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The Marriage Laws (Amendment) Act, 1976

December 28, 2008
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Marriage And Divorce Law Reforms

Cite as : (1977) 2 SCC (Jour) 1

The speed with which Parliament passed the reforms in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 is really commendable, though opinion may differ whether the reforms that have been carried out are equally commendable. The purpose of this article is to examine these reforms in the context of our social conditions and the contemporary thought.

The Special Marriage Act, 1954 is an enabling statute, that is to say, it applies only when two persons choose to marry under it. If two persons want to perform a civil marriage—what is commonly, though erroneously, goes by the name of court marriage—they have no alternative but to marry under the Special Marriage Act. In all other cases in India a marriage is either a Hindu marriage, Muslim marriage, Christian marriage, Parsi marriage or Jew marriage. Again, if an inter-religious or inter-community marriage (such as when a Hindu wants to marry a non-Hindu) has to be performed, then it can be performed only under the Special Marriage Act. (Muslim law permits a Muslim male to marry a non-Muslim woman who is a Kitabia, but not a fire-worshipper or idol-worshipper). On the other hand, if two Hindus want to perform a Hindu marriage, then they have to perform it under the Hindu Marriage Act. Since the Special Marriage Act is an enabling statute, recourse to which would be ordinarily taken by enlightened, educated, advance people, in short, by the modern man and Parliament tried to enact in it some advance thought, such as divorce by mutual consent, while the Hindu Marriage Act was meant for all Hindus, modern, not-so-modern as well as backward, conservative, orthodox, and therefore Parliament tried, and tried successfully, to give the statute some conservative stance.1

Thus, the law that was enacted in both the statutes, though related to marriage and divorce, was different. The one idea behind the recent reforms is to bring both statutes at par and enact in them some advance thought. In the language of the Statement of Objects and Reasons appended to the Bill the objectives are three-fold : to liberalise the provisions relating to divorce, to enable expeditious disposal of proceedings, and to remove certain anomalies and handicaps that have come to light after the passing of the Acts. Before the Marriage Laws (Amendment) Bill, 1976 was framed, the Ministry of Law has formulated some proposals which were sent to the Law Commission which accepted some suggestions, rejected others, and added some of its own. These constitute the 59th Report of the Law Commission. The Commission took pride that it took only 45 days in giving its considered opinion. The Indian Law Institute organised a seminar on these reforms—in which the present writer participated. Beyond these exercises, the nation and the people have not deliberated on the matter. In short, there has been no national debate.

Capacity to Marry

Under the Special Marriage Act, 1954 any “two persons” can marry.2 The two persons may belong to any religion or they may belong to different religions, they may be Indians or foreigners. They may be domiciled here or abroad. In short, just because two persons are present in India (though 30 days residence is necessary3), they can marry under the Act. Only Hindus can marry under the Hindu Marriage Act.4 The term “Hindu” includes within its ambit all those persons who are followers of Hinduism, Jainism, Buddhism or Sikhism or who are born of such parents.5 If one of the two parents is a Hindu and the child is brought up as Hindu, then such a child will be Hindu.6 Not merely this, if it can be shown that a person is not a Muslim, Christian, Parsi or Jew, then he will be treated as Hindu.7

