FACTS OF KAILASHWATI vs AYODHIA PRAKASH CASE:

 The appellant (Smt. Kailashwati) and the respondent (Ayodhia

Prakash) tied a nuptial knot on 29th June 1954 and inhabited their
matrimonial home for 8-9 months thereafter the appellant in course of
her employment was transferred to another location due to which she
could not live at her matrimonial home.
 This leads the respondent to want the appellant to leave her job and
live with him at their matrimonial residence. This dispute gave rise to
this appeal.

LEGAL ISSUES:

1. Whether the relief of restitution of conjugal rights be declined to the

husband for reasons not mentioned in section 9 of the Hindu Marriage
Act, 1955?
2. Whether refusal to live with husband because of gainful employment in
another location be a valid justification?

CONTENTIONS:

1. It was contented by the respondent that with his salary and other
sources of earnings, he can maintain himself and his wife prominently
irrespective of evidence he is denied his wife’s society and satisfaction
of conjugal rights.
2. In contrast, it was asserted by the appellant that, the respondent
already was aware of the employment of the appellant and with open
eyes accepted her as his wife therefore she is under no commitment to
live with him and further, she stated she is prone to allow access to her
husband as she could keep in mind her employment.

RATIO DECIDENDI:

The bench discussed the matter at length, also referred to various foreign
judgments and by analyzing them, the bench observed:

1. The matrimonial home is a key element in marriage and all rights and
duties of spouses are best comprehended when they live together.
2. After examining various authorities, it was observed that a husband is
entitled to determine the locus of the matrimonial home but subjected to
two conditions:
 The husband must establish a matrimonial home and should
validate that he can maintain his wife in a dignified manner
provide her comfort and good standard of living in consonance
with his means. 
  He is claiming society as his wife in the matrimonial home in
good faith and not just to spite her or with any mala fide
intentions.
3. After analysing the valid provision of Hindu Law, it was observed that
the marital duties of a man include maintaining his wife and children,
and a wife must submit herself obediently to her husband under his roof
and security.
4. That it does not entitle her to a separate residence unless she satisfied
the court that there has been any kind of neglect, misconduct, refusal to
maintain by husband.

DECISION: The court furnished that employment is no reasonable ground for

withdrawal and such unreasonable withdrawal cannot be an excuse to live
individually, away from the matrimonial home and that the appellant should
choose between her job and husband. Further stating such, the bench
dismissed the appeal.

FACTS OF SWARAJ GARG vs KM GARG CASE

 The petitioner, i.e. Swaraj Garg wife of KM Garg, was living in her
village, Sunam from 1956 and was a schoolteacher.
 The petitioner married to Respondent in the year 1964 and she became
the headteacher in 1969 at government high school.
 The husband was having a job of earning Rs. 500 p.m. Only in Delhi
and lives over there.
 Petitioner often comes to live with her husband in Delhi and after some
time move back to his village and living there for future.

LEGAL ISSUES

Which will be the matrimonial home of the parties after the marriage if they
are working at different places for their earnings?

CONTENTION OF THE PARTIES

Petitioner: The petitioner argued the respondent is not maintaining his wife

and also mentions the cruel behavior of the respondent.

Respondent: The respondent contended the petitioner moved to her village

giving no reason, thus he wanted the decree of Restitution of Conjugal Rights.

RATIO DECIDENDI
The court held that it is the decision of the husband to determine the
matrimonial home based on the benefits of both parties.

Honorable Justice V Deshpande gives a statement ‘it is not a proposition of

law, it’s simply a proposition of good ordinary sense because the husband is
usually wage earner and has to live near to the work’.

It is also agreed that it’s the responsibility of the husband to maintain his wife
rather than the responsibility of the wife to maintain her husband and with
regarding that if the wife is in a well-settled position thus, she would not get
maintenance from her husband.

The court also observed that any hard and fast rule about the matrimonial
home does not decide it with no codified part of the law.

The court also observed that they involved the husband in cruelty and took
money from her parents as a dowry.

The Court also took the custom views which make up the unmodified part of
Hindu law. Regarding customs, the court’s opinions that they should be
ancient and enforceable, but not in this case. So in Swaraj Garg vs KM Garg
case, no custom was allowed.

Decision

After hearing both parties, the court comes to this that in absence of any
custom or codified law provisions in Hindu Law and considering cruelty by
husband against his wife and better financial position of wife, the decree of
restitution of conjugal rights cannot be granted.

Hence, the judgment was given in the petitioner’s favor, and the conduct of
the husband was the frightening one against his wife to join him. Therefore,
the husband was failed to prove the ground of restitution of conjugal rights.
Saroj rani v Sudarshan kumar
FACTS OF THE CASE

 The appellant, i.e. the wife, was treated badly by the respondent, i.e.
the husband after the two years of marriage and after the birth of
second daughter.
 Thereafter, the appellant sued for the restitution of conjugal rights under
section 9 of the Hindu Marriage Act, 1955 before the Sub-judge and the
decree was passed with the consent of both parties.
 After the passing of decree, the appellant claimed that she briefly
cohabited with respondent, i.e. the husband.
  After the lapse of one year, the respondent sued for divorce under
section 13 of the Hindu Marriage Act, 1955, before the District Judge on
the grounds that there had been no cohabitation taken place since the
decree under section 9 was passed.
 The District Judge dismissed the Divorce petition by giving reasons that
the decree under section 9 was a consent decree.
 Another appeal filed by the respondent to the High Court and the same,
which was referred to the Chief Justice.
 The appellant also preferred an appeal before the Supreme Court of
India.

LEGAL ISSUES

 Whether the decree passed under section 9 of HMA, 1955 violates

the Article 13, 14 and 21 of the Constitution of India, 1950?
 Whether the Court should grant the petition for divorce in favor of
respondent against the consent decree passed under section 9 of
HMA, 1955?

CONTENTIONS

 The appellant argued the respondent was not willing to live with
appellant and wanted to have divorce with her. The appellant said that
respondent wants to get the decree of restitution of conjugal rights and
also dishonor the same by having divorce in this ground.
 Respondent should not have been allowed to take advantage of his
‘wrong’ under section 23 of the HMA, 1955 and therefore not to grant
divorce, the appellant added on.

RATIO DECIDENDI

The Court observed the remedy passed under section 9 of HMA, 1955 does
not violate Articles 13,14, and 21 of the Constitution of India by citing the
case Smt. Harvinder Kaur vs Harmendar Singh by stating that remedy
passed under section 9 of HMA, 1955 is to bring cohabitation between them
that parties may live peacefully and happily with proper understanding and
does not limit to a sexual relationship only but also draw mutual
understandings towards each other so they can live happily at their
matrimonial home.
The word ‘wrong’ mentioned in section 23(1) of HMA, 1955 does not entitle
the husband to get a decree of divorce. The apex court cited that statements
about the refused cohabitation by the husband after the passing of decree are
no factual allegations and therefore the husband is in the possession of view
to get the decree of divorce by not reversing the decision of a single bench.
DECISION

The apex court dismissed the appeal of the appellant wife by considering the
above facts and upheld the judgment which was passed by the High Court of
Punjab and Haryana of a decree of divorce in favor of the respondent, i.e. the
husband.

