MATRIMONIAL REMEDIES

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This article is written by Chhavi Tripathi of 3^rd Semester of Atal Bihari Vajpayee School of Legal Studies, CSJM University, Kanpur, an intern under Legal Vidhiya

ABSTRACT

In the intricate tapestry of human relationships perhaps none is as charged profound or potentially strong as marriage. Marriage entitles two individuals to have a sexual relationship which acts as a mark for society, It is a bond of love, dreams and promises including an intricate web of responsibilities, expectations and vulnerabilities that can give rise to conflicts, challenges, and disputes among them. At this particular stage, the concept of matrimonial remedies is highlighted offering a set of legal tools to navigate the sinking marriage.

Matrimonial remedies encompass a set of interventions designed to address the issues faced by married couples. These remedies extend far beyond the legal realm and also dive into the mental relief for both individuals. In essence, matrimonial remedies serve as a bridge between the ideal of ‘happily ever after’ and the realities of life’s unpredictability. Did you know that in India men initiate divorce cases while in other countries women initiate most Divorces?

In this article, we will explore the multiple facets of matrimonial marriage delving into the challenges and complexities while seeking matrimonial remedies their procedures with some landmark cases.

Keywords: Marriage, Sexual relationships, Matrimonial remedies, Divorce cases, Landmark Cases, challenges, conflicts.

INTRODUCTION

“Nobody is allowed to take advantage of his wrong”- J. Chandrachud

Marriage is considered to be the most significant institution of society. In India, it is considered a sacrament. Earlier it was a norm and was understood the bond of seven lives, divorce or separation was not even a concern. Women, in any sort of life, were obliged and forced to live with their husbands and perform all the duties of the toxic marriage but what has changed today is that women and men to a great extent are trying to be on equal footing especially women who did not want to be depended on anyone financially, socially and economically. India is considered to have the lowest divorce rate globally, estimated to be around 1.1%. but, in the past few years, India is witnessing a rise of 50% to 60% in divorce rates, especially in the civic areas.[1]

During prehistoric times, there was nothing called marriage and the caveman could simply drag women of his choice to mate with and for procreation, but have you noticed just like the caveman today’s husbands are as possessive as them?[2] It was realized that things would not able to work like this and a need was felt for laws and regulations. Women were given the legal right against bigamy for the first time.

Till today there are numerous causes for ending the marital relationship. Some of them are:

i. Intimacy

One of the profound reasons for conflicts is intimacy or romance. This desire is natural and if one partner is unsatisfied with the other it can end even a successful marriage as both partners equally expect from each other love and caring.

ii. Communication gap

The younger generations today are mostly facing issues of communication, lack of trust and unable to confess things to each other.

iii. Lack of trust

Communication is the thing which maintains the peace and trust in every relationship. Lack of communication gives the way for a lack of trust.

After getting this far, we have gone through the major reasons and what has changed since earlier now here comes the most important discussion.

II. ESCORTING AHEAD THE CONCEPT OF MATRIMONIAL REMEDIES

The Hindu Marriage Act, of 1955[3] was introduced by the parliament of India to amend and codify Hindu marriages in India. This act applies to “any person who is Hindu by religion or a Buddhist, Jain, or Sikh and to any person housed in the home of India” [4]

CONDITIONS FOR A VALID HINDU MARRIAGE

Section 5 mentions a marriage may be solemnized between two Hindus if the following conditions are fulfilled namely: –

i. Neither party has a living spouse at the time of marriage

It is not permissible to have two wives at the same point in time as it amounts to bigamy. The Supreme Court in a case held that “in a bigamous marriage the status of the second wife is null and void”[5].

The Supreme Court later in Sarla Mudgal v. Union of India[6] held that there is no automatic dissolution of the marriage of a Hindu apostate to Islam and the marriage of a Hindu apostate to Islam is against the Hindu Marriage Act 1955 provisions. This decision was reviewed in Lily Thomas v. Union of India[7] where it was mentioned that a marriage cannot be dissolved according to other personal laws when it has been solemnized according to one personal law

ii. Neither party is incapable of giving valid consent, has been suffering from a mental disorder or has been subject to recurrent attacks of insanity.

iii. According to the Hindu Marriage Act the age for 15 years for the bride and 18 years for the groom, it was later fixed by the Child Marriage Restraint Act of 1978 for the bride 18 years and the groom 21 years.

iv. Parties are not within the degrees of prohibited relationship, “prohibited relationship in respect of two persons is if one is a lineal ascendant of the other, if one is a wife or a husband of lineal ascendant or descendant of the other or if one is a wife of brother or father or mother’s brother or grandmother or grandfather’s brother of the other”.[8]

v. Parties are not within a sapinda relationship, “A sapinda relationship concerning any person extends as far as the third generation in the line as an ascent through the mother and the fifth generation in the line of ascent through the father, the line being traced upwards from the person concerned who shall be counted as the first generation and two persons are called “sapindas” if one is a lineal ascendant of the other or if they have a common lineal ascendant[9]