Under both the statutes polygamy is not recognised.8 All marriages must be monogamous. If anybody performs a bigamous marriage, he or she can be prosecuted for bigamy under Sections 494 and 495, Indian Penal Code.9 In modern India, polygamy—limited to four wives—is permitted only to Muslims. Under the Special Marriage Act, 1954 the age of the bride should not be less than 18 years and of the bridegroom less than 21 years,10 but under the Hindu Marriage Act the bride should not be less than 15 years and the bridegroom less than eighteen years,11 and if the bride is less than eighteen years consent of the guardian is required.12 But the peculiarity of this provision is that while violation of age renders the marriage void under the former statute,13 it does not affect the validity of marriage under the latter : in Hindu law the marriage of child of any age (even of a breast-fed) is a perfectly valid marriage.14 A party violating this condition may be sentenced to a term of simple imprisonment which may extend to fifteen days or a fine which may extend to Rs. 1,000 or both.15 The violation of the condition relating to the consent of the guardian also does not render the marriage void or voidable. The marriage remains valid, though the party violating the condition may be sentenced to a punishment of fine which may extend to Rs. 1,000. Under the Sharda Act, 1929 the parents, guardians, go-betweens, the pandit officiating at the ceremony of marriage of a child may be sentenced to a term simple imprisonment which may extend upto three months or a fine or both.16 The rationale behind this provision seems to be that in our country-side child marriages have been performed for such a long time that a total ban on them would render most of our marriages void. Under the present reforms, a child marriage is still valid, but the girl who was married before the age of fifteen has been given the right to repudiate the marriage after the attainment of the age of fifteen and before the attainment of the age of eighteen, irrespective of the fact whether the marriage has been consummated or not. If she had repudiated the marriage, then, on that basis, she can sue for divorce.17 An analogous provision exists in Muslim law, but there repudiation of marriage must be made before the consummation of marriage has taken place. In the context of our social conditions this is a welcome provision. Under Muslim law the right of repudiation of a child marriage belongs to the boy also. Just as a girl below fifteen can be validly married under Hindu law so can a boy below the age of eighteen. It is submitted that the right of repudiation should belong to either party, and it should belong to him or her till he or she attains the age of majority i.e., eighteen years.

The next condition of marriage need not detain us. It lays down that the bride and bridegroom should not be related to each other within the degrees of prohibited relationship.18 The degrees of prohibited relationship are defined differently under both the statutes. The prohibition of sapinda marriages (though only upto five degrees from the father’s side and three degrees on the mother’s side) is still retained for Hindu marriage.19 There is no mercy, no hesitation, and marriages in violation of this condition are null and void under both the statutes.20

Under both the statutes it was laid down that neither party to the marriage should be idiot or lunatic. But violation of this condition rendered marriage null and void under the Special Marriage Act,21 but only voidable under the Hindu Marriage Act.22 In both the statutes, borrowing the provision from English law (Matrimonial Causes Act, 1973), this clause has been substituted by another which lays down 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 (emphasis author’s) the procreation of children (mind, not child, but children), or (c) has been subject to recurrent attacks of insanity or epilepsy.23 It should be noted that under clause (b) the party should be unfit for marriage as well as procreation of children, if a party is unfit for marriage but fit for procreation of children, or vice versa, the clause will not, it seems, apply. The object of this clause is, it is said, to make clear the circumstances is which unsoundness of mind etc. “shall invalidate the marriage”. Under the Special Marriage Act such a marriage is null and void, but, since no consequential amendment has been made in Section 11, Hindu Marriage Act, such a marriage will be valid, though voidable at the instance of the sane party. From the provisions of the Hindu Marriage Act, 1955, as they are framed, it is possible to draw an inference that even when no consent is obtained, the marriage is valid,24 though if consent is obtained by fraud or force the marriage is voidable. The framers of the Amending Act have over-looked this aspect of the matter.

Ceremonies of Marriage

Under both the statutes the ceremonies of marriage are different. Under the Hindu Marriage Act a marriage to be valid must be performed either by the shastric rites and ceremonies or by the customary rites and ceremonies prevalent on the side of either party to the marriage.25 Among the Shastric ceremonies of marriage saptapadi (i. e. seven steps, and not seven rounds)is essential. Among the customary ceremonies, any customary ceremony that prevails either on the side of bride or bridegroom may be performed. This ceremony may be very simple, like exchange of garlands or exchange of rings or it may be very elaborate, but it must be one which is recognized on either side. Thus, a Jain and a Buddhist cannot marry by ananda karaja which is a Sikh ceremony. But a Sikh and a Jain can marry by ananda karaja.26 Under the Special Marriage Act, 1954, apart from the requirement of notice to the marriage officer, the marriage ceremony is very simple one: in the presence of the marriage officer and three witnesses the parties are required to say to each other, “I, AB, take thee, CD, to be my lawful wife (or husband).27 The difficulty that lay with civil marriage was that if two Hindus chose to marry under the Act, it meant their severance of status from the joint family.28 Not merely this, to the property of such couple, and to the property of issues of such couple, it was not the Hindu law of succession that applied, but it was the law of succession as laid down under the Indian Succession Act, 1925.29 This was an unnecessary disability imposed on Hindus if they chose to perform a civil marriage. The Law Commission recommended the removal of this disability. Amending Act removes it. But the disability is removed if both the parties performing the civil marriage are Hindus ; if one of them is a Hindu and the other a non-Hindu then the disability is not removed.30 Thus, in our secular country, religion still looms large. It is submitted that the best course should be that we should have separate law of civil marriages under which any two persons should be allowed to perform a civil marriage. In cases of conflict of inter-personal laws arising out of inter-communal or inter-religious marriages, let the rules of private international law take care of.

