Tag Archives: dissolution of marriage

Khula – Mode of Dissolution of Marriage

khula” is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of “khula” for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The “khula” is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736

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Condonation of Cruelty – Matrimonial Wrongs

Condonation of cruelty is a benevolent and generous act of an offended spouse forgiving the misdeeds of the offending spouse and restoring the latter to the original company. In every condonation there is an implied condition that the excused spouse will not repeat or commit matrimonial wrongs in future. No wrong is permanently wiped out by condonation; but is only hibernated. An act of cruelty once condoned could certainly revive and give rise to a cause of action for dissolution of marriage, when the offending spouse exploits and takes unfair advantage of the generosity or the benevolence shown by the wronged spouse and takes to matrimonial misdeeds over again. This principle of law could be gathered from the decision of the Hon’ble Apex Court in Dr. N.G. Dastane v. Mrs. S. Dasane (1975) 2 SCC 326, wherein it was held that ‘but condonation of a matrimonial offence is not to be likened to a full Presidential pardon under Art.72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.’ Santhosh Kumar S. v. Jayasree Damodran, Mat. Appeal No. 547 of 2013. (Kerala)

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Divorce Petition – Before Lapse of One Year From the Date of Marriage

In Manish Sirohi v. Smt. Meenakshi, AIR 2007 All 211, the husband made an application for divorce and the wife took a stand in the written statement that she is not inclined to continue marital relationship with her husband. However the said application was rejected by the court below on the ground that as per Section 14 of the Act, court cannot entertain any petition for dissolution of marriage unless at the date of presentation of the petition one year has elapsed from the date of the marriage. When the matter reached the High Court, it was held as under:

            “We have gone through the provision contained under the proviso to section 14 of the Hindu Marriage Act and we find that the High Court can allow to present the present the petition before lapse of one year from the date of marriage on the ground that the lapse is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted. When differences have occurred which cannot be compromised if at this stage they are separated, they can be able to enjoy their happy marital life elsewhere. Continuance of the litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all. Both the parties have withdrawn their allegations and counter allegations against each other.”

            In catena of cases relating to  matrimonial dispute, the Hon’ble Apex Court has observed that matrimonial disputes have to be decided by courts in a pragmatic manner keeping in view the ground realties. For this purpose a host of facts have to be taken into consideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offspring. A. Agarwal v. Principal Judge, 2019 (2) AWC 1735.

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Annulment of Marriage – Concealment of Material Facts

On a careful reading of Clause (c) of Section 12(1) of the Hindu Marriage Act, 1955, it will appear that both the parties, in case of adult, are obliged to divulge mutually and unequivocally the material fact or circumstances to each other before or at least at the time of marriage so much so that element of deception is ruled out. The words material facts or circumstances have not been defined or specified. It varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and the groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely , a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.

            In the case of Saswati Chattopadhyay v. Avik Chattopadhyay, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of the marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earlier marriage was dissolved by consent. When the matter reached to the Family Court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. On an appeal, the Calcutta High court endorsed the view taken by the trial court and observed that premarital status of a party is a material fact which the other party must know before imparting consent for marriage. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2019 (2) AWC 1369.     

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Second Marriage – When Permissible during Pendency of Appeal

Section 15 of the Hindu Marriage Act provides that it shall be lawful for either party to marry again after dissolution of a marriage, if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal the decree of divorce remains final and that either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

       In case during the pendency of the appeal, there is a settlement between the husband and wife, and after entering into a settlement, he does not intend to contest the decree of divorce, his intention can be made clear by filing an application for withdrawal. In that case, he does not have to wait till a formal order is passed in the appeal or otherwise his marriage is unlawful. Following the principles of purposive construction, it was held that the restriction placed on a second marriage in Section 15 of the Hindu Marriage Act, till the dismissal of an appeal, would not apply to a case where parties have settled and decided not to pursue the appeal. Anurag Mittal v. Mrs. Shaily Mishra Mittal, 2019 (132) ALR 725.

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Divorce by Mutual Consent – Cooling off period

Section 13-B of the Hindu Marriage Act, 1955 states as under:
13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
In a recent judgment of the Supreme Court – Devinder Singh Narula v. Meenakshi Nangia, it was held as under:
Section 13-B itself provides for a cooling off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
It is no doubt true that the Legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in Kiran v. Sharad Dutt, (2000) 10 SCC 243, which was considered in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, after living separately for many years and 11 years after initiating the proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before the Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the Act, the Court by invoking its powers under Article 142 of the Constitution granted a decree of mutual divorce at the stage of the SLP itself. In different cases, in different situations, the Court has invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.

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