EFFECT OF CONTRAVENTION OF THE PROVISIONS OF SECTION 5

When there is a contravention of section 5 clause (i), Marriage will be null and void as per section 11 of the Hindu Marriage Act, 1955 as well as punishable under section 17 of the H.M.A.
Contravention of section 5 clause (ii), marriage will be voidable under section 12 subsection (1) clause (b).
The (iii) clause contravention results in neither void nor voidable marriage but under section 18 of the H.M.A. it is punishable and valid with a fine of 1 lakh rupees and 2 years of imprisonment.
Contravention of Section 5 Clause 4 leads to void marriage under Section 11 with a punishment of one month or 100 rupees fine or both under Section 18 of the H.M.A.
If the parties are found sapindas to each other then it will be a void marriage under section 11.

RESTITUTION OF CONJUGAL RIGHTS

Section 9 of H.M.A. and Section 22 of SMA mention judicial separation. Before discussing this section let’s understand what the word “Restitution” means. It means the restoration of something lost or it’s like making things right. A marital bond entitles husband and wife to have the society of each other.

Conjugal rights resonate- the right of matrimonial intercourse and, the right of a couple to have each other’s society but in certain cases either party withdraws from the society of the other which means there is no maintainability of social and conjugal rights. A decree of restitution if it is satisfied:

Either party has withdrawn from the society of the other
Such withdrawal is without any reasonable reason
The court is satisfied with the truth of the statements of the petition
Legally there is no hindrance in granting relief

Effect of Non-compliance with the decree of restitution then the property is attached of either spouse under order 21 rule 32 of CPC. The constitutional validity of this section has been administered by courts in various matters.

In the case of T Sareetha v. Venkata Subbaiah,[10] it was held by the Andra Pradesh High Court that this section 9 of the H.M.A. was violative of the triangle of the constitution i.e. articles 14, 19 and 21 as if the decree of restitution is passed it away the autonomy of the person over its own body and it not only makes the spouse to live with other but to also have sexual intercourse.

In a similar case, the Supreme Court took a very different approach and said that “introducing constitutional law into family law is same as “introducing a bull into a China shop”[11]

JUDICIAL SEPARATION

Section 10 of the H.M.A. and Section 23 of SMA state that either party can file a petition against the other party for judicial separation. As the name suggests Judicial separation should not be correlated with divorce. This degree is lesser in divorce, Husband and wife are absolved from living together, it does not put an end to the marriage, and after one-year judicia separation may be granted.

Section 10 of H.M.A. states, “Any party may present a petition for Judicial separation on any grounds mentioned in section 13 subsection (1) and (2)” and it further states that if the court is satisfied with the truth of the statements of facts, the court can grant the degree of Judicial separation.

Under Section 13(A) of the H.M.A., the court may pass a decree of judicial separations on any grounds mentioned in Section 13 except for the clauses: (ii) conversion, (vi) renunciation, and (vii) presumed death.

Section 13 subsection 2 mentions the grounds of divorce for women only if the husband commits bigamy, he is proven guilty of rape or sodomy or bestiality, or a decree of maintenance has been passed under section 125 of Cr.P.C and section 18 of the Hindu Adoption and Maintenance Act 1956. In the case of Smt. Sandhya Sen v. Sanjay Sen (2021), the Court observed that in cases where divorce is by collective concurrence, the provision of judicial separation cannot be granted.[12]

DIVORCE

Section 13 of the H.M.A. and Section 27 of the SMA explicitly mentions divorce under Hindu law. Divorce came from the Latin term ‘Divortium’ which means to separate. This is the end of a marital bond. The concept of divorce was introduced by the Hindu Marriage Act 1955. The vittles related to divorce are mentioned:

Section 13
Section 13[1A]
Section 13 A
Section 13B
Section 14
Section 15 of the Hindu Marriage Act 1955

Under Section 13 of the Hindu Marriage Act, the following are the grounds for divorce namely:-

i. Adultery: It involves having sexual intercourse with a person other than his/her spouse. This is mentioned under section 13 subsection 1 clause (i). The Personal Law Amendment Act 1976 embedded adultery as a ground for divorce.