The apex court also considered their relationship of husband and wife by
stating that which was noncooperative and therefore appeals of the wife
easily dismissed and stand to affirm the decision. In addition, the apex court
directed the respondent, i.e. the husband, to pay the maintenance of Rs. 200
per month to the wife and Rs. 300 per month to her daughter until she
remarries and maintains the one living daughter until his marriage.

FACTS OF DASTANE VS DASTANE CASE

 The parents of respondent i.e. Sucheta, made the proposal for

marriage to the appellant in April, 1956.
 The respondent was B.Sc. graduated from Delhi University and has
obtained Master’s Degree in Social Work.
 The appellant, i.e. Dr. Narayan Ganesh Dastane, had master’s in M.Sc.
in Agriculture field. Before finalizing the marriage proposal, the
respondent father send the letter to appellant to inform him about the
incident that respondent was suffered from a ‘severe attack of
sunstroke’ which affects her mental condition for some time and now
she was recovered from that attack.
 Further, the father of respondent stated she was cured at Yeravada
Mental Hospital.
 No further enquiries raised by the appellant after confirming the incident
with Doctor.
 They performed the marriage on 13th may, 1956. The two daughters
have been born from this wedlock. In the year 1961, the appellant
asked for the Police Protection by stating that respondent is a threat to
his life.
 The respondent asked for the maintenance for herself and for her two
daughters and addressed a letter to the Ministry of Food and
Agriculture stating the cruel behavior of appellant.
 The appellant moved a petition to the court for revoking the marriage
under section 12(1)(c) of Hindu Marriage Act, 1955 because his
consent has been obtained by fraud.
 Further, he requested the court for granting a divorce under section
13(1)(iii) of Hindu Marriage Act, 1955. On the other hand, he also
claimed for judicial separation under section 10 (1)(b) of HMA, 1955.
LEGAL ISSUES

 Whether the facts established beyond reasonable doubt in the

matrimonial disputes?
 Whether the act of sexual intercourse amounts to treat as cruelty?
 Whether the burden of proof of cruelty lies upon appellant or on
respondent?
 CONTENTIONS OF THE PARTIES
 Appellant–The appellant argued that the respondent’s family
fraudulently described the condition as she got the treatment of
schizophrenia. She was used to behaving badly with her husband and
also with their daughters.
 Respondent- The respondent argued the appellant forced her to
behave in this manner by expecting rigid standards of behavior from
her. Further, she stated the appellant had sexual intercourse by
deserting her and which leads to treating her with cruelty.
 RATIO DECIDENDI OF DASTANE V DASTANE
 The Court contended that the appellant’s intentions regarding his wife
of unsound mind were fabricated by him. The act of the appellant
engaging in sexual intercourse with the respondent leads
to condonation of cruelty in the eyes of law. Respondent was willing
to return to the matrimonial home by realizing her mistakes.
 DECISION OF DASTANE VS DASTANE CASE
 The respondent was held liable for cruelty by the Trial Court and later
on; the husband was ordered to pay maintenance of Rs. 400 per month
as interim maintenance and also to pay arrears. The court granted
custody of children to the wife until the age of the majority of children
with their interests.
 Decision was appealed in hc but the same was dismissed

FACTS OF SAMAR GHOSH VS JAYA GHOSH CASE

 The appellant, i.e. Samar Ghosh, was married to the respondent, i.e.
Jaya Ghosh 13th December, 1984 at Calcutta under the Special
Marriage Act, 1954.
 Both the parties are ‘IAS’ officials. The respondent was divorced and
had a female child from their first marriage and custody of that child
was given by the court to her.
 Just after the marriage, the respondent himself decided not to give a
birth to a child for two years and also not allowing the appellant to talk
with her child. After the one year of marriage, the appellant suffered
from prolonged illness.
  During this course of time respondent, without having concern towards
the health appellant, left him alone and went to meet her brother who
was working in Bareilly

 Appellant was alone in a residential place and there was no one there
who can look after for him in Calcutta. Appellant got transferred after
two years after Calcutta, but because of poor health, he was again
transferred back to Calcutta and they again start living together with
building healthy relations between them.
 There was a servant cum cook was also lived up with them, but later on
the cook was moved from there and the appellant needs to take meals
for her from outside because the respondent was only used to prepare
his own meal.
 Once there was a time when one incidence took place where the
appellant felt insulted when respondent shouts him in front of
appellant’s servant. From that time onwards, they started living
separately.

ISSUES OF THE CASE

 Whether the respondent was guilty of cruelty?

 Whether the appellant entitled to get divorce decree?
 CONTENTION OF THE PARTIES
 APPELLANT- The appellant argued respondent refused to have
cohabitation and the respondent alone decided to have a child.
 Further, the respondent was having no care feeling toward the
petitioner when he was prolonged illness, and the act of humiliating the
appellant involves the act of mental cruelty.
 That the petitioner and respondent were living separately for over
sixteen years and thereafter, no interactions have been made between
them.
 REPSONDENT- The respondent contended that she never said these
things about not having a child for two years of marriage.
 The appellant started living with the respondent, which amounts to the
condonation of cruelty. She also added that not cooking the food for
petitioner doesn’t amount to mental cruelty.
 That no such incidence was ever happened in which she insulted her
husband in front of a servant.

RATIO DECIDENDI OF SAMAR GHOSH V JAYA GHOSH CASE

 The Apex court explains the concept of cruelty deeply through various
precedents. Mental Cruelty is a state of mind.
 The Supreme court considered that there was ‘No uniform standard can
ever lead to determine mental cruelty.’ The Court further concluded
 that “There can be no straightjacket formula or fixed parameters
for determining mental cruelty in matrimonial matter. Mere trivial
irritations, quarrel, normal wear and tear of the married life
happening in day-to-day life are not adequate for grant of
divorce.”

 The Apex Court concluded that “the approach from the High Court in
deciding this matter was far from satisfactory.”
 However, the Court considered that individual decision of refusal to
cohabit for, without there being any physical incapacity or valid reasons,
amounts to mental cruelty.
 The court also opined that having individually decision of wife or
husband for not having child after the marriage may also amount to
cruelty.

DECISION IN SAMAR GHOSH VS JAYA GHOSH

The District Judge granted the decree order of divorce on 19th December,

1996 in favor of petitioner by concluded the facts that refusal to cohabit
with the plaintiff and her individual decision of not having children after
marriage involves the mental cruelty to the plaintiff and the marriage
between the parties were dissolved.

FACTS OF DHARMENDRA KUMAR vs USHA KUMAR CASE:

 The appellant referred in this case, Mr. Dharmendra Kumar has filed

an appeal against the decree of divorce being granted to the
Respondent, Mrs. Usha Kumar under section 13(1A) (ii) of the
Hindu Marriage Act, 1955 in the Supreme Court of India.
 On 27th August 1973, the respondent’s wife had applied to get a decree
of restitution of conjugal rights under Section 9 of the Hindu
Marriage Act, 1955,  before the Additional Senior Sub-Judge, Delhi.
 According to Section 9 of the Hindu Marriage Act, 1955 “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.”
 Thereafter, a petition for Decree of Divorce under sec 13(1A) (ii) of
the Hindu Marriage Act,1955 was being filed by the Respondent on
28th October 1975 on the ground that no restitution of conjugal rights
 had taken place between the parties after the passing of the decree for
restitution of conjugal rights.
 The fact that there had been no restitution of conjugal rights for over 2
years which was admitted by the appellant and he also alleged that he
attempted to comply with the decree by writing registered letters
intending to invite the respondent to cohabitate with him to which the
wife did not respond preventing the restitution of conjugal rights
and was making a capital out of her own wrong.
 Hence, an appeal was filed by the Appellant against the decree of
divorce being granted to the Respondent.