Divorce

The most important reforms that have been carried out relate to divorce. While, by the standard of fifties, the divorce provisions of the Special Marriage Act, 1954 were not conservative ; they could, in our social context, be called liberal, but the divorce provisions of the Hindu Marriage Act, 1955 were largely conservative, almost an eye-wash, an apology of divorce.31 The Special Marriage Act enshrined, side by side32 both the consent theory of divorce and the guilt theory of divorce. It contains eight guilt grounds of divorce.33 Briefly put, the guilty theory of divorce stipulates that divorce can be obtained only when one of the parties to the marriage is guilty of some matrimonial offence specified by law and the other party is innocent.34 Initially in the common law jurisdictions the notion was that the objective of divorce law is the punishment of the guilty party, and therefore it was necessary that one of the parties must be guilt of some matrimonial offence and the other should be totally innocent. If in any sense the other party was responsible for, or associated with, the guilt of the guilty party he or she could not get relief.35 More or less following this notion of English law of divorce, the Special Marriage Act lays down that a party to marriage can sue for divorce if the other has committed adultery, is guilty of three years’, desertion, has treated the petitioner with cruelty, has been incurably and continuously of unsound mind for a period of at least three years, has been suffering from a VD in a communicable form for a period of three years, has been suffering from leprosy for a period of three years, is undergoing a sentence of imprisonment for seven years or more for an offence under the Indian Penal Code, though petition, before the present reforms, could not be presented unless the respondent had undergone three years’ imprisonment or has not been heard of being alive for a period of seven years or more.36 In original Act two more grounds were also laid down : if after the passing of a decree of restitution of conjugal rights the respondent has not complied with it for a period of two years or more, or if after passing of a decree of judicial separation the respondent has not resumed cohabitation for a period of two years or more, then, in either case, the petitioner could sue for divorce.37 Divorce, under the Hindu Marriage Act, 1955 was entirely based on guilt theory.38 But the traditional guilt grounds, viz., adultery, desertion and cruelty were made grounds of judicial separation and not of divorce.39 Under the original Act a husband or wife could sue for divorce on the ground that the other party is living in adultery, converted to a non Hindu religion (i. e. other than Hinduism, Jainism, Buddhism, or Sikhism), has been incurably of unsound mind for a period of three years or more, has been suffering from a virulent and incurable leprosy for a period of three years, or has been suffering from a VD in a communicable form for a period of three years, has renounced the world by entering into a holy order (i. e. has become a sanyasi or yati) or has not been heard of as being alive for a period of seven years or more.40 The original Act has the two additional grounds at par with the Special Marriage Act whereunder a petitioner who had obtained a decree of restitution of conjugal rights or a decree for a judicial separation could sue for divorce if, in the former cases, the respondent has not complied with it for a period of two years or more, or, in the latter case, if the respondent has not resumed cohabitation for a period of two years or more.41 Under both the statutes a wife can sue for divorce (but not the husband) on the ground that the husband has been guilty of rape, sodomy or bestiality.42 A Hindu wife has yet another ground on which she can petition for divorce. If before 1955 a Hindu male has taken more than one wife, then any of his wife can sue for divorce provided at the time of the presentation of petition another wife is alive.43