Case- Joseph Shine v. Union of India[13], It was held by CJI Deepak Mishra adultery is no longer to be a criminal offence as the court regarded this issue as a personal one and not a crime as it does not fit into the ambit of crime, hence adultery would only be considered as a valid ground for divorce and a civil wrong and not a wrong against the society as a whole.

ii. Cruelty: this ground is mentioned under section 13 subsection 1 clause (i-a), Either party can bring a petition against the other if either of them has treated him/her with cruelty. The most significant case law associated with cruelty is;

Case- Narayan Ganesh Dastane v. Suchita Naaraayan Dastane[14] more commonly known as Dastane v. Dastane, The Court in this case laid down several tests in determining whether an instance of cruelty has been there or not:

a. It is proved under the Law of Evidence that said act amounts to cruelty

b. Petitioner has an apprehension in mind of real injury or harm.

c. Petitioner has himself not conducted the act of cruelty.

d. The petitioner should not impose false allegations taking advantage of his position

Case- Russell v. Russell[15], the term of cruelty was defined as any danger to life, limb, body or mental harm.

iii. Desertion: This ground is mentioned under Section 13(1)(ib), desertion means when either spouse has withdrawn from the marital obligations. This clause mentions certain essentials:

a. Must be a factum of separation

b. Animus disrendi i.e., the intention of either spouse for such desertion was to end the marital relationship.

c. Such conduct of either spouse is without any reasonable cause.

Case law

Bipin Chander Jaisinghbhai Shah v. Prabha Wati[16], this case lad down several factors to determine whether the desertion has happened or not;

a. One has abandoned the other party

b. Such a spouse intends to end the relationship

c. There was no reasonable ground for such desertion

d. The desertion has happened for more than 2 years

iv. Conversion: This clause explicitly mentions that if either of the spouses has ceased to be a Hindu by conversion to another religion, the petition can be filed by the other party for divorce provided the remedy under this is not available to the converting party.

v. Unsound mind: If either party has been suffering from mental illness, incomplete development of mind and schizophrenia to such an extent that it cannot be reasonably expected by the other party to live with the unsound mind.[17]

vi. Leprosy: As mentioned under section 13(1)(iv), Leprosy as a ground for divorce was omitted by The Personal Law [Amendment Act] 2019, as earlier it used to be an incurable disease but now it is a curable disease.[18]

vii. Renunciation: this term means formal rejection of something, typically a belief or a claim. When one party has renounced the world by entering into any religious order. The renunciation of the world amounts to civil death.

viii. Presumed death: If a person is not seen or heard alive for a period of 7 years or more by those who actually would have heard him/her if the party had been alive.

III. WHAT ARE THE BARS TO MATRIMONIAL RELIEF?

Till now we have discussed matrimonial remedies now it’s time to shed light on what are the bars of matrimonial remedies.

Hindu Marriage Act, 1955

The remedies discussed so far under the H.M.A. 1955 have certain bars that have to be crossed to get relief under the H.M.A. This has been discussed under section 23 of the H.M.A. 1955. This provision states that if any party is seeking relief from clauses (a) to (e) of Section 23(1) of the Hindu Marriage Act 1955, then such grant for relief shall be quashed:

Accessory

According to section 23(1)(b), it is mentioned that the person who has filed a petition for matrimonial remedies under H.M.A. 1955 cannot in any sort of way be responsible for any conduct done by the other person, the petitioner should not be even a minor fault. This bar only applies to adultery which has been made a ground for divorce under 13 subsection 1 clause i.

Condonation

Condonation has two main ingredients: forgiveness and reinstatement. Condonation simply means an act of forgiveness of the crime committed by the respondent in matrimonial cases. The court in such cases as cruelty examines whether the act has been condoned by the appellant or not.

Collusion

The clause (C) OF THE H.M.A. mentions collusion as an absolute bar. Collusion refers to a mutual agreement between the spouses to obtain matrimonial relief by misrepresentation in the court by producing false evidence. Hence, it does not include divorce by mutual consent.

The Allahabad High Court has observed that “Nuptial controversies between the spouses should be quashed when the parties have resolved their entire dispute through a concession deed properly filed and vindicated by the court.”[19]

Other legal grounds

Section 23(1)(e) states that matrimonial relief shall not be granted if there is any other legal ground confining nuptial relief. This is a residuary bar.[20]

The Indian Divorce Act, 1869

The Indian Divorce Act, 1869 is the only act that governs divorce among Christians in India. Section 12 of the act states Court on receiving the petition for dissolution of marriage shall examine whether the petitioner has been an accessory to any act, or in connivance or has condoned the act or is going through the said marriage or has committed infidelity.

Section 14 of the act mentions that the court on finding that the petitioner does not fulfil the requirements of any of the bars mentioned under section 12 can pass a decree for divorce.

Conclusion

Marriage is a very complex and delicate issue. The courts while granting matrimonial relief should be careful so that there is no injustice to either spouse. Every marriage brings some responsibilities and duties that need to be satisfied by both parties, the unfulfillment of which brings the parties to courts and expect from court to do justice to them. Nonetheless, the women have become independent has been a major reason for divorce these days not because they are at fault but because instead of being under the dominance of patriarchy they are fighting for their rights. Hence every case should be examined thoroughly by the court which would be quite a difficult task.

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