Category Archives: Marriage and Divorce

Custody of Children under the HMA

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Section 26 of the Hindu Marriage Act says the Court may, from time to time, pass interim orders and make provisions in the decree as it deems are just and proper with respect to the custody, maintenance and education of minor children in any proceeding under the Hindu Marriage Act (of divorce, judicial separation, etc.).

This is done taking the wishes of the children into consideration wherever possible.

The Court may also from time to time make all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders after the decree. This is done upon application by petition for the purpose.

Further, the Court may from time to time revoke, suspend or vary any such orders and provisions it had previously made.

Earlier, the trend was to grant custody of minor children to their mother. However, in recent years, Courts have become far more flexible and there are an increasing number of cases where the father is granted custody. In one such case, that of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, which although not filed under the Hindu Marriage Act, the Supreme Court held that the child’s welfare is the primary factor in deciding in whose custody the child should be place.

The Disposal of Property in Marital Proceedings

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The Hindu Marriage Act does not say very much with regard to the disposal of property in a proceeding under the Act for divorce, judicial separation or otherwise.

Section 27 of the Act merely gives the Court the discretionary power to make provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband and the wife.

Which Court a Divorce Petition Should be Filed in

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Every petition under the Hindu Marriage Act, 1955 must be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:

1. the marriage was solemnized, or
2. the respondent, at the time of the presentation of the petition, resides, or
3. the parties to the marriage last resided together, or
4. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Decrees in Marital Disputes

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Under Section 23 of the Hindu Marriage Act, 1955, in any proceeding under the Act, whether defended or not, if the Court is satisfied that:

1. any of the grounds for granting relief exists and the petitioner is not any way taking advantage of his or her own wrong or disability for the purpose of such relief, unless the marriage is invalid because at the time of the marriage either party was incapable of giving a valid consent of it in consequence of unsoundness of mind; or though capable of giving a valid consent had been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or had been subject to recurrent attacks of insanity or epilepsy;

and

2. where the ground of the petition is adultery, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of,

or where the ground or the petition is cruelty the petitioner has not in any manner condoned the cruelty,

and

3. when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence,

and

4. the petition not being a petition presented under section 11 which deals with void marriages is not presented or prosecuted in collusion with the respondent,

and

5. there has not been any unnecessary or improper delay in instituting the proceeding,

and

6. there is no other legal ground why relief should not be granted,

then,and in such a case, but not otherwise, the court shall decree such relief accordingly.

Before proceeding to grant any relief under this Act, it is the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties although this does not apply to any proceedings where relief is sought on any of the grounds of adultery, cruelty, desertion, conversion, insantity, or the other party’s not having been heard of for seven years or having renounced the world.

For the purpose of aiding the Court in bringing about such reconciliation, the court may, if the parties so desire or if the Court thinks it just and proper so to do adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.

In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

Privacy in Marital Disputes

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Section 22 of the Hindu Marriage Act says that every proceeding under the Act (of divorce, judicial separation, restitution of conjugal rights etc.) is to be conducted in camera and it is not be lawful for any person to print or publish any matter in relation to the proceeding.

However, a judgment of a High Court or of the Supreme Court may be printed or published with the previous permission of the Court.

If any person violates the provisions of this Section, he shall be punishable with fine which may extend to one thousand rupees.

Alternate Relief in Divorce Proceedings under the HMA

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According to section 13-A of the Hindu Marriage Act, 1955, if any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation unless:

1) the other spouse has ceased to be a Hindu by conversion to another religion

2) the other spouse has renounced the world by entering any religious order

3) the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive

Nullity of Marriage : Voidable Marriages under the HMA

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According to Section 12 of the Hindu Marriage Act, 1955 any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds:

(a) that the marriage has not been consummated owing to the impotency of the respondent

(b) that at the time of the marriage, either party was incapable of giving a valid consent to it in consequence of unsoundness of mind; or though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity or epilepsy

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The petition must not be presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered.

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner provided that the petitioner was at the time of the marriage ignorant of the facts alleged and that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage.