MATRIMONIAL REMEDIES
Matrimonial remedies permissible under Hindu Marriage act are classified into two categories:
1. Main Matrimonial remedies- The main matrimonial remedies are decree of nullity,
restitution of conjugal rights, judicial separation and divorce.
2. Ancillary Matrimonial remedies- The ancillary matrimonial remedies include
maintenance, custody and guardianship of children and distribution of matrimonial
property.
Case- Dilip vs Ravi1- In this case it was held that A relief for annulment of marriage can only be
claimed by one of the spouses and no other person can seek relief.
DECREE OF NULLITY
A decree of nullity can be granted in two situations firstly in the case of void marriages given
under Section 11 of the Hindu Marriage Act, 1955, secondly in the case of voidable marriages
given under Section 12 of the Hindu Marriage Act. The void marriage under section 11 are void
ab initio and parties can end itself on their own and no need of interference of court, while in the
case of voidable marriage parties cannot make the marriages void on their own and the interference
of the court is necessary.
SECTION 11 OF THE HINDU MARRIAGE ACT
Any marriage solemnised after the commencement of this Act shall be null and void and may, on
a petition presented by either party thereto 2 [against the other party], be so declared by a decree
of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section
5.
In simple words a marriage which is solemnized after this act and contravenes provision given
under Section 5(i), 5(iv) and 5(v), such a marriage will be void.
Section 5(i) deals with the principle of monogamy
Section 5(iv) provides that the parties to the marriage should not come under the prohibited decree
of relationship.
Section 5(v) provides that the parties to the marriage should not be in the sapinda relationship.
SECTION 12 OF HINDU MARRIAGE ACT
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“(1) Any marriage solemnised, 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, namely:—
[(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(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 (2 of 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
circumstances concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—
(i) the petition is presented more than one year after the force had ceased to operate or, as the case
may be, the fraud had been discovered; or
(ii) 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;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is
satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the
commencement of this Act within one year of such commencement and in the case of marriages
solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of [the said ground]”
In simple words this section deals with the concept of the voidable marriage and provides that any
marriage which is solemnized under this act can be annulled by the court in the following grounds:
(i) Impotency- It is the ground given under Section 12(1)(a). The term impotency means
that the any party is incapable of completing the normal act of marital intercourse.
When one of the party to the marriage is impotent then the other party can make the
marriage voidable owing to such impotency. Impotency can be physical, mental/
psychological, pathological, permanent or temporary, complete or partial 2. Any
aggrieved party whether husband or wife can make marriage voidable on the ground of
impotency.
There are two major conditions given under Section 12(1(a) which are:
1. The marriage has not been consummated- It means that the parties to the marriage have
not done sexual intercourse. If the first sexual intercourse is completed between the party
and the marriage has been consummated. Then the marriage cannot be declared voidable
on the ground of Impotency.
2. Impotency of respondent- The non consummation of marriage is due to the impotency of
the respondent. The impotency of respondent should be necessary, if there is no such
impotency then this section is not attracted.
Case- Sunil K Mirchandani vs Reena S. Mirchandani3- In this case, the husband filed a petition
for the annulment on ground of impotency of wife. But the wife showed the letters written by him
to her which reflected his sexual satisfaction from the wife. So, in this case it was held that since
the marriage is consummated, no remedy can be given for impotency.
(ii) Contravenes Section 5(ii)- Section 5(ii) of the hindu marriage act provides that :
“at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
or
(b) 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
(c) has been subject to recurrent attacks of insanity”
If any party to the marriage contravenes section 5(ii) then in such a situation, the aggrieved party
has the right to make the marriage voidable in the court. Schizophrenia although not explicitly
return in the act but is a valid ground for annulment of marriage under this section. The mental
disorder is a ground for both annulment for marriage and also for divorce. But in case of annulment
of marriage, the parties should be suffering from mental disorder during the time of marriage and
for divorce the party should be suffering from mental disorder after the marriage.
Case- Triveni singh vs State of UP4- In this case it was held that according to this section the
marriage can only be annulled in the disease relating to unsoundness of mind and not on the ground
that wife was suffering from HIV infection or any such disease.