The guilt or offence theory of divorce is essentially a nineteenth century concept where the society abhored divorce as an evil, as devil’s mischief, and therefore that society could agree for divorce only on that basis that one of the parties has committed some sin, some very heinous offence against marriage. Thus, adultery was a ground, since it undermined the very foundation of marriage—the exclusiveness of sex relationship ; cruelty was a ground as it is destructive of mutual confidence, and desertion as it is the negation of very marriage, of consortium. As a corollary to the guilt of one party, the other party was required to be totally innocent.44 Since we adopted the guilt theory in both the statutes, the innocence aspect of the other party was also emphasised.45 Under both the statutes no petition will succeed on the ground of adultery if the petitioner has been accessory to or connived at or condoned the adultery of the respondent.46 Similarly, if cruelty was condoned, petition must fail.47 Collusion between the parties, or improper delay in filing the proceedings is also fatal to the petition.48 Under the Hindu Marriage Act, if can be shown that the petitioner himself or herself is trying to reap advantage of his own wrong or disability, then divorce cannot be obtained.49

This nineteenth century concept of divorce was out-moded even at the time when we adopted it. By 1955 the concept was eroded of its basic structure in some countries by a frontal attack, by enlarging the grounds of divorce so much that incompatibility of temperament was made a ground of divorce ; in some, by out-manoeuvring it, in as much as snoring and nagging were considered to amount to cruelty.50 Not only this, collusive divorces in many western countries became very common. But all this was not enough to solve the social problem.

The basic human and social problem is of the maladjusted couples. Many marriages fail not because of the wickedness of one party or the other ; but they just fail. Many couples try, and try their best to make their marriage a success, but they fail. Sometimes marriages fail because of selfishness, boorishness, callousness, indifference and things like these on the part of one of the parties to the marriage. All this does not amount to any matrimonial offence. Yet, the marriage is not get-going. There are several cases in which parties live separate and apart from each other for several years and just because one of the parties wants the marital bond to continue, there is no way out for the other. In the context of a Muslim case, V. R. Krishna Iyer, J. said : “Daily, trivial differences get dissolved in the course of time and may be treated as the teething troubles of early matrimonial adjustment. While the stream of life, lived in married mutuality, may wash away smaller pebbles, what is to happen if intransigent incompatibility of minds breaks up the flow of the stream? In such a situation, we have a breakdown of the marriage itself and the only course left open is for law to recognize what is a fact and accord a divorce”.51

Breakdown of marriage as the sole basis of divorce is now recognised in several countries of the world. The Soviet Union recognized it in 1944. In most of the communist countries it is recognized basis of divorce. In some states of the United States it is recognized. In England—so far considered the citadal of conservatism—it was recognized in 1969.52 It is more and more now accepted that for divorce, why should it be necessary for one party to prove that the other party has in a culpable manner violated the marital bond. To use the language of the law of the German Democratic Republic, “If a marriage…has lost its significance for the married partners, for the children and thereby for the society, if it has become merely an empty shell, it must be dissolved, independently, whether one of the married partners, or which of the two, bears the blame for its disintegration.53

In the countries of the world the breakdown principle has found recognition in three forms : (i) The determination of the question of fact whether in fact a marriage has broken down is left to the court; if the court, in a case before it, is convinced that a marriage has broken down, it passes a decree of divorce. (ii) The legislature lays down the criterion of break-down ; and the criterion that has been laid down in most countries is that if parties are living separate and apart for a certain duration—ranging from one year to seven years—it is sufficient proof of breakdown of marriage, and a decree of divorce may be granted at the instance of either party. (iii) If parties are living separate for a certain duration—one year to two years—under a decree of judicial separation, or if a decree of restitution of conjugal rights is not complied with for a certain duration—one year to two years—then either party may seek divorce. It should be noticed clearly that in breakdown principle of divorce culpability or guilt or innocence of either party does not figure anywhere. A marriage is dissolved just because it has broken down.54

