shall be incumbent upon the parties applying for the registration of marriage to establish that the marriage between them has been performed in accordance with their personal laws or custom or usage or tradition.
Nowadays, men and women of this land to whom different personal laws are applicable are frequently relocating to different countries either for their permanent abode or temporary residence. However, this relocation, temporary or permanent, has its own side effects on the matrimonial relationships, creating various kinds of matrimonial disputes ruining the family and peace. The problems faced by the NRI women in foreign jurisdictions include instances of abandonment of wife by the NRI husband on a foreign land, the woman being alone on the foreign land, is assaulted and abused both physically and mentally and is malnourished, confined arid ill-treated by the husband and/or his relatives, the woman harassed for dowry. In most of the cases, the husband obtains an ex-parte divorce decree in the foreign country behind her back and may also not give her the custody of her children. The woman is denied maintenance on the ground that her marriage has been dissolved by a foreign court. She may also face various other legal impediments relating to the issues of private international law such as those relating to jurisdictional issues, service of notice, enforcement of orders and decrees etc. Recently, prompted by increasing numbers of reports of Indian women being trapped in fraudulent marriages with NRIs, an initiative has been taken by the External Affairs Minister, Ms. Sushma Swaraj, to combat these problems, by introducing a Bill in Rajya Sabha titled as “The Registration of Marriage of Non-Resident Indian Bill, 2019”.
JUDICIAL SEPARATION [Section 10]
There was no concept of judicial separation under Shastric Hindu law. Although in certain cases British Indian courts permitted the wife maintenance and separate residence from husband. Later on, the Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946 gave statutory right to Hindu married woman to claim separation and maintenance from her husband. This enactment keeps resemblance with judicial separation incorporated under section 10 of HMA, 1955.
A decree of judicial separation does not terminate the marriage but put an end to the obligation of conjugal duties. After the decree neither spouse is under an obligation to cohabit with each other.
Section has also the retrospective effect.
The marriage laws amendment act 1976 enables either party to a marriage to move for a decree of judicial separation on any of the grounds specified in section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) as grounds on which a petition for divorce might have been presented.
A valid marriage is a sine quo non for decree of judicial separation.
Judicial separation and Rape
– Section 376B IPC,1860
Rescission of decree of judicial separation [Section 10(2)]
– Section 10(2) provides that the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
– Thus the decree of judicial separation is reversible and may be rescinded.
– The decree is not automatically rescinded by a short lived cohabitation.
– If the cohabitation lasts long the decree stands rescinded.
Divorce and judicial separation
Death of the party during judicial separation
THE HINDU MARRIAGE ACT, 1955
BIGAMY [SECTION 5(i)]
Bigamy’ means having two wives or two husbands at a time. Bigamy includes polygamy and polyandry. Section 5(i) Hindu Marriage Act 1955 lays down that neither party should have a spouse living at the time of marriage. This is a condition precedent to every marriage. Monogamy means that one is permitted to have only one wife or one husband at a time. Bigamy is the reverse of monogamy. Section 5(i) of Hindu Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void and section 17 makes it a penal offence for both Hindu males and females under section 494 and 495 of IPC.
Conditions for bigamous marriage
1. The first marriage should be perfectly valid.
2. The second marriage should have been solemnized
Whether a person can be prosecuted for bigamy if the first marriage is voidable.
Whether the first wife can get the second marriage annulled under section 11 of HMA, 1955.
Whether the first wife or husband can ask for injunction from the court.
What are the remedies available to second wife in bigamous marriage?
In Priya v Suresh the SC held that the second marriage cannot be taken to be proved by the mere admission of the parties; essentials rites and ceremonies must be proved to have taken place.
In Yamunabai v Anantrao SC held that second wife has no status of wife.
Dr. N.A.Mukerji v State the Allahabad high court held that-three ceremonies-one was moon ceremony-second was exchange of garland in kali temple after walking seven steps , an imitation of saptpadi-third performed before Guru Granth Sahab, an imitation of sikh ceremony-such mock ceremonies of marriage does not constitute valid ceremonies-mere intention will not make them husband and wife.
Whether the conversion to Islam entitles the husband to have more than a wife at a time.
– Sarla Mudgal v Union of India SC 1995 the apex court held that a marriage performed under this Act cannot be dissolved except on the grounds available under section 13. The parties who have solemnized the marriage under this act remain married even when the husband embraces Islam in pursuit of another wife.
