Jurisdiction, Procedure and Incidental Matters of the Hindu Marriage Act

(ii) The respondent, at the time of the presentation of the Petition, resides; or

(iii) The parties to the marriage resided together; or

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(iv) In case the wife is the petitioner – where she is residing on the date of the presentation of the petition; or

(v) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent—

(a) Is at that time residing outside the territories to which the Act extends, or

(b) Has not been heard of as being alive for a period of seven years or more by those persons who would have naturally heard of him if he were alive.

The Delhi High Court has held that the expression “resided together” used in this section refers to actual residence of the parties, and does not include marital relations as a necessary ingredient. As the Court observed, residing together does not mean having sexual intercourse. (Renu Vig v. Surendar Kumar, A.I.R. 1986 Del. 33)

Contents and Verification of Petition:

S. 20 requires that the Petition for any relief under the Act must distinctly set out the nature of the case and the facts on which the claim to relief is founded. It must also state (except in a Petition under S. 11) that there is no collusion between the parties to the marriage. The statements contained in the Petition have also to be verified by the Petitioner (or some other competent person) in the manner in which Plaints have to be verified, and such statements may be referred to as evidence at the time of the hearing.

Application of the Code of Civil Procedure (S. 21):

Except as otherwise provided by the Act, all matters of procedure under the Act are to be regulated by the Civil Procedure Code. The Act also confers on the High Courts, the power to make rules regulating the procedure to be adopted for the purpose to implementing the various provisions of the Act.

Power to Transfer Petition in Certain Cases:

S. 21A of the Act provides that if a Petition under the Act has been presented to a District Court for judicial separation (under S. 10) or for divorce (under S. 13), and subsequently another Petition is presented by the other party to the marriage for judicial separation or for divorce, in the same District Court, or in a different District Court, in the same State or in a different State,-

(a) If the Petitions are presented to the same District Court- both the Petitions are to be tried and heard together by that District Court;

(b) If the Petitions are presented to different District Courts,- the subsequent Petition is to be transferred to the District Court in which the earlier Petition was presented, and both the Petitions are to be heard and disposed of by the District Court in which the earlier Petition was presented.

Special Provisions Relating to Trial & Disposal of Petitions under the Act:

S. 21B provides that the trial of a Petition under the Act should, as far as is practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary, and records the reasons for doing so.

It is further provided that all Petitions and Appeals are to be disposed of as expeditiously as possible, and an endeavour is to be made to dispose of a Petition within six months from the date of service of the notice of the petition on the Respondent, and an Appeal within three months from the date of the service of the notice of the Appeal on the Respondent.

Documentary Evidence:

Notwithstanding anything in any enactment to the contrary, no document is inadmissible in evidence in any proceeding at the trial of a Petition under the Act on the ground that it is not duly stamped or registered (S. 21C).

Hearing in Camera (S. 22):

The general rule of law is that every Court of justice is open to every person, and that all suits (including matrimonial suits) should be heard in open Courts. This rule is subject to certain limitations, and it was, therefore, formerly provided that a proceeding under the Act was to be conducted in camera,—

(a) If either party so desired, or

(b) If the court so thought fit.

Clauses (a) and (b) above have now been deleted from S. 22, (by the 1976 Amendment), the effect being that all proceedings under the Act would now have to be conducted in camera.

Further, it is also not lawful for any person to print or publish any matter in relation to any such proceeding, except a judgment of a High Court or of the Supreme Court, and that too, with the previous permission of the Court, under pain of fine upto a maximum of Rs. 1,000.

Relief for Respondent in Divorce and Other Proceedings:

A new section, namely S. 23A, was introduced in 1976, to provide relief to the respondent in divorce and other proceedings. It has been provided by this section that in any proceeding for divorce or judicial separation or- restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of the petitioner’s adultery, cruelty or desertion, but may also make a counter-claim for any relief under the Act on that ground. In such a case, if the petitioner’s adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Custody of Minor Children (S. 26):

S. 26 provides that in any proceeding under the Act, the Court may, from time to time, pass interim orders and make provisions as regards the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

Similarly, even after passing the decree, the Court may, upon an application for the purpose, make similar orders from time to time. The Court may also revoke, suspend or vary such orders from time to time.

Needless to mention, the most important consideration for the Court under this section would be the welfare of the minor.