In Hindu law the breakdown principle in the third form of divorce was introduced in 1964, and in 1970 in the Special Marriage Act. This was done by amending the last two clauses of divorce of the two statutes. The new Section 13(IA) of the Hindu Marriage Act laid down that if parties have not resumed cohabitation for a period of two years or more after a decree of judicial separation, or if a decree of restitution of conjugal rights has not been complied with for a period of two years or more, then either party may sue for divorce. The provision in Section 27(2) of the Special Marriage Act is identical except that the period therein is only one year. When the Hindu law provision came for interpretation before our courts, our courts tested it on the touchstone of guilt theory and looked in the question very closely whether the petitioner is thereby note taking advantage of his own wrong, and if they found culpability in him, they refused the relief.55 In most of the cases the question came in this form : a wife obtained a decree of restitution of conjugal rights but the husband did not comply with it. After a period of two years the husband sued for divorce. The courts said that since he himself has not complied with the decree, he is in the wrong, and if divorce is allowed to him, it will amount to giving him an advantage of his own wrong.56 Looked at in this manner the argument is not merely plausible but appears convincing. But the point is, if non-compliance is a criterion of breakdown of marriage, then divorce should be granted, without bothering which of the two parties bears the blame for the disintegration of marriage. It is very unfortunate that neither the Law Commission, the report of which constitutes the basis of the Marriage Laws (Amendment) Act, 1976, nor the framer of the Marriage Laws (Amendment) Bill, 1976 looked at this aspect of the matter. In this regard only suggestion that has been made is this that the period of two years separation under the Hindu Marriage Act, should be reduced to one year.57 One wished very much that Parliament should have enacted a simple provision that if parties have ceased to cohabit for a period of two years (irrespective of fact whether there is a decree of judicial separation or restitution), then either party may sue for divorce. A provision like this would help us in achieving the goal of a uniform civil code, as such a provision would be, it is submitted, acceptable to all communities. It will not work hardship on the women, as, even after divorce, under both the statutes, a wife, who has no means of livelihood, can claim maintenance from her divorced husband.

Adultery, cruelty and desertion have now been made grounds of divorce under the Hindu Marriage Act58—a thing which Parliament should have done right in 1955. Under the Special Marriage Act, these were already grounds of divorce, though the minimum period of desertion was three years. Now it is reduced to two years. Under the Special Marriage if one of the parties to the marriage is undergoing a sentence of imprisonment for seven years or more, the other party could sue for divorce after the respondent had undergone imprisonment for three years. Now this bar is removed.59 A party can ask for divorce the moment the term of imprisonment begins. Originally, under both the statutes insanity, leprosy and VD were grounds of divorce provided the disease was, at least, three-year old. Under both the statutes this three-year period is omitted.60 A definition of insanity has been also inserted.61

The framers of the Amending Bill considered the insertion of some new grounds for wife alone as a favour to women. One of these grounds has already been noted, viz. if Hindu girl has been married when she was less than fifteen years, she can repudiate the marriage before she attained eighteen years. If she does so, she can sue for divorce.62 The other two grounds are common under both the statutes. These are : if a wife has obtained an order of maintenance under Section 125, Criminal Procedure Code, 1973 or under Section 18, Hindu Adoption and Maintenance Act, 1956 (this will apply under the Act of 1954 only if the wife is Hindu and can claim maintenance under Section 18 of the Act of 1956), and if cohabitation between parties is not resumed for a period of one year or more, wife may sue for divorce.63 It is not necessary that a wife will get an order of maintenance in every case. Ordinarily, if she has an income of Rs. 100 or so and if her husband’s income is not more than Rs. 400-500, the likelihood is that she will not get any maintenance. It appears that the notion behind these grounds is that a husband who pays maintenance to his wife and yet does not resume cohabitation (though one cannot be sure that it is he, it may be she), should be punished. The guilt theory lurks out. Otherwise, it can also happen (and it happens in life) that a wife who is getting maintenance from her husband under any one of these statutes may be satisfied with this state, and for years together may chose to live like this. It is submitted that in all such cases the marriage should be taken to have broken down and either party should be allowed divorce. If this will not be done, the wife can perpetuate her tyranny on her husband by calling herself Mrs. so and so, and not performing duties of wife.

Both the statutes originally stipulated that ordinarily no divorce petition can be moved unless a period of three years has elapsed from the date of solemnization of marriage. In English law such a provision existed and it was called fair trial clause : every marriage should be given a fair trial. The Act has now reduced the period to one year.64 It is submitted that the fair trial rule has some relevance to divorce by mutual consent, but it has no relevance when marriage is sought to be put to an end on account of guilt of one party or on account of breakdown of marriage.