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Family Law-I by Dr. Poonam Pradhan Saxena pg. 132
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(iii) Consent obtained by fraud or force- The consent of the parties to the marriage should
be free and the consent obtained by fraud or force may led to the annulment of marriage
as provided under Section 12(1)(c) of the Hindu marriage. The marriage can only be
made voidable and is not void ab initio. This section also deals with the consent of
guardian in case the marriage of the minor person.
There are various penal consequences in the cases of marriage by fraud. These penal consequences
are defined under section 493 and section 496 of the Indian Penal code. In the current Bhartiya
Nyay Sanhita same sections are given under Section 81 and 83 respectively.
Section 493 of IPC/ Section 81 of BNS states that, “Every man who by deceit causes any woman
who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or
have sexual intercourse with him in that belief, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.”
This section provides the punishment of sexual intercourse done by a man on a women by make
him believe that she is lawfully married wife of him. This section is applicable only for men and
gives punishment to them if found guilty.
Section 496 of IPC/ Section 83 of BNS states that, “Whoever, dishonestly or with a fraudulent
intention, goes through the ceremony of being married, knowing that he is not thereby lawfully
married, shall be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.”
This section is gender neutral and applicable to both husband and wife equally and is punishable
on doing any fraudulent act while undergoing a marriage ceremony.
EXCEPTIONS OF SECTION 12(1)(c)
The exception of marriage done by fraud or force are given under section 12(2)(a). According to
which no petition for annulling a marriage should be made under this ground. In the following
cases:
1. Petition after 1 year - If the petition for annulling the marriage is presented after 1 year
force ceased to operate or the fraud has been discovered, then in such a situation no petition
can be made for annulment of marriage.
2. Consent- If the petitioner with his/ her full consent started living with the other party after
force cease to operate or fraud has been discovered, then in such a situation a petition can
be made for annulment of marriage.
Case- Birendra Rajbongshi vs Parul Rajbongshi5- In this case the husband filed a petition for
annulment of marriage on the ground that such a marriage happened on gunpoint. The marriage
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was solemnized in the year 1983 and husband filed the petition in the year 2015. The court in this
case held that the marriage cannot be annulled due to the birth of son.
(iv) Pregnant by some other person- The fourth ground on which the marriage can be
declared voidable is the pregnancy of wife by the person who is not his husband. It is
immaterial that whether the wife knows about his pregnancy or not. The husband has
the right to make the marriage voidable on the ground of pregnancy by another person.
Case- Banas Kumar Kar vs Binaya Mishra6- In this case court ruled that there should be a
balance between the rights of the man to clarify his genuine suspicion about the child and also to
protect the tarnishing reputation of the wife.
RESTITUTION OF CONJUGAL RIGHTS
The second remedy which the spouse have is the restitution of conjugal rights. The term
‘restitution’ means the act of restoring to the rightful owner something that has been taken away
and the term ‘conjugal’ means pertaining to marriage or to husband and wife in their relations to
each other. So this combinedly means the restoration of the rights which husband and wife have
to each other`s society and marital intercourse.
Section 9 of the Hindu Marriage Act, 1955 provides that, “When either the husband or the wife
has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply, by petition to the district court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no legal ground why
the application should not be granted, may decree restitution of conjugal rights accordingly.
[Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal
from the society, the burden of proving reasonable excuse shall be on the person who has
withdrawn from the society”
This section provides that when either husband or wife withdraws himself from the society of
other, then the court may direct the party to come back and give conjugal company to the aggrieved
party. If the party complies with the decree the marriage may be saved and if don’t comply with
the order, then after one year, the aggrieved party can approach the court for divorce.
Case- Saroj Rani vs Sudarshan Kumar Chaddha7- In this case the apex court that held that
section 9 of the Hindu Marriage Act is constitutionally valid and is not violative of Article 21.
Essential ingredients of Section 9 are:
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1. Petition should be presented by husband or wife- It provides that the petition for
restitution for conjugal rights should be presented by either husband or wife, so it is a
gender neutral provision. It also indicates that no one other than the parties may apply for
this right. It also indicates that the marriage between the parties should be valid. In the case
of invalid marriage parties may not have right for restitution of their conjugal rights.
Case- Sharmila vs Chhote Lal8- In this case it was held that for giving the decree of restitution
of conjugal rights, there should be valid marriage. The burden of proving marriage is on the party
who brings the suit.
