Tag Archives: hindu marriage act

Hindu Marriage – Status of Wife

Hindu Marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book Digest of Hindu Law, Vol.II, described the status of wife thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: whether she ascends the pile after him or survives for the benefit of her husband, she is a faithful wife.”
Further Colebrooke in his book Digest of Hindu Law, Vol. II quoted the Mahabharata at page 121 thus:
“Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596.

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Filed under Matrimonial Relationship, Status of Wife

Desertion vis-à-vis Wilful Separation

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately pending the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
The quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Mohan Singh Mawri v. Haripriya, 2017 (121) ALR 533.

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Divorce by Mutual Consent – Procedure therefor

Sub-section (2) of Section 13-B of the Hindu Marriage Act apparently is procedural in nature which provides that in case any such application by both the parties is made under Section 13-B(1) and the petition is not withdrawn not earlier than six months after the date of presentation of such petition and not later than 18 months after the said date, the court shall pass a decree of divorce declaring the marriage to be dissolved. However, the court while passing such a decree has to be satisfied, after hearing the parties and after making such inquiry as it thinks fit, as to fact that marriage has been solemnized and that the averments in the petition for divorce by mutual consent are correct. To conduct the inquiry for the purposes of finding the averments made in the application to be correct, Section 13-B (2) provides that the parties are to be heard by the court.
The relevant phrase occurring in sub-section (2) of Section 13-B is after hearing the parties. Since the provisions of Section 13-B relate to separation by divorce by mutual consent, as such in all such matters, ordinarily ‘hearing the parties’ would mean hearing the parties in person. In other words while making inquiry as contemplated in sub-section (2) of Section 13-B, the court concerned has to personally interact with the parties which makes it almost mandatory for the parties to be personally present before the court. Kanwaljeet Sachdev v. State of U.P., 2016 (119) ALR 600.

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Impossibility of – Consummation of Marriage

In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279, the Hon’ble Apex Court held as under:
“A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, he will have to establish that his wife, was impotent at the time of marriage and continued to be so until the institution of the proceedings.”Smt. Sulekha v. Ashok Kumar, 2016 (119) ALR 555.

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Filed under Divorce, Impotency

Cruelty by Wife – Seeking Separation of Husband from his parents

In this case the wife wanted the husband to get separated from his family. The evidence shows that the family was virtually maintained by the income of the husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meager income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.
In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that. Normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the wife to constrain the husband to be separated from the family would be torturous for him and the trial court was right in concluding that this constitutes an act of cruelty. Narendra v. K. Meena, (2016) 9 SCC 455.

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Filed under Cruelty By Wife, Matrimonial Dispute

‘Mother’ and ‘Stepmother’ – Status of

In Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479, it was held as under:

“The expressions ‘mother’ and ‘stepmother’ have not been defined either in the Criminal Procedure Code or in the General Clauses Act, 1897. These expressions have also not been defined by the Hindu Law or the Hindu Adoptions and Maintenance Act, 1956 or by any other law. All that the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides is that the expression ‘parent’ includes a childless stepmother. On a conspectus view of dictionary meaning of the two expressions – ‘mother’ and ‘stepmother’ in various dictionaries, it clearly emerges that there is inherent distinction between the status of a ‘mother’ and ‘stepmother’ and they are two distinct and separate entities and both could not be assigned the same meaning. The expression ‘mother’ clearly means only the natural mother who has given birth to the child and not the one who is the wife of one’s father by another marriage.

A stepmother is one who is taken as a wife by the father of the child other than the one from whom he is born or who has given birth to him. This clearly goes to show that the woman who gives birth to a child and another woman who is taken by the father as his ‘other’ wife are two distinct and separate entities in the eyes of law and who in common parlance are known and recognized as real ‘mother’ and ‘stepmother’. That being so, another woman who is taken as a wife by the father of the child cannot be given the status of a mother to the child born from another woman as there is no blood relation between the two”. Ajay Singh Maurya v. State of Uttarakhand, 2016 (150) FLR 920.

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Divorce – Long Period of Continuous Separation

In the case of K. Srinivas Rao v. D.A. Deepa, 2013 (3) AWC 2462 (SC), it was held as under:
“Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. In V. Bhagat v. D. Bhagat, AIR 1994 SC 337, the court observed that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of cruelty, the court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, where husband and wife had been living separately for more than ten years and a large number of criminal proceedings had been initiated by the wife against the husband, the court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. Smt. Sunaina Mehrotra v. Vijay Mehrotra, 2015 (2) AWC 1621.

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