The interesting and welcome aspect of the Amending Act is that a decree of judicial separation can be obtained on the same grounds on which divorce can be obtained ; it is left at the option of the party who has the right to obtain divorce.65 But then, this can be done only on the guilt grounds ; the breakdown grounds have been left out from its purview. It is also proposed to confer a discretion on the court to pass a decree of judicial separation instead of divorce when in his petition a party has sought divorce.66 The courts have been exercising this discretion even otherwise under the general powers.67 The Act has excluded certain grounds from the exercise of this discretion by the court. These are, under the Hindu Marriage Act, conversion, renunciation of world and whereabout of the respondent are not known for a period of seven years (technically known as presumption of death). Under the Special Act, 1954 only the last ground is excluded from the discretion of the court.68

Another welcome provision is the introduction of divorce by mutual consent under the Hindu Marriage Act.69 Under the Special Marriage Act such a provision already exists.70 The protagonists of the consent theory have maintained that mutual fidelity in marriage can prevail only when parties have the same freedom of divorce as they have of marriage. Just as an individual may err in entering into any other transaction, he may as well err in marriage. If two parties realize that this is so, then they should be permitted to put the marriage to an end by mutual consent. But the drawbacks of consent theory are that either it makes divorce too easy or too difficult.71 To prevent hasty divorces by mutual consent the law in various countries provide several safeguards. But nothing can be done, if one of the parties withholds his consent, innocently or wickedly or maliciously. Under the Special Marriage Act it was laid down that a couple may present a petition for divorce by mutual consent on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed to divorce.72 On doing so, they were required to wait for one year. If, after the expiry of the period of one year, if they move a motion that they wanted their marriage to be dissolved, then the court might pass a decree of divorce. Now this latter period of one year has been reduced to six months. A provision of divorce by mutual consent in this modified form has been introduced into the Hindu Marriage Act.73 It is submitted that the latter period of six months desirable as it gives parties an opportunity for rethinking and reconsidering. But the initial period of separation of one year is not justified. In our Indian situation sometimes, it may not be possible to live separately—even though parties are living together very miserably.

The Divorce Proceedings

The most remarkable and the very welcome reforms that have been made relate to procedure in divorce proceedings. It is a common knowledge that at times proceedings of divorce drag on in courts for years, and this writer is aware of some cases which remained pending in the trial court for 8 to 9 years. In most of the states the jurisdiction in matrimonial proceedings is exercised by the District Judge or by the sub-judge I class (many states have delegated matrimonial jurisdiction to the sub-judges I class under the powers-conferred on them under the Hindu Marriage Act), and they proceed in the same leisurely manner as they do in respect of other civil matters, and the adversary litigation system having its own toll, with the result that even inter-locutory proceedings drag on for years. To prevent laws proverbially long delays, the Act now lays down that the trial of a petition under both the statutes “shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.74” Then it is also laid down that every petition under the Hindu Marriage Act or the Special Marriage Act “shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the day of service of notice of the petition on the respondent.”75 Similarly it is laid down that disposal of an appeal under the statutes should not take more than three months from the date of the service of notice of appeal on the other party.76 However, one would not fail to notice the guarded language that is being used, “endeavour shall be made.” One very much wishes that the provision is worded in a much more positive language. It should have been worded like this : “Every petition in a matrimonial cause shall be disposed of finally within six months from the date of service of notice of the petition on the respondent. In a case where a petition has not been disposed within that period the court shall record in writing the reason for the delay.” and then, if a party so desires or feels that court’s delay was avoidable, it may petition to the High Court for a investigation into the matter.

The Act does not provided for family court, though the Law Commission in its Report on the Civil Procedure Code has recommended for the constitution of a family court.77 The need for family court is obvious as any matter pertaining to family, whether it is divorce or custody of children, has to be viewed not in terms of success or failure of a legal action, but as a social therapeutic problem which needs a socially desirable and humanely just solution.

The court engaged in the solution of such problem requires a less formal and more active investigational and inquisitional procedure. Such a procedure implies that the legal action is not a litigation in which parties and their counsel are engaged in winning or defeating the legal action, but an action in which all are engaged in finding a socially just solution to a human problem. One very much wished the family court was brought into being by the present Amending Act.

