Registration of Marriage, Judicial separation and Divorce | Family Law - CLAT PG PDF Download

Registration of Marriage (Section 8)

Section 8 states that:

• The state government is facilitating the provision as a proof to Hindu so that the person comes into a valid marriage with the prescribed manner.
• All the rules made in this section shall be laid before the state legislature as soon as May.
• Hindu marriage registrar has all the powers and reasonable time open for the inspection and collects evidence and certified them after the payment of a prescribed fee.

Seema v. Ashwani Kumar, AIR 2006 S.C 1158 

• The Supreme Court in this case directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized.
• The Bench, comprising of Justice Arijit Pasayat and Justice S.H. Kapadia also directed that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

Void Marriages (Section I l)
Any marriage solemnized after the commencement of the Hindu Marriage Act 1955, if it contravenes any of the provisions of this act, the marriage will be void. The marriage will have not any legal entity nor will it be enforceable.

Voidable Marriages (Section 12)
Any marriage solemnized after or before the commencement of this will be voidable on the following grounds:

• No sexual intercourse has been done after the marriage due to the impotence of the Husband.
• Marriage is in contravention of Section 5 (ii) of this Act which states that the bride shall attain the age of 18 and the groom shall attain the age of 21.
• There shall be a consent of the bride.
• If the husband has pregnant another woman other than the wife.
• The wife has filed a request for annulling the marriage

Consummation of Marriages 

• Consummation of marriages means full and normal sexual intercourse between married person.
• A marriage is consummated by sexual intercourse. It consists in the penetration by the male genital organ into the female genital organ. Full and complete penetration is an essential ingredient of ordinary and complete intercourse.
• Partial, imperfect or transient intercourse of not Consummation. The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be proved by medical evidence.

Impotency 

• Impotency is the inability to have complete and normal sexual intercourse. It may arise from a physical defect in either partner or from a psychological barrier amounting to invisible repugnance on the part of one to sexual relations with that partner.
• Sterility is irrelevant and does not imply impotency. Absence of uterus in the body of the one's female partner does not amount to impotency but the absence of a proper vagina would mean impotency.
• Similarly organic malformation making a woman sexless would means impotency. If a husband fails to satisfy his wife's abnormal appetite for sex that cannot be regarded as impotency.
• Thus impotency means practical impossibility of consummation of marriage. Sexual intercourse which is incomplete occasionally does not amount to impotency.
• It includes discharge of healthy Semen containing living sperms in the case of men and discharge of menses in the case of women.

Matrimonial Reliefs under Hindu Marriage Act 

• Restitution ]of Conjugal Rights: Section 9
• Judicial separation: Section 10
• For void marriages: Section 1 1
• Voidable marriages for nullity of legally irregular marriages: Section 12
• Divorce: Section 13

Restitution of Conjugal Rights

1. The withdrawal by the respondent from the society of the petitioner (aggrieved party).
2. The withdrawal is without any reasonable or lawful ground.
3. The court must get satisfied with the truth of the statement made in the petition.

Sushil Kumari Dang v. Prem Kumar 

• Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct.
• Following which he filed another petition for judicial separation which shows the extent of his sincerity and interest in keeping the wife with him.
• So, the Delhi High Court set aside the decree of restitution granted by the lower court.

Constitutional Validity of Section 9

In the case of  T. Saritha Vengata Subbiah v. State  , the court deemed Section 9 of the Hindu Marriage Act, concerning restitution of conjugal rights, as unconstitutional. The court argued that this provision infringes on a wife's privacy by forcing her to cohabit with her husband against her will. However, in  Harvinder Kaur v. Harminder Singh  , the judiciary reverted to its original stance, upholding Section 9 as completely valid.

Saroj Rani v Sudarshan Kumar 

• In this case, the constitutionality of Section 9 of the Hindu Marriage Act was challenged.
• The wife filed a petition for restitution of conjugal rights under Section 9 of the Act, with her husband consenting to the decree.
• After one year, the husband filed for divorce under Section 13 of the Act, claiming no actual cohabitation had occurred despite the decree.
• The Supreme Court upheld the constitutionality of Section 9, stating it serves a social purpose by aiding in the prevention of marriage breakdown.

Itwari v. Asghari, AIR 1960 All. 684 

• The court ruled that even without clear evidence of the husband's cruelty, a husband cannot obtain a decree for restitution if the circumstances make it unjust and inequitable to force the wife to live with him.

Judicial separation: Section 10 

• Judicial separation allows parties to live apart under a court decree or a mutual agreement. Once a decree is issued, spouses are no longer obligated to live together, though the marriage remains intact.
• Judicial separation can only be granted if the marriage is valid. The aggrieved party can petition for separation on the same grounds as divorce under Section 13 of the Hindu Marriage Act.
• Separation ends when parties revoke their separation agreement or when the court rescinds the decree upon petition by either party.
• Separation agreements must relate to present separation and are void if they stipulate future separation. Covenants against restitution of conjugal rights are enforceable but not binding on courts.
• If cohabitation does not occur for one year or more after judicial separation, either party may apply for divorce.