2. Withdrawal without reasonable excuse- The second essential under section 9 of the
Hindu Marriage Act is withdrawal without any reasonable excuse. Withdrawal literally
means retreat, repudiation, abandonment, departure or leaving 9. Withdrawal must be from
the society of spouse and not merely from the house of spouse. Where parties are living
together and other spouse refuses to cohabit it also comes under withdrawal of society. It
is essential to prove that the withdrawal must be with the reasonable excuse. If the
withdrawal is with a reasonable excuse then the court would not grant the decree of
restitution of conjugal rights.
The term reasonable excuse has not been defined but is
explained by court in different cases. This term varies from case to case and depends upon
the case to case. This reasonable excuse include any such excuse which the court finds
reasonable and does not come within the ambit of any excuses fixed by any court or
legislature.
Case- Anna saheb vs Tarabai10- In this case it was held that a petition under section 9 cannot be
dismissed merely because the wife does not like her husband or does not want to live with him,
because he is too poor or is otherwise not fit to be a proper life companion for her. Once a marriage
has been solemnised the husband is entitled to the society of his wife and he cannot be denied such
society merely because she does not like him, and for reasons of her own does not feel happy with
him.
JUDICIAL SEPARATION
Judicial separation refers to the situation where parties to the marriage does not want proper
dissolution but merely wishes to live away from which other, In such a situation they may apply
to court for judicial separation. Section 10 of the Hindu Marriage Act deals with the Judicial
separation and provide that:
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1993 (2) DMC 517 (MP)
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Family law I by Dr. Poonam Pradhan Saxena
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Section 10[(1) Either party to a marriage, whether solemnised before or after the commencement
of this Act, may present a petition praying for a decree for judicial separation on any of the grounds
specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been
presented.]
Section 10(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may, on the application
by petition of either party and on being satisfied of the truth of the statements made in such petition,
rescind the decree if it considers it just and reasonable to do so.
Parties to Marriage- If the parties to marriage wants to give their marriage a new lease of life,
then they can do so by seeking the permission of court, but in such a case both the parties should
be agreed to do so.
Expiry of One year- If after the expiry of one year of living away, the parties are not able to solve
their differences then in such a condition, any of them may approach the court praying for divorce.
Case- Prashant Singh vs Tanushree 11- In this case it was held that the judicial separation can
only be done on the grounds mentioned under section 13 for divorce. The judicial separation with
mutual consent is not valid.
Case- Darshan Prasad vs Civil Judge, Gorakhpur- In this case it was held that a wife living
under judicial separation cannot be termed as a judicially separated wife.
ALTERNATE RELIEF UNDER SECTION 13A
Section 13A provides that “In any proceeding under this Act, on a petition for dissolution of
marriage by a decree of divorce, except in so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, 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.”
This section of the Hindu Marriage Act provides for the alternate relief of judicial separation. This
section simply means that if a party to marriage bring petition of divorce, the court may if it
consider just and analyzing the case , may pass the decree of judicial separation against the parties.
Exception- The decree of judicial separation is not available in grounds mentioned under clause
(ii), (iv) and (vii) of Sub Section (1) of Section 13.
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I (2010) DMC 766
Shilpi Jaiswal vs Alok Jaiswal12- In this case the court upon the petition filed by husband praying
for a decree of divorce instead granted a decree of judicial separation.
PYQ
Q. Name the various types of matrimonial remedies(2016) 1 marks
Q. What will be the nature of marriage if done in violation of section 5(ii) of Hindu Marriage
act(2017) 1 marks
Q. Explain the validity of ‘Sgotra’ marriage in Hindus(2017, 2022) 1 marks
Q. What do you understand by nullity of marriage in Hindu law(2018) 1 marks
Q. What do you understand by the term restitution of conjugal rights in hindus? Whether the
concept of restitution of conjugal rights in hindu law is violation of fundamental rights of
individual? Explain(2017, 2022) 4 marks
Q. What do you understand by matrimonial remedies? Name different kind of matrimonial
remedies available under Hindu law and explain the special ground of divorce available for wife
under Hindu Marriage act, 1955(2018) 8 marks
Q. What are different matrimonial relieves? Explain the different bars on relieves(2022) 8 marks
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AIR 2010 (NOC) 805 (Chh.)