In the realm of procedure a couple more welcome reforms have been made. One relates to consolidation of proceedings when two petitions are moved in the same court or in different courts. The petitions may be for the same relief though on different grounds, or one petition may be for divorce, the other for judicial separation.78 When both the petitions are made to the same court, then both shall be tried and heard together by the court. In case petitions are presented in different courts, then the later shall be transferred to the court in which earlier petition was made, both will be tried and heard together. The second noteworthy provision is a party opposing a petition can also make a counter-claim for any matrimonial relief.79 Another novel and welcome provision is that in case a court passes a decree of divorce, the court will give a copy of decree to both the parties free of cost.80 It is submitted that this should be done in every matrimonial cause, such as judicial separation, nullity of marriage or restitution of conjugal rights, and irrespective of the fact whether the petition is granted or refused. The Amending Act as well the original statutes are very deficient in regards to financial relief to the parties to the marriage and children. There is no provision which empowers the court to refuse to pass a decree of divorce unless adequate provisions are made for the children of the parties. There is also no provision under which the court can make settlement of the property of parties (joint or separate) for the children or for the parties.81 We have been drawing a good deal from the English experience, but in this regard we have ignored it totally. The English Matrimonial Causes Act, 1973 deals elaborately on this matter. In fact, half of the statute is devoted to the financial relief to parties to marriage and children, and to protection, custody, etc. of children. One wonders why neither the Law Commission nor the Ministry of Law gave any thought to this very, very important aspect of matrimonial disputes.

It is submitted that neither the Law Commission nor the Ministry of Law has considered all the aspect of the matter. The Law Commission takes the pride that it submitted its report in 45 days, and the Law Minister will now take pride that it got the amending Bill through both houses of Parliament in less than three days. Although the Marriage Laws (Amendment) Act, 1976 contains some very useful reforms, yet it is a big question mark whether the people will take pride that they have an ideal matrimonial law. One very much wished that the matter was considered more deeply and widely. The fact of the matter is what we are doing in 1976 we should have done in 1954-55.