– Lily Thomas v Union of India SC 2000
-Polygamy is not encouraged in Islam and is an exception and not a Rule. It is for the maulvis and Muslim men to ensure that they do not abuse the Quranic injunctions to justify the heinously patriarchal act of polygamy in self-interest, the court observed. Gujarat High Court held that a Muslim cannot be prosecuted be prosecuted for Bigamy [S.494 IPC] in the absence of a Uniform Civil Code.
– The Supreme Court in 2019 acquitted a 65 year old man from Kerala accused of ‘bigamy’ after recording the compromise arrived between him and his ‘first’ wife. His ‘first’ wife, who married him in the year 1993, had filed the complaint alleging that, in 1994, he married another woman and started residing with her after abandoning her and their four children. In the year 2000, the Trial Court convicted the man under Section 494 of Indian Penal Code and sentenced him to undergo imprisonment of one year. The revision petition he had filed before the High court in the year 2003 was disposed only last year. The High Court took note of the birth certificate of the son born to him to his second wife, to hold that the second marriage is proved. The high court, while affirming the conviction, had observed: “The four children born in the wedlock have now grown up, and the first child must be now aged about 25 years. A reconciliation and reunion is not possible at all. It appears that the revision petitioner is now happy with the second wife and children. Anyway, the wrong or the offence committed by him cannot be condoned. He went for a second marriage without getting the first marriage dissolved. He must get some sentence for what he did.” Reducing the sentence to one month imprisonment, the Justice P Ubaid had said: “Still I feel that a harsh sentence may not be justifiable in the present circumstances. He must be now aged about 65 years. I feel that a nominal jail sentence for a month, and a direction to pay adequate amount of compensation to the complainant will do justice to both sides. The complainant has been residing separately from the accused for years, and one can imagine the sufferings undergone by her to look after the children; four in number. Let her be paid adequate compensation.” He filed appeal before the Apex Court. During the pendency of the appeal, he arrived at a compromise with his first wife. The wife filed an affidavit before the Court that they have settled the matter. The police report also stated that they have settled the matter and are living together with their children. Then the bench comprising of Justice R. Banumathi and Justice Dinesh Maheshwari recorded the compromise and set aside the sentence of imprisonment and acquitted him.
– No Compassionate Appointment to children born out of bigamous marriage. M. Muthuraj vs. The Deputy General of Police Tamil Nadu Police Department.
– Draupada @ Draupadi Jaydeo Pawar and Others … vs. Indubai d/o. Kashinath Shivram Chavan and AnotherSecond ‘Wife’ in bigamous marriage cannot claim to be a ‘widow’ entitled to pension: Bombay HC https://www.livelaw.in/second-wife-in-bigamous-marriage-cannot-claim-to-be-a-widow-entitled-to-pension-bombay-hc/
SECTION (7, 7A) AND SECTION 5(I)
Bhaurao Shankar Lokhande v State of Maharashtra SC 1965 , the court held that the essential ceremonies of Hindu marriage are (i) invocation before the sacred fire and (ii) saptapadi. These ceremonies can be dispensed with only if custom permits. Unless the marriage is celebrated or performed with proper ceremonies and due from it cannot be said to be solemnized. Proper solemnization is essential to constitute the offence of bigamy. Thus, a marriage without the performance of essential ceremonies laid down in section 7 is not a valid marriage.
S. Nagalingam v Sivagami SC 2001, in this case the second marriage was performed in accordance with provision of s.7A HMA, 1955. The Supreme Court holding the appellant guilty of bigamy held that saptapadi is an essential ceremony for a valid marriage only in cases where it is admitted by the parties that it is an essential ritual to be performed for the marriage as per the personal law or form of marriage applicable to them.
Adultery [sec. 13(1)(i)]
1. Judicial separation: for judicial separation, the petitioner had to prove the single act of adultery of the respondent.
2. Divorce: the petitioner had to prove that the respondent was living in adultery.
-Mere admission of the respondent in cross examination is not enough to prove adultery.
– A married woman who has been seen more than once with a stranger with explanation leads to an irresistible conclusion that she had committed adultery.