LEGAL ISSUES:

Whether mere non-compliance with a decree for restitution of conjugal

rights constitutes “wrong” within the meaning of section 23(1)(a)?

RATIO DECIDENDI:

It has been clearly stated by law that in order to constitute “wrong” within
the meaning of section 23(1)(a), the conduct alleged has to be
something more than a mere disinclination to agree to an offer of
reunion, it must be misconduct serious enough to justify denial of the
relief to which the husband or the wife is otherwise entitled.

DHARMENDRA KUMAR vs USHA KUMAR JUDGMENT:

In view of the above facts, there had been no circumstances from which it
could be said that the Respondent’s wife was intending to take advantage of
her own wrong. In case there had been evidence proving the above
allegation, it would still not amount to misconduct grave enough to dis-entitle
the relief being granted to the Respondent wife.

The appeal was therefore dismissed by the Honorable J. Gupta on the

ground that the Respondent had a complete legal right to obtain a decree of
divorce and to defy the decree of conjugal rights if she is not willing to
cohabitate with the Appellant and there is no further scope of reconciliation.

BRIEF FACTS OF T SRINIVASAN vs. VARALAKSHMI CASE:

 The appellant-husband and the Respondent-wife were married on

31st Jan 1975 and lived together in the respondent’s house for 2 or 3
days.
 Soon after their wedlock, the appellant-husband started teasing the
respondent-wife alleging insufficiency of gifts by her parents, and also
 the presence of a small congenital lump on the respondent’s shoulder
was criticized, which was already made known to him even before
marriage.
 Because of the non-fulfillment of the appellant’s demand to bring
larger presents and jewels, the respondent-wife was sent back to
her parent’s house on 13th Feb 1975.
 To a notice issued by the appellant on 28th July 1975,
the respondent immediately sent a suitable
reply denying the allegations made against her that she has
withdrawn from the society of her husband without probable cause.
 Countering to the petition for restitution of conjugal
rights being filed by the appellant-husband, the respondent-wife
submitted she was willing and eager to live with him and never thought
of living alone, and was ready to join him by narrating the
circumstances under which she has been deserted by her husband.
 Thereupon, a decree for restitution of conjugal rights was granted
by the court on 21st Feb 1977.
 On 08th March 1977, the respondent-wife sent a notice through her
counsel to the appellant that she was willing, to join with the appellant
and lead a conjugal life with the appellant and requested him to send
some relation to take her back to his house, to which the appellant did
not send any reply.
 Seeing all her attempts being made nullified, the respondent-wife filed a
complaint at the Police Station and sued for maintenance under Section
18 of the Hindu Adoptions and Maintenance Act.
 The suit was resisted by the appellant and in the written statement
he admitted the marriage and submitted that the respondent and her
parents played a deception on him by not disclosing a large lump on the
back of the respondent which was discovered by him only on the
nuptial night.
 The appellant denied the allegations made against him by the
respondent regarding the inadequacy of gifts.
 Hence, a petition for divorce was being filed by the appellant-
husband under section 13(1A)(ii) of the Hindu Marriage Act,
1955 on the ground that though he got a decree for restitution of
conjugal rights, the parties have not lived together and no
restitution has taken place between them for over one year after
the decree.
 Further, the respondent-wife resisted the above-said application by
stating that it is only the appellant who deserted her without reasonable
or probable cause, and all attempts made by her to live with him after
the decree for restitution have become futile and he is not entitled to a
decree for divorce.
LEGAL ISSUES:

1. Whether the principle laid down in section 13(1A) of the Hindu

Marriage Act, 1955 successfully applied by the concerned Court?
2. Whether a decree for divorce should automatically follow on the
expiry of the period of one year from the date of decree for
restitution of conjugal rights?
3. Whether the Court below justified in refusing a decree for divorce
for the appellant based on Section 23(1) of the Hindu Marriage Act,
1955?
4. Whether the plaintiff is entitled to maintenance even after a right to
seek divorce under Hindu Marriage Act has accrued to the
appellant?
5. Whether the respondent entitled to separate maintenance?

RATIO:

 The learned counsel for the appellant submitted that though Section
13(1A)(ii) of the Hindu Marriage Act, 1955 is controlled by Section23(1)
(a), mere refusal by the appellant to take back the respondent will not
amount to ‘wrong’ so as to dis-entitle him to get a decree for dissolution
of marriage.
 Thus, the concerned court did not accept the contention that the
mere refusal of the appellant to join the respondent cannot be the
ground for refusing to grant a decree of divorce since one year
has elapsed from the date of the decree and such refusal would not
amount to wrong as contemplated in section 23(1)(a). [Case
Reference: Dharmendra Kumar v. Usha Kumar; Bimla Devi v. Sing
Raj]
 “In order to be a ‘wrong’ within the meaning of Section 23(1)(a) of
the Hindu Marriage Act, the conduct alleged has to be something
more than a mere disinclination to agree to an offer of reunion, it
must be misconduct serious enough to justify denial of the relief to
which the husband or the wife is otherwise entitled”.
 It was also worthwhile to note that the petition for dissolution of
marriage under section 13(1)(A) of the Hindu Marriage Act, 1955 was
filed, during the pendency of the maintenance proceedings instituted by
the respondent-wife and also long after the institution of the said
proceedings, wherein it was alleged that the appellant willfully
neglected to maintain her and consequently deserted her without
probable and reasonable cause and in spite of repeated requests and
notices.
 The above conduct of the appellant is also relevant in determining
the question of “wrong” as contemplated under section 23(1)(a) of
the Act. Thereupon, it is not mere non-compliance of decree but an
 act of positive wrong by the appellant, and in view of section 23(1)
(a), he is not entitled to the relief provided under section 13(1-A).

JUDGMENT:

In view of the concurrent findings of both the courts, it was evident that the
petition for restitution of conjugal rights was being filed by the appellant
just to obtain a further decree of divorce and not to act as per the
decree, and the appellant deserted the respondent with no reasonable
or probable cause. Hence, the respondent-wife was entitled to claim
maintenance.

As a result, both the appeals failed and were dismissed by the appellant
against his wife.

Hirachand Srinivas Managaonkar vs. Sunanda case dealt

with interpretation of conjugal rights enshrined in Hindu
Marriage Act.
CITATION: CIVIL APPEAL No. 1473 OF 1999

BENCH: D.P.MOHAPATRA, DORAISWAMY RAJU

BRIEF FACTS OF THE CASE:

 The appellant is the husband of the respondent. On 6 January 1981, a

petition seeking judicial separation under Section 10 of the Hindu
Marriage Act, 1955 was being by the respondent on the ground of
adultery on the part of the appellant pursuant to which the appellant
was directed to pay maintenance.
 Instead of complying with the said order, the appellant filed a petition for
dissolution of marriage by a decree of divorce under Section 13-A on
the ground that there has been no resumption of cohabitation between
the parties to the marriage for a period of more than one year after
passing for the decree for judicial separation.
 It was contended by the respondent that the appellant, having failed to
pay the maintenance as directed by the court, filed a petition for divorce
in order to take advantage of his own wrong with the purpose of getting
the relief.
 Taking this into consideration, the High Court rejected the appellant’s
petition for divorce and the said appeal was made to the Supreme
Court by way of Special Leave.
LEGAL ISSUES:

1. Whether the husband who has filed a petition seeking dissolution

of marriage by a decree of divorce under section 13-A of the Hindu
Marriage Act, 1955 can be declined relief on the ground that he
has failed to pay maintenance to his wife and daughter despite the
order of the Court?
2. Whether the appellant by refusing to pay maintenance to the
respondent has committed a ‘wrong’ within the meaning of
Section 23?
3. Whether the appellant has filed the petition for divorce with the
intent of taking advantage of his own wrong?