  1. See author’s work : MODERN HINDU LAW CODIFIED AND UNCODIFIED (2nd ed.), pp. 62-190 for the law before reforms, and third edition of the same work, 76-196 for the law after reforms.
  2. Section 4.
  3. Section 5. A notice of marriage has to be given to the Marriage Officer and such a notice can be given only to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
  4. Section 5.
  5. Section 2.
  6. Explanation (b) to s. 2(i).
  7. Section (2)(1)(c). See also Chapter I, MODERN HINDU LAW, CODIFIED AND UNCODIFIED (3rd ed.).
  8. Section 4, Special Marriage Act, and s. 5 Hindu Marriage Act.
  9. Section 17, Hindu Marriage Act, and s. 44, Special Marriage Act.
  10. Section 4(c).
  11. Section 5(1)(iii).
  12. Section 5(1)(vi).
  13. Section 24(1)(i).
  14. See author’s work, MODERN HINDU LAW (3rd ed.) PP. 104-105.
  15. Section 18(a).
  16. Child Marriage Restraint Act, 1929, s. 5.
  17. Section 13(2)(iv) of the amended Act.
  18. Section 5, clauses (iv) and (v), Hindu Marriage Act, 1955, and the First Schedule of the Special Marriage Act, 1954.
  19. Section 5(v). For details see author’s work, MODERN HINDU LAW, CODIFIED AND UNCODIFIED, (3rd ed.) pp. 80-100.
  20. Section 11, Hindu Marriage Act, and s. 24, Special Marriage Act.
  21. Section 24(i).
  22. Section 12(1)(b).
  23. See the amended clause (ii) of s. 5(1), Hindu Marriage Act and amended clause (b) of s. 4, Special Marriage Act.
  24. See MODERN HINDU LAW (3rd ed.) pp. 66-67.
  25. Section 7, Hindu Marriage Act, and s. 12, Special Marriage Act.
  26. See MODERN HINDU LAW (3rd ed.) pp. 81-86.
  27. Section 12.
  28. Section 19.
  29. Section 21.
  30. Section 21-A.
  31. See Paras Diwan “Divorce Law of Hindus : Contemplated Reforms and a few Suggestions” 1953 AIR J. 7-17 ; and “Hindu Law of Marriage, Divorce and Alimony” 1954 SCJ (J) 232-51.
  32. Sections 27 and 28.
  33. Section 27(1).
  34. See author’s work, MODERN HINDU LAW (3rd ed.) Chapter V, CONCEPT OF MARRIAGE AND THEORIES OF DIVORCE, pp. 61-75.
  35. Ibid., at pp. 68-70.
  36. Section 27(1).
  37. Clauses (i) and (j) of s. 27(1).
  38. Section 13.
  39. Section 10(1).
  40. See unamended s. 13.
  41. Clauses (viii) and (ix) of s. 13(1) before the amendment of 1964.
  42. Section 13(2)(ii), Hindu Marriage Act, and s. 27(2) last para ; Special Marriage Act, 1954.
  43. Section 13(2)(i).
  44. See foot-note 34.
  45. Section 23, Hindu Marriage Act, and s. 34, Special Marriage Act.
  46. Section 34(b), Special Marriage Act, and ss. 23(1), 9(b), Hindu Marriage Act, 1955.
  47. Ibid.
  48. Clauses (d) and (e) of s. 34, Special Marriage Act, 1954 and clauses (c) and (d) of s. 23(1), Hindu Marriage Act, 1955.
  49. Section 23(1)(a).
  50. See foot-note 34.
  51. Abubacker Haji v. Mamu Koya, 1971 K. L. T. 663.
  52. See author’s Paper, “The Breakdown Theory in Hindu Law’. 1969 Lawyer (J) 191-204.
  53. Breakdown ; Australia and Germany (1969) ICLQ 896.
  54. See the paper referred to in foot-note 52.
  55. See Chamanlal v. Mohinder Devi, 1968 Punj 287 ; Laxmibai v. Laxmi Chand, 1968 Bom 332 ; Raghubir v. Satyapal, 75 P. L. R. 70 ; Kanak v. Amal, 1970 Cal 328 ; Shakuntala v. Sardari Lal, 1972 P & H 29 ; Sayal v. Sayal, 1968 Punj 489 ; Someswara v. Leelavathi, 1968 Mys 274 ; Ram v. Kripa, 1975 Raj. 28. See also a learned paper the V. S. Deshpande, “Divorce under by Hindu Marriage Act: a Conflict of Principles” 1971 AIR (J) 113.
  56. Ibid.
  57. See the amended s. 13(1A), Hindu Marriage Act.
  58. See clauses (i), (ia) and (ib) of s. 13(1) as amended by the Act of 1976.
  59. See amended clause (c) of s. 27(1), Special Marriage Act, 1954.
  60. See amended clauses (f) and (h) of s. 27(1), Special Marriage Act and amended clauses (iv) and (v) of s. 13 (1), Hindu Marriage Act.
  61. See amended clause (iii) of s. 13(1), Hindu Marriage Act and amended clause (e) of s. 27(1), Special Marriage Act.
  62. Section 13(2)(iv).
  63. Section 13(2)(iii), Hindu Marriage Act and s. 27(IA)(ii), Special Marriage Act.
  64. Amended s. 14, Hindu Marriage Act and amended s. 29, Special Marriage Act.
  65. See amended s. 10, Hindu Marriage Act.
  66. Section 13-A, Hindu Marriage Act and S. 27-A Special Marriage Act.
  67. See Bhagwan v. Amar Kaur, 1962 Punj 144 ; Vira v. Kistamma, 1969 Mad 235. See also author’s work, Modern Hindu Law (3rd ed.), 124.
  68. See foot-note 66.
  69. Section 13B.
  70. Section 28.
  71. See author’s work, Modern Hindu Law (3rd ed.) pp. 70-72.
  72. Section 28.
  73. Section 13B.
  74. Section 21B, Hindu Marriage Act and s. 40B, Special Marriage Act.
  75. Section 21B(2), Hindu Marriage Act and s. 40B(2), Special Marriage Act.
  76. Section 21B(3), Hindu Marriage Act, and s. B(3), Special Marriage Act.
  77. See Law Commission Report, paras 9-17.
  78. Section 21A, Hindu Marriage Act and s. 40A, Special Marriage Act.
  79. Section 23A, Hindu Marriage Act and s. 35, Special Marriage Act.
  80. Section 23(4), Hindu Marriage Act and s. 34(4), Special Marriage Act.
  81. Section 27, Hindu Marriage Act deals only with the property presented at or about the time of marriage and which belongs to the parties jointly
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