1[16. Legitimacy of children of void and voidable marriages.(1) Notwithstanding that marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. COMMENTS :- A CHILD BORN OUT OF SEC .11- MARRIAGE - IS LEGITIMATE. WHETHER A CASE IS FILED OR NOT UNDER SEC.11.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. COMMENTS :-BEFORE PASSING DECREE UNDER SEC. 12 , A CHILD BORN /CONCEIVED - IS LEGITIMATE

Nothing contained in subsection (1) or subsection (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.] COMMENTS :- ONLY FOR THE PURPOSE OF THIS ACT THAT CHILD IS RECOGNIZED AS LEGITIMATE CHILD AND SUCH CHILD IS ENTITLED TO INHERIT ONLY TO THE PROPERTIES OF ITS PARENTS BUT NOT FOR OTHERS PROPERTY = GRAND FATHER, GRAND MOTHER ETC.,

COMMENTS

Under S.16, the children of a Hindu born out of second marriage which being wife in the lifetime of the first wife is void, are legitimate and shall be entitled to equal share with the first wife and her children of the deceased husband, including his retirement benefits. (Rameshwari Devi v. State of Bihar, AIR 2000 SC 735(739, 740).

1. Subs. by S. 11, ibid, for S. 16.

17. Punishment of bigamy.Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 or 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly. COMMENTS :-THIS SECTION GIVES A SUPPORT TO THE IPC SECTIONS.494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This Section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction,

Nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.—Whoever commits the offence defined in the last preceding Section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

COMMENTS

Where a Hindu embraces Islam and thereafter enters into a second marriage, the first marriage does not automatically gets dissolved, he would be guilty of offence under S. 17 of Hindu Marriage Act read with S. 494 of Penal Code. (Lily Thomas v. Union of India, AIR 2000 SC 1650 (1658)

18. Punishment for contravention of certain other conditions for Hindu marriage.—Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), 1[and (v)] of section 5 shall be punishable-

(a) In the case of a contravention of the condition specified in clause (iii) of Section 5, with simple imprisonment which may extend to fifteen days, or with line which may extend to one thousand rupees, or with both;

(b) In the case of a contravention of the condition specified in clause (iv) or clause (v) of Section 5, with simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees, or with both; 2[* * *] 3 [* * *]

1. Subs. by Act 2 of 1978, S. 6 and Sch. for “(v) and (vi)” (w.e.f. 1-10-1978).

2. The word “and” omitted by S. 6 and Sch., ibid. (w.e.f. 1-10-1978).

3. Clause (c) omitted by S. 6 and Sch., ibid., (w.e.f. 1-10-1978). A MINORS MARRIAGE CANNOT BE VOID ABINTIO, IT IS ONLY FINE ABLE.

CHAPTER V

JURISDICTION AND PROCEDURE

1[19. Court to which petition shall be presented.—Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-

(i) The marriage was solemnized, or

(ii) The respondent, at the time of the presentation of the petition, resides, or

(iii) The parties to the marriage last resided together, or

(iv) The petitioner is residing at the time of the presentation of the petition a case where the respondent is, at that time, residing outside the territories to which this Act extends, or 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 him if he were alive.]

1. Subs. by Act No. 68 of 1976, S. 12, for S. 19. COMMENTS :-NOW THE SENIOR CIVIL JUDGE COURTS HAVE GIVEN JURISDICTION AND ALSO FAMILY COURTS.WHERE EVER THE RESPONDENT LIVED OR WHERE THE MARRIAGE /FAMILY WAS SET UP.

20. Contents and verification of petitions.(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded 1[and, except in a petition under Section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be refer-red to as evidence. COMMENTS :-THE MODEL OF THE PETITION MAY BE LIKE THAT OF PLAINT.

1. Subs. by Act No. 68 of 1976, S. 13, for “and shall also state”.

21. Application of Act 5 of 1908.Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. COMMENTS :-IT SPECIFIES THE APPLICATION OF CIVIL PROCEDURE CODE.

1[21A. Power to transfer petitions in certain cases.(1) Where-

(a) A petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13, and --- COMMENTS :-OTHER SECTIONS ARE SAILENT.

(b) Another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same district court or in a different district court, in the same State or in it different State, the petitions shall be dealt with as specified in subsection (2). COMMENTS :-OTHER SECTIONS ARE SAILENT.

(2) In a case where subsection (1) applies, -

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; COMMENTS :- CLUBBING OF CASES.

(b) If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of subsection (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908). to transfer any suit or proceeding from the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. COMMENTS :-FOR TRANS FER FROM ONE DISTRICT TO OTHER DISTRICT OF SAME STATE, HIGH COURT IS COMPETENT. THIS SECTION IS RESEMBLE THE SEC. 10 OF CPC10. Stay of suit.— No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 24[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 24[India] established or continued by 25[the Central Government 26[***] and having like jurisdiction, or before 27[the Supreme Court].

Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in 24[India] from trying a suit founded on the same cause of action.