– The wife stayed in a hotel room with other person who, later, managed to erase evidence of entry in hotel’s visitor’s book. This fact becomes an evidence for adultery.
|Hindu Marriage Act, 1955 Section 13 1(i) and 10||Voluntary sexual intercourse after marriage with another||Divorce or judicial separation|
|Special Marriage Act, 1954 Sections 27(1)(a) & 23(1) (a)||Voluntary sexual intercourse with another after marriage||Divorce judicial separation|
|Parsi Marriage and Divorce Act, 1936 Section 32(d) and 34||Adultery by the defendant after marriage. Suit to be filed within two year of knowledge||Divorce judicial separation|
|Indian Divorce Act, 1869 Section 10 (1)(i) and 22||Respondent’s adultery||Divorce or judicial separation|
|Dissolution of Muslim Marriage Act, 1939 section 2(viii)(b)||No explicit reference to adultery, but husband associating with women of ill repute or leading an immoral life, is in substance, a species of adultery Ground available only to wife.||Divorce|
– Fowler v Fowler
– Forbes v Forbes
– Satya v Siri Ram
– Sushil Kumar Verma v Usha
– K. Bhavani v K.Lakshmana Swamy
|Hindu Marriage Act, 1955 Sections 13(1)(i) and 10||Treated petitioner with cruelty after marriage||Divorce or judicial separation respectively|
|Special Marriage Act, 1954 Section 27(1)(d) and 23||Treated petitioners with cruelty after marriage||Divorce or judicial separation respectively|
|Indian Divorce Act, 1869 Section 10(x) and 22||Treated the petitioners with such cruelty as to cause reasonable apprehension of harm or injury||Divorce or judicial separation respectively|
|Parsi Marriage and Divorce Act, 1936 Section 32(dd) and 34||Treated plaintiff with cruelty or behaved in way as to render t in the judgment of the court improper to compel the plaintiff to live with defendant.||Divorce or judicial separation respectively|
|Dissolution of Marriage Act, 1939 Section 2(ix)||Six conditions/situations explained which would constitute cruelty to wife||Dissolution of marriage. Relief available only to wife|
|Indian Penal Code, 1860 Section 498A (Section invoked only by a marriage woman against her husband and/or his relatives)||Wilful conduct of husband and/or his relatives which is of such nature ad is likely to drive woman to suicide or cause grave injury or danger to life. Only husband and/or his relatives liable.||Punishment of imprisonment upto three years and also fine|
|Protection of Women from Domestic Violence Act, 2005 Section 3, Domestic Violence on any woman in a Domestic relationship||Physical mental, verbal sexual, economic abuse, etc.,||Protection order, residence order, monetary relief etc.,|
What are the defences of cuelty?
Here, the bench comprising Justice Ashok Bhushan and Justice KM Joseph was considering the submission that since complaint is not made by the woman, but filed by her father, it is not maintainable. Rejecting this contention, it held that the Section 498A of the Indian Penal Code does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative.There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected, it said.
In September 2018, a three judge bench modified the directions issued in Rajesh Sharma case for preventing misuse of Section 498A of Indian Penal Code. It recalled the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police. Other directions issued by the two judge bench were not interfered with.
Sheenu Mahendru Versus Sangeeta @ Soniya–Wife Expected To Be With Husband’s Family; Cannot Compel To Stay Separated From Mother-In-Law Without ‘Justifiable’ Reason: U’khand
The sine quo non of actual desertion are as follows:
– 1. Spouses must have parted or terminated all joint living
– 2. The deserting spouse must have intention to desert the other spouse.
– 3. The deserted spouse must not have agreed to the separation.
– 4. The desertion must have been without reasonable cause.
– 5. The desertion must continue for the requisite statutory period of 2 years.
– 6. Factum and animus need not commence at the same time.
– Desertion is not withdrawal from place but from a state of things(cohabitation).
– The supreme court in Savitri Pandey v Prem Chand Pandey held that desertion means withdrawing from matrimonial obligations and not withdrawal from place.
– If a spouse creates a situation or conducts in a manner that the other spouse is compelled to leave the matrimonial home, then the spouse who forced the other to leave the matrimonial home is the deserter and not the spouse who left the matrimonial home.
