Alternate Relief in Divorce Proceedings

According to section 13-A of the Hindu Marriage Act, 1955 , if any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation unless:
1) the other spouse has ceased to be a Hindu by conversion to another religion
2) the other spouse has renounced the world by entering any religious order
3) the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive

Grounds for Divorce

According to section 13 of the Hindu Marriage Act, 1955 , any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either spouse, be dissolved by a decree of divorce on any of the following grounds:

1. the other spouse has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse
2. the other spouse has, after the solemnization of the marriage, treated the petitioner with cruelty
3. the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
4. the other spouse has ceased to be a Hindu by conversion to another religion
5. the other spouse has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. "Mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; and "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment
6. the other spouse has been suffering from a virulent and incurable form of leprosy
7. the other spouse has been suffering from veneral disease in a communicable form
8. the other spouse has renounced the world by entering any religious order
9. the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. "Desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on any of the following grounds:

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties
2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on any of the following grounds:

1. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner provided that in either case the other wife is alive at the time of the presentation of the petition
2. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality
3. that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards
4. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.
   

Nullity of Marriage : Voidable Marriages

According to section 12 of the Hindu Marriage Act, 1955 any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds:

(a) that the marriage has not been consummated owing to the impotency of the respondent

(b) that at the time of the marriage, either party was incapable of giving a valid consent to it in consequence of unsoundness of mind; or though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity or epilepsy

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The petition must not be presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered.

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner provided that the petitioner was at the time of the marriage ignorant of the facts alleged and that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage.

Nullity of marriage : Void marriages

According to section 11 of the Hindu Marriage Act, 1955 any marriage solemnized after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if :

1. either party has a spouse living at the time of the marriage
2. the parties are within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
3. the parties are sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two

Judicial separation

According to sections 10 and 13 of the Hindu Marriage Act, 1955 either party to a marriage may present a petition for a decree for judicial separation on any of the following grounds:

1. that the other party has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse

2. that the other partythat the other party has, after the solemnization of the marriage, treated the petitioner with cruelty

3. that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition

4. that the other party has ceased to be a Hindu by conversion to another religion has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
"Mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;
"Psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment.

5. that the other partythat the other party has been suffering from a virulent and incurable form of leprosy

6. that the other party has been suffering from venereal disease in a communicable form

7. that the other party has renounced the world by entering any religious orderhas not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive
"Desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

In addition to this, a wife alive at the time of the presentation of the petition may also present a petition on any of these grounds:

a) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality

b) that in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner

c) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 or under corresponding Section 488 of the Code of Criminal Procedure, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards

d) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.

Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.

Restitution of Conjugal rights

According to section 9 of the Hindu Marriage Act, 1955 when either spouse withdraws from the society of the other without reasonable excuse, the aggrieved party may apply to the district court for restitution of conjugal rights.

If the court is satisfied of the truth of the statements made in the petition for restitution of conjugal rights and also that there is no legal ground why the application should not be granted, it may decree restitution of conjugal rights.

The person who has withdrawn from the society of the aggrieved party must prove that he/ she had reasonable excuse to do so.

Conditions for a Valid Hindu Marriage

Various conditions are required to be satisfied for a Hindu marriage to be valid under section 5 of the Hindu Marriage Act, 1955.



This Act says that a marriage may be solemnized between any two Hindus provided that:

1. Neither party should have a spouse who is alive at the time of the marriage.

2. Neither party can be mentally unsound and therefore incapable of giving valid consent to the marriage at the time of the marriage.

3. If at the time of the marriage, either party though capable of giving a valid consent has been suffering from mental disorder which makes that party unfit for marriage and the procreation of children, the marriage will not be valid.

4. If either party has been subject to recurrent attacks of insanity or epilepsy, the marriage will not be valid.

5. The bridegroom should have completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.

6. The parties should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the them.

7. The parties should not be sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.