24. Substituted by Act No. 2 of 1951, for the words “the States”.

25. Substituted by the A.O. 1937, for the words “the G.G. in C.”

26. The words “or the Crown Representative” omitted by the A.O. 1948.

27. Substituted by the A.O. 1950, for the words “His Majesty in Council”.

21B. Special provision relating to trial and disposal of petitions under the Act.—

(1) The trial of a petition under this Act 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 to be necessary for reasons to be recorded. COMMENTS :-DAY TO DAY PROCEEDINGS LIKE THAT OF SESSION CASE.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trail within six months from the date of service of notice of appeal on the respondent. COMMENTS :-TOTAL PERIOD IS ONLY 6 MONTHS FOR COMPLETING THE CASE. BUT NOT FOLLOWING. ?

21C. Documentary evidence.Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.] COMMENTS :-NO STAMP DUTY AND PENALTY IS NEEDED, FOR MARKING AND RECEIVING ANY UNDER VALUED AGREEMENT ETC., DOCUMENTS. = ALL DOCUMENTS MAY BE RECEIVED WITHOUT HURDLE.

1. Sections 2lA, 21B & 21C Ins. by Act No.68 of l976, S. 14.

1[22. Proceedings to be in camera and may not be printed or published.—(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court. COMMENTS :- SINCE IT IS BETWEEN WIFE AND HUSBAND CAMERA PROCEEDINGS IF ASKED WILL BE PROVIDED. DOES NOT IMPOSE ANY OBLIGATION ON THE COURT TO CONDUCT EACH AND EVERY CASE IN CAMERA. BECAUSE THE WORDS "ANY MATTER IN RELATION TO SUCH PROCEEDINGS " BEFORE FILING CASE,ONE CAN TAKE INTER VIEWS ETC., ONCE THE CASE IS FILED, NO QUESTION OF PUBLICITY .

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine, which may extend to one thousand rupees.] COMMENTS :-NO T.V. OR NO NEWS PAPER EXHIBIT./PUBLISH THE COURT PROCEEDINGS. SHOWING INTERVIEWS ARE ALSO COME UNDER THIS SECTION.

1. Subs. by Act No. 68 of 1976, S. 15, for S. 22.

23. Decree in proceedings.—(1) In any proceeding under this Act, whether defendant or not, if the court is satisfied that-

(a) Any of the grounds for granting relief exists and the petitioner 1[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief, and

(b) Where the ground of the petition is the ground specified 2[***] or in clause (i) or sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

3[(bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

(c) 4[the petition (not being a petition presented under Section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) There has not been any unnecessary or improper delay in instituting the proceeding, and

(e) There is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

5[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) or sub-section (1) of Section 13.]

5[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

1. Ins. by Act 68 of 1976, S. 16.

2. Certain words omitted by S. 16, ibid.

3. Ins. by Act 68 of 1976, S. 16.

4. Subs. by S. 16, ibid., for “the petition”.

5. Ins. by Act 68 of 1976, S. 16.

1[23A. Relief for respondent in divorce and other proceedings.—In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

1. Ins. by Act No. 68 of 1976, S. 17. COMMENT :- COUNTER CLAIM PROVISION IS LIKE THAT OF CPC . AS PER SEC. 21 , CPC IS APPLICABLE [6A. Counter-claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not :

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

1. Inserted by Act No. 104 of 1976, w.e.f.. 1st February, 1977.

6B. Counter-claim to be stated.—Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

6C. Exclusion of counter-claim.—Where a defendant sets up a counterclaims arid the plaintiff contends the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

6D. Effect of discontinuance of suit.—If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim.—If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.

6F. Relief to defendant where counter claim succeeds.— Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

6G. Rules relating to written statement to apply.The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]

24. Maintenance pendente lite and expenses of proceedings.—Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

25. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 1[* * *] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant 2[the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such, party is the husband, that has had sexual intercourse, with any woman outside wedlock, 2[it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

1. The words “while the applicant remains unmarried” omitted by Act No. 68 of 1976, S. 18.

2. Subs. by Act No. 68 of 1976, S. 18, for certain words. COMMENTS :- SUBSEC.3 IS LIKE THAT OF CR.PC SEC. 127127. Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father of mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) The woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage;

(b) The woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) In the case where such sum was paid before such order, from the date on which such order was made,

(ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) The woman has obtained a divorce from her husband and that she had volun­tarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

26. Custody of children.—In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

COMMENTS

Under this section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is only the obligation of the father to maintain the child. Where both the father and the mother are employed and affluent, both to contribute proportionately for the maintenance of the child.( Padamja Sharma v. Rattan Lal Sharma, AIR 2000 SC 1398(1401)

27. Disposal of property.—In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper jointly to both the husband and the wife.

1[28. Appeals from decrees and orders.—(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction,

(2) Orders made by the court in any proceeding under this Act under Section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

28A. Enforcement of decrees and orders.—All decrees and orders made by the court in any proceeding under this Act shall be enforced ;ii the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]

1. Subs. by Sec. 19, ibid.

CHAPTER VI

SAVINGS AND REPEALS

29. Savings.—(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954, (43 of 1954) with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.

30. Repeals.—[Rep, by the Repealing and Amending Act, 1960 (58 of 1960)].

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