A.
Matrimonial Remedies under Hindu Law
(The Hindu Marriage Act, 1955)
Think of "Matrimonial Remedies" as the legal solutions available when a marriage runs
into trouble. The law tries to either fix the marriage or, if it’s broken beyond repair, end it
legally.
(i) Restitution of Conjugal Rights (Section 9)
• Simple Meaning: "Come back home."
• The Concept: Marriage gives both husband and wife the right to live together and
comfort each other (these are "conjugal rights"). If one partner leaves the other
without a valid reason, the court can order them to return.
• How it works:
1. One spouse (e.g., the wife) leaves the house without a reasonable excuse.
2. The other spouse (e.g., the husband) files a petition under Section 9.
3. If the court agrees, it passes a decree saying, "You must go back to your
spouse."
• Can the court force them? No. The court cannot physically force two people to
live together or have a relationship.
o Why file it then? If the decree is passed and they still don't live together for
one year, it becomes a valid ground for Divorce.
• Is it Constitutional?
o Many argued it violates the Right to Privacy (forcing someone to live with a
person they don't want to).
o Current Law: In Saroj Rani v. Sudarshan Kumar, the Supreme Court said it
is valid because its aim is to save the marriage, not punish anyone.
(ii) Judicial Separation (Section 10)
• Simple Meaning: "Legal Time-Out."
• The Concept: The couple is still married, but the court gives them legal
permission to live separately. They do not have to perform marital duties (like
living together or sexual intercourse).
• Why use this?
o It gives the couple time to cool o2 and think.
o It is for people who cannot live together right now but do not want the
stigma of a "Divorce" yet.
• Grounds: You can ask for this on the same grounds as divorce (Adultery, Cruelty,
Desertion, etc.).
(iii) Divorce: Theories and Grounds (Section 13)
Divorce ends the marriage completely.
1. Theories of Divorce (The "Why"):
• Fault Theory: "You did something wrong." (e.g., You cheated, so I want a
divorce).
• Consent Theory: "We both agree." (e.g., We are not happy, let's separate
amicably).
• Breakdown Theory: "The marriage is dead." (e.g., We have lived apart for years;
there is no love left, even if no one did anything "evil").
2. Grounds for Divorce (Section 13(1)):
These are the reasons either husband or wife can use to file for divorce:
• Adultery: Your spouse had voluntary sex with someone else.
• Cruelty: Your spouse treats you so badly (physically or mentally) that it is
harmful to live with them.
• Desertion: Your spouse left you for at least 2 continuous years without any
reason and without your consent.
• Conversion: Your spouse changed their religion (e.g., became Muslim or
Christian).
• Unsound Mind: Your spouse has a mental disorder that makes living together
impossible.
• Renunciation: Your spouse has become a Sanyasi (renounced the world).
• Presumption of Death: Your spouse has been missing for 7 years or more.
3. Additional Grounds for Wife Only (Section 13(2)):
• Bigamy: If the husband already had another wife before this marriage (applies to
old marriages before 1955).
• Rape, Sodomy, Bestiality: If the husband commits these sexual crimes.
• Option of Puberty: If she was married o2 as a child (under 15), she can reject
the marriage before turning 18.
(iv) Distinction: Judicial Separation vs. Divorce
Point of
Judicial Separation (Sec 10) Divorce (Sec 13)
Di8erence
Status of Marriage continues. You are
Marriage ends. You are single.
Marriage still husband/wife.
You cannot marry someone
Remarriage You can marry freely.
else.
Cohabitation You don't have to live together. You don't have to live together.
Possibility of Can be cancelled if you Cannot be cancelled (unless you
Return reconcile. remarry each other).
E8ect Temporary suspension of rights. Permanent dissolution of ties.
(v) Divorce by Mutual Consent (Section 13B)
• Simple Meaning: "We both want out."