RATIO:

 In view of the facts and the circumstances of this case, the prayer of the
appellant for a decree of divorce was rejected by the High Court on the
ground that the move was not a bona fide one, that he continues to live
in adultery even after the decree for judicial separation was passed and
that he has failed to provide maintenance to his wife and daughter.
 According to Section 13(1) of the Act, the dissolution of a marriage
between the parties may take place by a decree of divorce on a petition
filed by either of the parties on the following grounds:
 That there has been no resumption of cohabitation as between the
parties to the marriage for a period of over one year after the passing of
a decree for judicial separation
 That the party against whom the petition is filed had failed to comply
with a decree for restitution of conjugal rights for a period of two years
or upwards after the passing of a decree of restitution against that party.
 The contention that the right conferred by sub-section (1A) of Section
13 is absolute and unqualified and is not subject to provisions of
Section 23 is fallacious. Sub-section (1A) of Section 13 was introduced
by an amendment that conferred a right on either party to the marriage
so that the petition for divorce can be filed not only by the party which
had obtained a decree for judicial separation or restitution of conjugal
rights but also for the party against whom such decree has been
passed. Section 23 casts a duty on the court to decree the relief sought
only if the conditions specified in the sub-section are satisfied, and not
otherwise. Therefore, the contention raised by the appellant whether
the provisions of section 23(1) are not relevant in deciding a petition
filed under sub-section (1A) of Section 13 of the Act, was not accepted.
 In order to determine whether the appellant has committed a wrong
within the meaning of section 23 of the Act, the concept given in Mulla’s
Hindu Law was to be noted which stated that after a decree for judicial
 separation has been passed; both the parties are obligated to perform
their part for cohabitation.
 As in the present case, the appellant has failed to perform his duty as a
husband by refusing to pay maintenance, amounting to committing
‘wrong’ within the meaning of Section 23 of the Act. Section 13(1A) only
enables either party to a marriage to file an application for dissolution of
the marriage.
 The Section does not provide that once an application is made, the
court has no alternative but to grant a decree of divorce. Such an
interpretation runs counter to the provisions of section 23(1)(a) or (b) of
the Act.
 “In order to be a ‘wrong’ within the meaning of Section 23(1)(a), the
conduct alleged has to be something more than a mere disinclination to
agree to an offer of reunion, it must be misconduct serious enough to
justify denial of the relief to which the husband or the wife is otherwise
entitled”.
 In view of the facts and the circumstances, it can be reasonably said
that the appellant in the case not only commit a matrimonial wrong by
refusing to provide maintenance and further estrange the relation
creating acrimony rendering any reapproachment impossible but also
tried to take advantage of his own wrong by seeking the relief for
divorce.

JUDGEMENT:

Considering the above-mentioned discussions, Supreme Court held the

decision of the High Court in declining the relief of a decree of divorce to the
appellant correct. The learned Judge held rightly that Illegality and immorality
cannot be countenanced as aids for a person to secure relief in matrimonial
matters. The appellant’s prayer was not accepted on the ground that
provisions of Section 13(1A) do not abrogate the provisions specified in
Section 23 of the Hindu Marriage Act.

FACTS OF SURESHTA DEVI V. OM PRAKASH CASE:

 The marriage between the appellant and the respondent took place on
21 November 1968. On 8 January 1985, a petition under Section 13-B
 for divorce by mutual consent was being filed in the District Court and
the statement of the parties were being recorded on 9 January 1985.
 Further, an application was filed by the appellant on 15 January 1985
stating that the statement dated 9 January was given by her under
pressure and threat of the Respondent. It was also alleged that before
filing the petition for divorce; the appellant was not even allowed to see
or meet her relations for consultation nor were they permitted to
accompany her to the Court. Hence, the appellant prayed for the
dismissal of the petition.
 The petition was initially dismissed by the District Court but on appeal,
the High Court reversed the order and granted a decree of divorce by
holding that the consent to a petition for divorce by mutual consent
cannot be unilaterally withdrawn and the jurisdiction of the court cannot
be taken away by such withdrawal; if the consent was otherwise free.
Thereupon, the appeal was being filed by the appellant.

LEGAL ISSUES:

Whether a party to a petition for divorce by mutual consent under

Section 13-B of the Hindu Marriage Act, 1955 can unilaterally withdraw
the consent, or whether the consent once given is irrevocable?

RATIO DECIDENDI:

 In view of the above-concerned question, the Bombay High Court

in Jayashree Ramesh Londhe v. Ramesh Bhikaji
Londhe expressed the view that the crucial time for the consent for
divorce under Section 13-B was the time when the petition was filed.
 If the consent was given voluntarily, it would not be possible for any
party to nullify the petition by withdrawing the consent. A similar view
was adopted by the High Court of Delhi in Smt. Chander Kanta v.
Hans Kumar and Anr. AIR 1989 and the High Court of Madhya
Pradesh in Meena Dutta v. Anirudh Dutta.
 In contrast, in the Kerala High Court in K.L. Mohanan v. Jeejabai, AIR
1988 and the Rajasthan High Court in Santosh Kumari v. Virendra
Kumar, AIR 1986 it was held that the consent given to a petition for
divorce can be withdrawn by any of the spouses at any time before the
decree is being passed by the court.
 Section 13-B of the Hindu Marriage Act is in para material with Section
28 of the Special Marriage Act, 1954. According to Section 13-B(1) of
the Hindu Marriage Act, 1955 a petition for dissolution of marriage can
be filed by both the parties on the ground that the parties have been
living separately for a period of more than one year or more, that the
parties are unable to live together and have mutually agreed that the
marriage has been dissolved.
  The expression ‘living separately’ implies not living like husband and
wife but has no reference to the place of living. The parties may live
under the same roof but must have no desire to perform marital
obligations.
 Under sub-section (2) the parties are required to make a joint motion
not earlier than six months after the date of presentation of the petition
and not later than 18 months after the said date. This motion requires
the court to hear both the parties concerned thereby, enabling them to
proceed with the case in order to satisfy themselves about the
genuineness of the averments in the petition and also to find out
whether the consent was obtained by force, fraud, or undue influence.
 On being satisfied that the consent was not obtained maliciously and
the parties have mutually agreed to dissolve the marriage, the
concerned court may pass a decree of divorce.

JUDGMENT:

The Judgment of the Court was delivered by K.JAGANNATHA SHETTY,

J. in Sureshta Devi vs. Om Prakash case. Special Leave was
granted, concerning the validity of a decree for dissolution of marriage
by mutual consent under section 13-B of the Hindu Marriage Act.