Divorce 

•  Adultery:  Engaging in any sexual relationship outside of marriage, including intercourse, is considered adultery.
•  Cruelty:  A spouse can file for divorce if subjected to mental or physical harm that endangers life, limb, or health. This includes actions like denying food, continuous mistreatment, dowry-related abuses, or uncontrollable sexual behavior.
•  Desertion:  If one spouse voluntarily leaves the other for a period of at least two years, the abandoned spouse can file for divorce on the grounds of desertion. Two key elements are required: the fact of desertion and the intention to desert.
•  Conversion:  If either spouse converts to a different religion, the other spouse may file for divorce. However, conversion to a non-Hindu religion does not automatically dissolve the marriage; it allows the aggrieved spouse to seek a divorce decree from the court.
•  Mental Disorder:  A mental disorder can be grounds for divorce if the spouse suffers from an incurable mental illness and the petitioner cannot reasonably expect to live together. In the case of Pankaj Mahajan v. Dimple, the court granted a divorce based on the respondent wife's schizophrenia.
•  Leprosy:  A petition can be filed based on leprosy if it is a virulent and incurable form of the disease. However, leprosy has been removed as a ground for divorce under the Personal Laws (Amendment) Bill, 2018, as it is now considered a curable disease. In cases of incurable leprosy, a divorce decree can be granted, as observed in Swarajya Lakshmi v. G.G. Padma Rao.
•  Venereal Disease:  If one spouse suffers from a severe and easily communicable disease, the other spouse can file for divorce. Sexually transmitted diseases like AIDS fall under this category. The disease must be incurable.
•  Renunciation:  If a spouse renounces worldly affairs by embracing a religious order, the other spouse may file for divorce.
•  Not Heard Alive:  If a person is not seen or heard alive by those who are expected to naturally hear of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse can file for divorce if they wish to remarry.

Adultery 

•  Hirachand Srinivas Managaonkar v. Sunanda:  In cases where a spouse's adulterous behavior is proven, the court may grant judicial separation, potentially leading to a decree of divorce.]

Cruelty 
Leading Case: Dastane v. Dastane 

• Five criteria are used to determine if a conduct amounts to legal cruelty:
• The acts constituting cruelty must be proven according to legal evidence standards.
• The petitioner must have a genuine apprehension of real injury or harm from the conduct.
• The apprehension should be reasonable, considering the socio-economic and psycho-physical conditions of the parties involved.
• The petitioner should not exploit their position.
• The petitioner should not have condoned the acts of cruelty through their actions.
•  Suman Singh v. Sanjay Singh (Supreme Court):  In this case, the husband cited nine instances of "cruelty" under Section 13(l)(i-a) of the Hindu Marriage Act, claiming entitlement to marriage dissolution. The court ruled that isolated past incidents, especially those condoned due to the parties' compromising behavior, do not constitute acts of cruelty as per Section 13(1)(i-a) of the Act.
•  Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court):  The Court observed that if the criminal complaint filed by the wife against her husband was false and intended to bring him back, leading to his arrest and seven days in jail, it would constitute cruelty by the wife against her husband

Desertion 

• Desertion occurs when one spouse voluntarily leaves the other for a minimum of two years. The abandoned spouse can file for divorce on the grounds of desertion. Two essential elements are required for desertion:
• Factum of desertion: This refers to the act of desertion itself.
• Animus decidendi: This refers to the intention to desert

Conversion 

• If either spouse converts to a different religion, the other spouse has the right to file for divorce. In the case of Suresh Babu v. Leela, it was clarified that conversion to a non-Hindu religion does not automatically dissolve the marital bond.

Mental Disorder 

• In the case of  Pankaj Mahajan v. Dimple  , the Supreme Court granted a decree of divorce based on the husband's evidence showing that the wife was suffering from schizophrenia. The court held that insanity could be a valid ground for divorce. In this context, the husband was granted the divorce decree.

Leprosy 

• Prior to the Personal Laws (Amendment) Bill, 2018, a petition could be filed on the grounds of leprosy if it was a 'virulent and incurable' form of the disease. However, leprosy has since been removed as a ground for divorce because it is now considered a curable disease.
• In the case of  Swarajya Lakshmi v. G.G. Padma Rao  , the Supreme Court discussed leprosy as a ground for divorce. The court stated that in cases of incurable and virulent leprosy, a decree of divorce could be granted. Based on this reasoning, the court granted a decree of divorce in such cases.

Venereal Disease 

• If one spouse is afflicted with a severe and easily communicable disease, the other spouse has the right to file for divorce. Sexually transmitted diseases, such as AIDS, fall under the category of venereal diseases. It is important to note that the disease must be incurable.
• In the case of  Mr. X v. Hospital ZLyl  , a doctor informed a fiancée about her soon-to-be husband's communicable venereal disease, which led her to refuse marriage. The Supreme Court ruled that the doctor's action did not violate Mr. X's privacy and was for the greater good. The court also emphasized that in such cases, divorce is permissible

Renunciation 

• If a spouse renounces worldly affairs by embracing a religious order, the other spouse has the right to file for divorce.

Not Heard Alive 

• If a person is not seen or heard alive by those who are expected to have natural knowledge of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse can file for divorce if they wish to remarry.

Differences between Judicial Separation and Divorce 

• In the case of divorce, a spouse can only file a suit after one year of marriage, except in cases of "extreme hardship." However, there is no such time limit for judicial separation.
• Judicial separation and divorce are distinct steps in the dissolution of marriage, with divorce following judicial separation.
• Judicial separation represents a temporary suspension of mutual rights, while divorce signifies the permanent end of the marriage without the possibility of reconciliation.
• All grounds mentioned under Section 13 can be used for divorce, but conversion and absence for more than seven years cannot be grounds for judicial separation.
• In judicial separation, spouses have the opportunity to reconcile, whereas in divorce, this privilege is lost as the relationship is legally terminated.