The term “children” (used in this section) would include not only legitimate children, but also those children who are born out of void or voidable marriages, and are deemed to be legitimate under S. 16 of the Act.

It has been observed that in matters relating to custody of a minor, the Courts should look at the substance of the application, and should not pay too much importance to mere technicalities of the pleadings. (Snehlata v. Mahendra, A.I.R. 1980, Raj. 64)

As observed by the Orissa High Court, S. 26 vests a complete discretion in the Court to make such orders as it deems fit and proper, taking into consideration, the welfare of the minor. (H. Dasgupta v. S. Misra, A.I.R. 1985 Orissa 239)

In one case, the question of the custody of a girl of seven years was before the Court. Admittedly, the girl was away from her father since five years and was greatly attached to the mother, who had a steady income. The Court felt that she would not find any happiness, if placed in the father’s custody, and that her welfare would be fully protected if she remained in the custody of her mother. (Archana Barthakur v. Dr. Ranjit Barthakur, A.I.R. 1985 NOC 125 Gauhati)

In Lekha v. P. Anil Kumar (2006 (12) SCALE 163), the Supreme Court has observed that remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother and that paramount consideration should be given to the welfare of the child.

The Court observed that the High Court had committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children.

Disposal of Property:

In order to avoid multiplicity of litigation, S. 27 lays down that in any proceeding under the Act, Court can make such provisions in the decree, as it deems just and proper, with respect to any property presented jointly to the husband and the wife at the time of the marriage. It is to be noted that in the absense of such an express provision, a Matrimonial Court would have no jurisdiction to dispose of any property jointly owned by the spouses.

Appeals from Decrees and Orders:

S. 28 provides that all decrees made by the Court in any proceeding under the Act are appealable as decrees of the Court made in the exercise of its original civil jurisdiction, and an appeal lies to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction.

Every appeal under this section must be preferred within ninety days from the date of the decree. However, there can be no appeal under S. 28 on the subject of costs only.

Enforcement of Decrees and Orders:

S. 28A provides that all decrees and orders made by the Court in any proceeding under the Act can be enforced in the same manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being are enforced.

Powers and Duties of the Court: Bar to Matrimonial Relief:

The following rules, laid down by S. 23, relate to the powers and duties of the Court in the matter of granting any of the reliefs referred to in the Act. No relief can be granted to the Petitioner if any of the absolute bars (listed below) apply to the facts of the case.

(1) A decree for restitution of conjugal rights (S. 9), judicial separation (S. 10), declaration of nullity of marriage (S. 11), annulment of a voidable marriage (S. 12) or divorce (S. 13) can be granted only when any ground for granting the relief asked for is established to the satisfaction of the Court.

(2) The Petition must be dismissed if the Court is satisfied that the Petitioner, though able to establish the ground for granting relief, is, in any way, taking advantage of his (or her) own wrong or disability.

(3) Likewise, the Petition must be dismissed if the Court is satisfied that the Petitioner has, in any manner, been accessory to, or has connived at or condoned, the acts of adultery, or has, in any manner, condoned the cruelty of the Respondent.

(4) Similarly, the Petition (not being a Petition presented under S. 11), must be dismissed if the Court is satisfied that there is any collusion between the parties.

(5) The Court would also dismiss the Petition if there has been any unnecessary or improper delay in instituting the proceedings.

(6) The Petition may also be dismissed, when a divorce is sought on the ground of mutual consent, if such consent has been obtained by force, fraud or undue influence.

(7) The Petition would be dismissed also if there is any other legal ground for not granting the relief.

It is also expressly provided that before granting relief under the Act, it is the duty of the Court to make every endeavour to bring about reconciliation between the parties wherever it is possible to do so.

In order to aid the Court in bringing about such reconciliation, the Court may adjourn the proceedings for a reasonable period (not exceeding fifteen days) and refer the matter to any person named by the parties or nominated by the Court (if the parties fail to name a person). Such a person must report to the Court as to whether a reconcilable can be, or has been, effected, and the Court must have due regard to this report when disposing of the matrimonial proceedings.

The above rules apply as much too ex parte proceedings as to proceedings which are defended or contested by the other side.

Lastly, when a Court passes a decree of divorce dissolving a marriage, it must give a copy of the decree, free of cost, to both the parties.

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