– Lang v Lang
– Bowron v Bowron
– Jyotish Chandra v Meera
|Hindu Marriage Act, 1955 Section 13(i)(b) and 10||Desertion for not less than two years||Divorce or judicial separation|
|Special Marriage Act, 1954 Section 27 and 23||Desertion for not less than two year||Divorce judicial separation|
|Indian Divorce Act, 1869 Section 10(ix) and 22||Desertion for not less than two year||Divorce or judicial separation|
|Parsi Marriage and Divorce Act, 1936 Section 32(g) and 34||Desertion for not less than two yeas||Divorce or judicial separation|
|Dissolution of Muslim Marriage Act, 1939 Section 2(iv)||The husband has failed to perform without reasonable cause, his marital obligations for period of three years||Divorce (Relief on this ground available only to wife)|
– In the words of Subharao ,j.,” willful neglect is designed to cover constructive desertion and thus it must satisfy the ingredients of desertion.
– It adds new dimension to the notion of desertion.
– It will amount to willful neglect if a person consciously acts in a reprehensible manner in discharge of these obligations.
– Failure to fulfil basic marital obligations, such as denial of company or denial of marital intercourse, or denial to provide maintenance will amount to willful neglect.
– Termination of desertion
– 1. Resumption of cohabitation
– 2. Resumption of marital intercourse
– 3. Supervening animus revertendi, or offer of reconciliation.
– Bipinchandra v Prabhavati
– Laxman v Meena
– Dastane v Dastane
|Hindu Marriage Act, 1955 Section 10(i) and 13(1)(ii)||Both spouse entitled. Relief available to husband and wife on respondent’s ceasing to be a Hindu by conversion to another religion||Judicial separation or Divorce|
|Hindu Adoptions and Maintenance Act, 1956 Section 18(2)(f)||Husband ceasing to be Hindu by converting to another religion||Wife entitled to separate Residence and maintenance|
|Indian Divorce Act, 1869 Section 10(1)(ii)||Relief available to both parties on ground of respondent’s conversion||Dissolution of marriage|
|Convert’s Marriage Dissolution Act, 1866 Section 4.5||Husband or wife converting or Christianity||Converted spouse may use for conjugal company and if no cohabitation, marriage may be dissolved|
|Prsi Marriage and Divorce Act, 1936 Section 32(i) and 34||(a) Both husband and wife entitled to relief on respondent’s ceasing to be a Parsi by converting to another religion||Divorce or judicial separation|
|(b) Suit to be filed within two year of knowledge of the conversion.|
|Special Marriage Act, 1954||This being a secular legislation, conversion is no ground for relief||No relief|
|Dissolution of Muslim Marriage Act, 1939 Section 4||Wife (i) If a wife who is a non- Muslim before marriage converts back to her earlier faith (ii) If a Muslim married woman renounces Islam and embraces another faith||Instant dissolution of marriage. No automatic divorce but wife entitled to obtain dissolution no ground specified under section 2.|
|Husband On husband’s conversion to another religion.||Automatic dissolution of marriage.|
The apex court in Bipinchandra v Prabhavati clearly brings out the following ingredients of desertion as a ground for matrimonial relief:
(i) Factum of desertion by deserting spouse.
(ii) Animus deserendi or intention to bring cohabitation permanently to an end.
(iii) Absence of consent to such separation by the deserted spouse.
(iv) Absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. If the spouse who withdraws from the other has reasonable excuse for so doing, he or she cannot be charged with desertion.
(v) The desertion must have continued at least for the prescribed statutory period immediately before the presentation of the petition.
(vi) The deserting spouse may put an end to desertion by coming back to the deserted spouse before the statutory period is over or even after that period, but before proceedings for divorce have been filed.
(vii) If the deserted spouse unreasonably refuses the offer of the deserting spouse, then the latter will be in desertion and not the former.
(viii) The offence of desertion has to be proved by the plaintiff who alleges desertion by the respondent.
(ix) The offence of desertion commences when the fact of separation and animus deserendi co-exist. It is, however, not necessary that they should commence at the same time.
(x) The party leaving the matrimonial home may not necessarily be the one guilty of desertion. Quite often, it is the other party who creates a situation that impels the spouse to leave the house. This is known as constructive desertion. In this situation, it is the party who creates such situation who is guilty of desertion.
(xi) To prove desertion in matrimonial cases, it is not always necessary that one of the spouses should have left the company of the other, as desertion could be proved while living under the same roof also. In other words, desertion may not be withdrawal from a place but withdrawal from a state of things. It may not be unlikely that the parties are living in the same house, and yet one might have deserted the other, and conversely, they may be living physically apart and yet not in desertion. ‘Desertion cannot be equated with separate living by the parties to the marriage.