After analyzing Section 13-B of the act, it was apparent that the filing of
the petition with mutual consent does not authorize the court to make a
decree for divorce. The statutory waiting period from 6 to 18 months
enables the parties to have a second thought and another chance to
reconcile.

It is also to be noted that the section does not mandate that if there is a
change of mind, it should be by both the parties which thereby implies that if
any of the parties is willing to withdraw its consent, the court cannot pass a
decree of divorce by mutual consent. Thus, in light of the discussion as
mentioned herein, the Court admitted the appeal and set aside the decree for
dissolution of the marriage.

Amardeep Singh v, Harveen Kaur on 12 September, 2017

Brief Facts:
The Appellant and the Respondent got married on 16th January 1994 at Delhi. They
subsequently had two children in 1995 and 2003 respectively. The parties started living
separately since 2008 which also lead to civil and criminal proceedings between the two. The
dispute was finally settled with a decision to seek divorce by mutual consent on 28 th April
2017. The respondent was granted permanent alimony of Rs.2.75 crores and was thus given
two cheque of Rs.50,00,000/- by the appellant which has been well honored, it was also held
that the appellant will hold custody of the child.
The parties have sought waiver of the period of six months for the second motion as they
have already been living separately for more than last eight years and there is no possibility
of their reunion and the delay will only affect their chances of any resettlement. Therefore,
they moved to the Supreme Court on the ground that only the Supreme Court can relax the
six months period as per previous decisions of the Supreme Court
Issues :
Whether the exercise of power under Article 142 of the Constitution to waive the period
under Section 13B(2) of the Hindu Marriage Act was mandatory or directory?

Judgement:
The court held that the object of 13B(2)is to enable the parties to dissolve a marriage by
consent if the marriage has irretrievably broken down and to enable them to rehabilitate them
as per available options and the cooling off period is necessary to ensure that rash decisions
are not taken.
It was also held that the Court should give due regards to the language, context, the subject
matter and the object of the provision to determine whether a provision is mandatory or
directory.

In this regard it was held by the court that Court where it is satisfied that a case is made out to
waive the statutory period under Section 13B(2), it can do so after considering the following :
1. The statutory period of six months specified in Section 13B(2), in addition to the
statutory period of one year under Section 13B(1) of separation of parties is
already over before the first motion itself;
2. All efforts for mediation/conciliation including efforts in terms of Order
XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts
Act to reunite the parties have failed and there is no likelihood of success in that
direction by any further efforts;
3. The parties have genuinely settled their differences including alimony, custody
of a child or any other pending issues between the parties;
4. The waiting period will only prolong their agony;
5. The waiver Application can be filed one week after the first motion giving
reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of the waiting period for the second motion
will be at the discretion of the Court. The period mentioned in Section 13B(2) is not
mandatory but directory, it will be open to the Court to exercise its discretion in the facts and
circumstances of each case where there is no possibility of parties resuming cohabitation and
there are chances of alternative rehabilitation.
The Court can also use the medium of video conferencing and also permit genuine
representation of the parties through close relations such as parents or siblings where the
parties are unable to appear in person for any just and valid reason as may satisfy the Court,
to advance the interest of justice.

Second page

FACTS OF SURAJMANI STELLA KUJUR CASE:

  The parties involved in this case are admittedly tribals- the appellant
being a Oraon and the respondent is a Santhal.
 The appellant confessed that their marriage falls out of the purview of
Hindu Marriage Act, 1955 in light of Section 2(2) of the Act and are
governed only by their Santhal customs and usage.
 Further, an alleged custom having the force of law which prohibits the
solemnisation of second marriage and its consequences thereof, was
also being referred by the appellant.
 Later, a complaint was being lodged against the respondent for
violating the provisions of Section 494 of IPC, by solemnising a
second marriage during the subsistence of the first marriage. The
Trial court dismissed the complaint and hence this appeal was made to
the concerned court.

LEGAL ISSUES:

1. Who is a ‘Hindu’ for the purpose of the applicability for the Hindu

Marriage Act, 1955?
2. Whether a mere pleading of a custom stressing for
monogamy could be taken into account for the conviction of
appellant?
3. Whether the appellant was able to prove sufficient evidences in
order to prove the crime of bigamy being committed by the
appellant?

RATIO DECIDENDI:

The answer to question (1) is provided in Section 2 of the Hindu Marriage

Act, 1955 which is applicable to:

 Any person who is a Hindu by religion including Virashaiva, a Lingayat

or a follower of the Brahmo, Prarthana or Arya Samaj,
 Any person who is a Buddhist, Jaina or Sikh by religion,
 Any other person domiciled in the territories of India except Muslim,
Christian, Parsi or Jew by religion

The expression ‘custom and usage’ has been defined under Section 3(a)

of the Act as:

“The expression custom and usage and rule which, have been continuously
and uniformly observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family :

Provided that the rule is certain and not unreasonable or opposed to public
policy; and Provided that in the case of a rule applicable only to a family it has
not been discontinued by the family”.
In order that the custom is legal and binding, it must be of immemorial origin
and must be recognized by the court as reasonable. It was held in Mirza Raja
Pushpavati Gajapathiraj v Sri Visweswar Gajapathiraj AIR 1964 SC 118, it
was held that the party relying upon a custom is obliged to establish it by
clear  and unambiguous evidence.
Neither the reference of the alleged custom mandating monogamy was being
made in the complaint nor the appellant could establish the existence of a
custom which made the second marriage void, ineffectual, having no force of
law or incapable of being enforced.

Thus in regard to question (2) and (3), it was emphasized that mere pleading
of a custom stressing for monogamy by itself was not sufficient to constitute
the offence of bigamy.

SURAJMANI STELLA KUJUR JUDGMENT:

In light of the above mentioned facts, the complaint against the respondent
was rightly dismissed by the Trial Magistrate and High Court holding that-

“In the absence of pleadings, evidence and proof of the alleged custom
making the second marriage void, no offence under Section 494 of IPC
can possibly be made out against the respondent.” Thus, no case for
prosecution for the offence of bigamy was made out against the
respondent and accordingly, the appeal was dismissed.

FACTS OF S NAGALINGAM vs SIVAGAMI CASE:

 That the marriage between the appellant and the respondent took place
on 6th September 1970 and three children were born from that wedlock.
  The respondent alleged that she had been a victim of domestic
violence as a result of which she started living with her parents.

 Later a criminal complaint was being lodged before the Metropolitan

Magistrate by the appellant, contending that the appellant had
contracted the second marriage with a woman named, Kasturi and their
marriage was solemnised in accordance with the Hindu rites on
18th June 1984 within the state of Tamil Nadu. In order to support this
contention, detailed evidences were provided regarding the manner in
which the marriage was being performed on 18th of June.

 The order of acquittal was being passed by the Trial Court. Aggrieved
thereby, the respondent filed criminal appeal No. 67 of 1992 before the
High Court of Madras.
  Upon further cross-examination of the priest and the accused, the
learned Single Judge held the appellant to be guilty of the offence of
bigamy as the second marriage was contracted during the subsistence
of his earlier marriage. This impugned judgment of the learned judge
was challenged before the court.

LEGAL ISSUES:

1. Whether the second marriage entered by appellant with the second

accused, Kasturi on 18.6.1984 constitute a valid marriage under the
Hindu Marriage Act, 1955 ?
2. Whether “Saptapadi” is an essential ritual to be performed for the
solemnisation of a marriage?
3. Whether the essential ingredients of the offence under Section 494 are
complied in the present case?