• Conditions:
1. Living separately for 1 year or more.
2. Both agree the marriage cannot work.
• The Process (The "Cooling O8" Period):
o Step 1: File First Motion (Joint Application).
o Step 2: Wait for 6 to 18 months. This is given so you can rethink your
decision.
o Step 3: File Second Motion. If you still want a divorce, the court grants it.
• Can the 6-month wait be skipped?
o Yes. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court said if
the marriage has been dead for a long time, the court can waive this
waiting period to save time.
(vi) Irretrievable Breakdown of Marriage (IBM)
• Simple Meaning: The marriage is emotionally dead, even if no one cheated or
was cruel.
• The Problem: The Hindu Marriage Act does not list this as a ground for divorce
yet.
• The Solution (Supreme Court):
o In the landmark case Shilpa Sailesh v. Varun Sreenivasan (2023), the
Supreme Court ruled that it can use its special powers (Article 142 of
the Constitution) to grant divorce on this ground to do "complete justice,"
even if one spouse opposes it.
(vii) Ancillary Reliefs (Extra Help)
• Alimony (Maintenance): Money paid by one spouse to the other for support. It
can be during the court case (Pendente Lite) or permanent (after the case ends).
• Custody: Who keeps the children? The court decides based on the "Welfare of
the Child." It’s not about the parent's right, but the child's happiness.
(viii) Bars to Remedies (Why a Court Might Say No)
• Taking Advantage of Own Wrong: You can't lock your spouse out of the house
and then file for divorce claiming "Desertion." You caused it!
• Condonation: If your spouse cheated (Adultery), but you forgave them and lived
normally afterward, you cannot file for divorce on that same act of cheating later.
You have "condoned" (forgiven) it.
B. Matrimonial Remedies under Muslim Law
Muslim law views marriage as a Contract, not a sacrament. The methods of ending it
are di2erent.
(i) Di8erent Modes of Talaq
1. By Husband:
• Talaq-ul-Sunnat (The "Proper" Way):
o Ahsan: Husband says "Talaq" once. He waits for 3 months (Iddat). If they
don't reconcile, divorce happens. This is the best form because it allows
taking back the words.
o Hasan: Husband says "Talaq" three times over three months (one each
month).
• Talaq-ul-Biddat (Triple Talaq):
o Husband says "Talaq, Talaq, Talaq" all at once.
o Status: This is now Illegal and Void in India (Shayara Bano Case).
2. By Wife:
• Talaq-i-Tafweez (Delegated Divorce):
o The husband gives the power of divorce to the wife in the marriage
contract (Nikahnama). She can use this power to divorce him if he breaks
certain conditions (e.g., marries another woman).
3. By Mutual Agreement:
• Khula: The wife initiates it. She usually o2ers to return her Mahr (dower/money)
to the husband to "buy" her freedom.
• Mubarat: Both want to separate. The o2er comes from both sides.
(ii) & (iii) The Dissolution of Muslim Marriages Act, 1939
Before this Act, Muslim women found it very hard to get a divorce in court. This Act gave
them specific legal grounds to approach the court (Judicial Divorce).
Key Grounds (Section 2):
1. Missing Husband: Husband is missing for 4 years.
2. No Maintenance: Husband failed to provide money/food for 2 years.
3. Imprisonment: Husband is in jail for 7 years or more.
4. No Marital Obligations: Husband ignored her for 3 years.
5. Impotence: Husband was and is impotent.
6. Insanity/Disease: Husband is insane for 2 years or has leprosy/V.D.
7. Cruelty: If he beats her, forces her into immoral life, or treats her unequally
compared to other wives.
(iv) The Muslim Women (Protection of Rights on Marriage) Act, 2019
• Why was it passed? To stop the practice of "Instant Triple Talaq."
• What does it do?
1. Void: Declares instant Triple Talaq legally empty (it doesn't end the
marriage).
2. Crime: The husband can be jailed for up to 3 years.
3. Protection: The wife can ask for a subsistence allowance (money) for
herself and her minor children.