RATIO DECIDENDI:

4. In the instant case, the appellant and his alleged second wife are
residents of the State of Tamil Nadu and their marriage was performed
within the state.
5. In the Hindu Marriage Act, 1955 there is a State Amendment by the
State of Tamil Nadu, which has been inserted as Section 7-A, which
applies to any marriage between two Hindus solemnized in the
presence of relatives, friends, or other persons. The main thrust of this
provision is that the presence of a priest is unnecessary to constitute a
valid marriage.
6. It was testified by the witness that the bridegroom brought the
“Thirumangalam” and tied it around the neck of the bride and thereafter
the garlands were exchanged and the father of the bride stated that he
was giving his daughter to “Kanniyathan” on behalf of and in the
witness of “Agnidevi” and the acceptance of the same by the father of
the bridegroom clearly shows that the marriage was being performed
under the custom applicable to the parties.
7. Thus, regarding question (1), it could be concluded that the marriage
between the accused and the alleged second wife was valid under
Section 7A of the Hindu Marriage Act, 1955.

Regarding question (2), they have contended that “Homa” and “Saptapadi”

are the two essential ceremonies to be performed in order to constitute a valid
marriage under Hindu law.

Saptapadi was held to be an essential ceremony for a valid marriage only in

cases it was admitted by the parties that, as per the form of marriage
applicable to them, that was an essential ceremony.
Since, in the instant case, the appellant had no such case that the “Saptapadi”
was an essential one among the members of the community to which they
belong, the marriage between the appellant and the second accused, Kasturi
is to be considered valid as per the personal law applicable to them.

In regard to question (3), the essential ingredients of the offence

under Section 494 of IPC are:

 The accused must have contracted the first marriage;

 The accused must have contracted a second marriage during
the subsistence of his earlier marriage;
 Both the marriages must be valid in the sense that
the necessary ceremonies governing the parties must have
been performed.

Judgment

In light of the above discussions, it was held that the parties are governed
by Section 7-A of the Hindu Marriage Act 1955, as the parties are Hindus
residing within the State of Tamil Nadu.

Therefore, the Learned Single Judge was right in holding that the appellant
had committed the offence of bigamy under Section 494 of IPC as it was done
during the subsistence of his earlier marriage held on 06.09.1970.
Accordingly, the matter was correctly remanded to the trial court for awarding
the appropriate sentence and the appeal was dismissed.

22 Appellant: Bhaurao Shankar Lokhande

Respondents: State of Maharashtra
Brief Facts: The appellant, Bhaurao Shankar Lokhande, was married to the complainant Indubai
in 1956.  Their marriage was solemnized as per religious rites and customs. During the course
time, he married another woman named Kamlabai in February 1962. The complainant then
accused the appellant under charges of Section 494 of the Indian Penal Code and accused the
appellant’s brother under charges of Section 114 of the Indian Penal Code. Their appeal to the
Session Judge was dismissed. Their revision to the High Court also failed.  They have preferred
this appeal by special leave.
 Issues:
(1) Whether the second marriage was solemnized by appellant valid or not?

(2) Whether the appellant is guilty under charges of Section 494 of IPC?

Judgment: There was the urge to prove whether the second marriage was solemnized by the
way of customary rites performed in the second marriage. Customary rites include two
ceremonies namely (1) invocation before the sacred fire (2) Saptapadi. Prima facie, the
expression ‘whoever…. marries’ must mean ‘whoever marries validly’ or ‘whoever…. marries and
whose marriage is a valid one’. Since no customary and religious rites were performed, the
second marriage is completely invalid. If the marriage is not a valid marriage, it is no marriage in
the eye of law. If not solemnized, the marriage will not satisfy the first condition of Section 17 and
therefore, it cannot be declared void. As a consequence, it will not be an offence under Section
494 of the Indian Penal Code. Henceforth, the appellant is not guilty under charges of Section
494 of the Indian Penal Code and is acquitted.\

Lily Thomas v uoi

Facts:
Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ
Petition in this Court stating that she was married to Shri G.C. Ghosh in accordance with the
Hindu rites on 10th May, 1984 and since then both of them were happily living at Delhi.Around
the 1st of April, 1992, Shri G.C. Ghosh told the petitioner that she should in her own interest
agree to her divorce by mutual consent as he had any way taken to Islam so that he may remarry
and in fact he had already fixed to marry one Miss Vanita Gupta resident of D-152 Preet Vihar,
Delhi, a divorcee with two children in the second week of July 1992. Shri G.C. Ghosh also showed
a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June,
1992 certifying that he had embraced Islam.The petitioner contacted her father and aunt and told
them about her husband’s conversion and intention to remarry. They all tried to convince Shri
G.C. Ghosh and talk him out of the marriage but of no avail and he insisted that Sushmita must
agree to her divorce otherwise she will have to put up with second wife.It was stated in the
petition that Shri G. C. Ghosh has converted to Islam solely for the purpose of re-marrying and
has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he changed
his name or religion and other official documents.

She ultimately prayed for the following reliefs:

(a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus and non-
Hindus after conversion to Islam religion are illegal and void;

b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable amendments in
the Hindu Marriage Act so as to curtail and forbid the practice of polygamy;

(c) Issue appropriate direction to declare that where a non Muslim male gets converted to the
“Muslim” faith without any real change of belief and merely with a view to avoid an earlier
marriage or enter into a second marriage, any marriage entered into by him after conversion
would be void;

(d) Issue appropriate direction to Shri G.C. Ghosh restraining him from entering into any
marriage with Miss” Vanita Gupta or any other woman during the subsistence of his marriage
with the petitioner; and

(e) pass such other and further order or orders as this Hon’ble Court may deem fit and proper in
the facts and circumstances of the case.

 
Issues:
1. Whether there should be Uniform Civil Code for all citizens of India?
2. Whether a Hindu husband can solemnise second marriage by converting to Islam?
3. Whether the husband would be liable for bigamy under section 494 of IPC?
4. Judgement
 5. Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to
contract second marriage then such marriage would be null and void under Section 11 of
Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of
the said Act which deals with the offence of Bigamy. The person committing Bigamy
under Section 17 shall be punished in accordance with the provisions of 494 and 495 of
IPC, 1860. If a Hindu wife files complaint against her husband who during existence of
first marriage do second marriage after conversion to another religion then the offence of
Bigamy shall be dealt with Hindu Marriage Act, 1959.
6. The apex Court has said that violation of Article 21 is misconceived, article 21 of the
Constitution states that “no person shall be deprived of his right and personal liberty except as
per procedure established by law” and herein such an act of marriage while the first
marriage still persists is codified in IPC sec 494 there is no violation of Art. 21.

Issue of Pinninti Venkataramana v. State, AIR 1977

AP 43 (FB): 1977 Cr ICJ 368: ILR (1976) AP 837

Whether a Hindu marriage governed by the provisions of the Hindu Marriage Act,

1955 where the parties to the marriage or either of them, are below their respective ages as
set out in clause (iii) of section 5, is void ab initio?

Facts

A wife filed a complaint in the court of the First Class Judicial Magistrate against her husband
and ten others, alleging that the husband had committed an offence punishable
under section 494 of the Indian Penal Code and that the other ten were a party to it.

The husband’s defence was that at the time of the marriage, i.e., in 1959, he was 13 years of
age and the complainant wife was nine years old and hence the marriage between them
being void marriage and no marriage in the eye of the law, he had not committed any
offence under section 494 by marrying another girl.

The Magistrate, however, held that the marriage was legal and an offence was committed by
his marrying again and so convicted them. The convictions were confirmed in appeal,
though with slight modifications. Against their convictions, the petitioners filed a revision in
the High Court.

Panchireddi Appala Suramma v. Gadela Ganapatlu, AIR 1975 AP 193: (1975) 1 AP LeJ 37: ILR
(1975) AP 105, was relied upon where the Division Bench had held that a marriage which is in
contravention of clause (iii) of section 5 of the Hindu Marriage Act is void ab intio and is no
marriage in the eye of law. Since it was felt that the view taken by the D.B. was not in
accordance with the provisions of the Hindu Marriage Act the matter was referred to a
larger Bench.

Thereafter, the matter came up before Chinnappa Reddy and Punnayya, JJ. and by their
order dated March 22, 1976 they referred the matter to a Full Bench. Relevant provisions of
the Hindu Marriage Act Child Marriage Restraint Act sections 494 and 495 of the Indian
Penal Code and several cases were referred to

he court came to the conclusion that a marriage in contravention if the minimum age
prescribed by the Ad was not a void marriage. Had the law makers intended that, they
would not have inserted clause (iv) in sub-section (2) of section 13 which gives to a wife
married before the attainment of the age of 15 years, an option to repudiate her marriage
after attaining the age of 15 but before attaining the age of 18.

This clause clearly indicates the mind of the Legislature that the violation of clause (iii) of
section 5 would not render the marriage either void or voidable but give an option to the girl
to repudiate the marriage if solemnized before the age of 15. Also if each of the clause
in section 5 were to be treated as a condition precedent, the violation of which would render
the marriage void ab initio, the Legislature itself would not have given out its mind by
providing for contravention of the different clauses of section 5 differently.

Neither under section 11 nor under section 12 of the Hindu Marriage Act is there any mention
of a marriage in contravention of section 5(iii), thus meaning that such marriage is neither
void nor voidable. If the view expressed in P.A. Saramma (supra) were to be accepted, then
according to the court, the children of such marriage would be rendered bastard even
under section 16 of the Hindu Marriage Act which provides for legitimisation of children of
marriage which is void or voidable under section 16. It held:

It is well-settled principle of the law relating to marriages that the court should lean against
the interpretation of any provision of law which is liable to render innocent children of the
marriage as bastards.”

Order: on Pinninti Venkataramana v. State

The Court clearly ruled that a marriage where the parties or any one of the parties is under
the minimum prescribed age, is legal marriage. The only consequence of such marriage is
that the persons concerned are liable to punishment under section 18, and under clause (iv)
of sub-section (2) of section 13 an option to repudiate the marriage has been given to the
wife. The appeal against conviction was accordingly, dismissed as the husband had
committed an offence under section 494 of I.P.C.
FACTS OF ASHA QURESHI vs AFAQ QURESHI CASE:

The marriage between the parties was solemnized on 23.01.1990 under the

religious rites and rituals applicable to the form of marriage. Soon after their
wedlock, the relations between the parties became strained and hence,
they decided to live separately.

It was alleged by the respondent that the appellant/wife had

exercised fraud by suppressing the fact of her earlier marriage with Motilal
Vishwakarma, who had died prior to their marriage. Therefore, a petition was
being filed by the respondent under Sections 24 and 25 of the Act, to seek a
decree of nullity and of a declaration of their marriage as null and void.

In view of the above-mentioned allegations, it was contended that the

appellant and the respondent were known to each other for a long time prior
to the marriage, and the respondent knew fully that the appellant was a
widow. Hence, the allegation of suppressing any material fact so as to
constitute an exercise of fraud was denied by the appellant.

The respondent prayed before the concerned court the decree of nullity of
marriage under Section 25(iii) of the Hindu Marriage Act.

LEGAL ISSUES:

1. Whether the appellant/wife suppressed the fact of her earlier marriage

and she being a widow?
2. Whether the suppression of any material fact amounts
to fraud under Section 17 of the Indian Contract Act, 1872?
3. Whether the appellant obtained the consent of the respondent/husband
for marriage by exercising fraud?
4. Whether the respondent is entitled to seek a decree of nullity of
marriage under Section 25 of the Special Marriage Act?

RATIO DECIDENDI:

In view of question (1), it was noticed that the appellant/wife in her written

statement nowhere specifically averred that she had intimated the
respondent about her first marriage. It was only vaguely asserted by her
that the respondent was aware of her being a widow. However, it was not
pleaded that she herself informed the respondent about her earlier marriage,
prior to the marriage with the respondent. 

It was observed that in her earlier statement the respondent came to know

about her being a widow from her neighbors and later it was claimed that
she herself informed the respondent about the above fact. Hence, the
pleadings of the appellant appear to be vague and cannot be reliable.

Regarding questions (2) and (3), it is quite evident from the above discussions
that the appellant was married before and was a widow at the time of her
marriage with the respondent, which was a material fact that was never
intimated by her to the respondent. It was also submitted that if the
respondent had known about her earlier marriage, he would not have entered
marital ties with her proving that the consent of the respondent for
marriage was obtained by exercising fraud in view of Section 17 of the
Indian Contract Act, 1872.

To constitute fraud under Section 17 of the Indian Contract Act, it

is not essential that there should be any misrepresentation by express
words. It is sufficient if the party deceiving knowingly induced the defendant
to enter a contract by leading him to believe that which the party deceiving
knew to be false.

Regarding question (4), any marriage solemnized under the Act shall be

voidable and may be annulled by a decree of nullity in the following cases:

1. If the marriage has not been consummated owing to the wilful refusal of
the respondent to consummate the marriage, or
2. In case at the time of marriage, the respondent was pregnant by some
other person other than the petitioner, or
3. If the consent of either party to the marriage was obtained by coercion
or fraud, as defined in Section 17 of the Indian Contract Act 1872,

Provided that, in the case specified in clause (ii), the Court shall not grant a
decree unless it is satisfied:

1. That at the time of marriage, the petitioner was ignorant of the facts
alleged.
2. Those proceedings were instituted within a year from the date of the
marriage ,and
3. That marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of the
grounds for a decree.

JUDGMENT:

In view of the above-mentioned facts and circumstances, Trial Court held that
the appellant suppressed the material fact of her earlier marriage with Motilal
Vishwakarma, and thus the consent of the respondent for the marriage was
obtained by fraud.
Since it was made clear that suppression and active concealment of the fact
of her earlier marriage and her being a widow amounted to material
misrepresentation; It entitled the appellant to a decree of nullity under Section
25 (iii) of the Special Marriage Act. Therefore, the impugned judgment of the
Trial Court was justified by the Learned Counsel, and the appeal was
dismissed.

FACTS OF LAJJA DEVI vs STATE CASE:

 A letter was written by Smt. Lajja Devi to the Chief Justice of the Court
alleging that her daughter Ms. Meera (minor) was kidnapped by
Pramod, Vinod and Manoj from Delhi, where her daughter visited her
maternal uncle to meet him.
 After which she also filed an F.I.R under section 363 of I.P.C. The letter
was deemed as a Writ Petition and was placed before the bench.
 Moreover, it was admitted by Ms. Meera (minor) that she was not
kidnapped, but went with the accused in her own free will. It took some
more petitions with similar facts into consideration.

LEGAL ISSUES:

1. What will be the legality of marriage solemnized between a minor and

an adult?
2. Whether it permit the husband the custody of his minor wife?

RATIO DECIDENDI:

1. After analysing various authorities, courts concluded such marriages

are simply not void nor avoidable they are non existent.
2. But there are certain provisions in some enactments which imply or
refer such marriages as voidable. The section 6 (1) (c) of Dowry
Prohibition Act uses words “when women was a minor” or section 13
(2)(iv) of Hindu Marriage Act which provides the option of dissolution
to women these provisions confer such marriages are voidable.
3. The Prohibition of Child Marriage Act, 2006 itself allows marriage of
minor girl if the customs, tradition, religion, personal law provides for the
same. Rendering such marriages a legal status.
4. If a marriage is not void, a wife would follow her husband as it is already
provided under section 6 (c) Hindu Minority and Guardianship Act,
1956, that the husband is the guardian of the wife
5. If the girl is below 16 years of age, consent is immaterial. But if a
special circumstance persists and the girl, after attaining the age of 16
or more, gives a statement that she consented to go with the man in
 question, then the proceeding under section 363 and 376 I.P.C can be
quashed.

DECISION:

It was concluded by the court and established by the evidence that Ms. Meera
was minor when she consented to go with the accused and married him. But
as of now, she is 17 years of age and as per the analysis this marriage is
voidable and when attains the age of majority it will be her choice to exercise
her rights under the Prohibition of child marriage act, 2006.

FACTS OF P vs K Case 1982:

 The appellant (husband) and respondent (wife) both are Hindu and
were married on 20th June 1976.
 The marriage was not consummated as the respondent resisted sexual
intercourse with the appellant. Subsequently, the appellant, through a
medical test, found the respondent suffered from second-degree
prolapsed of the uterus and concealed the fact all this time.

LEGAL ISSUES:

1. Whether a concealment of known prolapsed and obtaining the consent of

marriage would amount to fraud?

2. Whether such prolapsed of the uterus is equated to impotency?

CONTENTIONS:

1. The Appellant asserted the respondent was suffering from second-degree

prolapse of the Uterus, which reflects her being non-virgin.

2. Respondent was already aware of the fact and to hide her condition she
resisted sexual intercourse.

3. Such concealment /misrepresentation by the respondent and her family

should be deemed as fraud and marriage should be annulled.

RATIO DECIDENDI:

1. The bench deemed the respondent was aware of her condition before
her marriage and her abstinence from sexual intercourse with her
husband is substantiating the same.
2. Concealment/misrepresentation of every fact or circumstance cannot
be categorised as fraud or be sufficient for annulment only
 concealment/ misrepresentation of material facts will be contemplated
as fraud or would be held as sufficient ground for annulment.
3. Any facts or circumstance which materially interfere with marital life or
pleasures, including the sexual pleasures of a married couple, can be
considered as material facts and circumstances.
4. Sexual intercourse without physical manipulation of protruding uterus
will probably cause abhorrence and dislike and would affect the sexual
pleasure of spouse and concealment of such will be considered as
fraud.
5. Inability to have ordinary and complete sexual intercourse is considered
as impotency and, as pointed above, sexual intercourse without
physical manipulation of protruding uterus will probably cause
abhorrence and dislike which could not lead to ordinary and complete
intercourse, therefore, such can be equated to impotency.

DECISION:

The Court granted the appeal of the appellant and directed him to pay
permanent alimony to the respondent, which was set at Rs.13,500/-.

BABUI PANMATO KUER Vs. RAM AGYA SINGH

PATNA HIGH COURT

The petitioner filed the case for the annulment of marriage on the grounds of fraud under
clause(c) of sub-section (1) of section 12 of Hindu Marriage Act. The petitioner who was
somewhat above 18 years, before the solemnization of marriage, overhead her father telling
her mother that the bridegroom was of the age between 25 to 30. She didn't objected to it and
thus her silence amount to her consent for that marriage. She was having the heavy veil
before her face due to which she was not able to see the face of the bridegroom. After
marriage she found that her husband was around 60 years old. She ran away twice from her
matrimonial home but everytime the respondent was able to get her back in his house by
filing the petition under section 498 of IPC. Finally the girl-petitioner decided to file the
present case. 

JUDGEMENT : 

The Additional District Judge dismissed her petition for dissolution of marriage by stating
that there was no direct misrepresentation to the plaintiff as the particulars of the bridegroom
were not directly conveyed to plaintiff. Secondly, misrepresentation under section 12(1)(c) of
the Act is what to be made during the solemnization of the marriage and not earlier, i.e. when
the negotiations for the marriage were going on.
The High Court in her opinion stated that the petitioner being sui juris, her consent to the
marriage must have been taken directly. Even if the consent was not taken directly, the
mother who was acting as the agent of the petitioner would have been provided by the true
facts. The concealment of material facts from the mother amounts to the concealment or
misrepresentation to the petitioner as dictating the particulars to mother be intended as
dictating to the petitioner itself. 

Moreover the High Court observed that the expression 'at the time of the marriage' is found in
clause (a) and (d) and not in clause (c). Therefore it is clear that consent by fraud particular at
the time of marriage is not necessary, but only the consent taken by fraud anytime before the
solemnization constitutes the wrong under clause (c) of sub-section (1) of section 12 of the
act. 

Therefore the honourable High Court set aside the order of Additional District Judge and by
the order annul the petitioner's marriage with the respondent. 

FACTS OF SEEMA ASHWANI KUMAR CASE:

During the hearing of the petition, it was observed by the bench that in various
cases many people are refuting the existence of marriage as there is no
evidence to substantiate the same, therefore, the Amicus Curiae assisted the
court in laying down some guidelines to avoid such situations.

RATIO DECIDENDI:

1. By analysing the women commission report, it was observed that

registration of marriages would be the right step.
2. List III of Schedule VII, entry 30 of the Indian Constitution, deals with
“Vital Statistics” which related to registration of birth and death and its
scope is extended to the registration of marriages.

1. Most of the states have existing rules and procedures relating to the
registration of marriages but not making registration mandatory. Four
States, i.e. Maharashtra, Gujarat, Karnataka, Himachal Pradesh and
Andhra Pradesh have made registration of marriages mandatory.
2. Section 8 of the Hindu Marriage Act of 1955, also specifies that
registration of marriage would act as proof of the existence of marriage.

DECISION:

The court concluded that:

1. The registration of marriage would serve as the presumption of

marriage, and non-registered marriages would not have the benefit of
the presumption.
 2. Therefore, all the citizen of all religions must register their marriage in
the state where the marriage was solemnized.
3. The court also directed the state and central government –
a. To create rules/regulation/ procedure for registration of marriages
b. To appoint an officer who should be authorized to register the
marriage, the age and marital status of the parties.

The consequences of any false representation should be clearly stated in the

rules made.

Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 

In this case husband was the army officer they both got married in 1945 and
husband left the home for his duty, the wife grew closer to another person,
when husband confronted her she left the the home but came back after
some time and felt guilty about what she did. Husband didn’t agreed to what
she was saying and refused to take her back.

Here husband was not the deserter.

Decision

The SC held that 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) absence
of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid. 

Sanjeev gupta v ritu gupta

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