CHAPTER-3

HINDU WOMEN’S RIGHTS AND MATRIMONIAL LAWS

Marriage is considered to be one of the important

components of the Indian Society. According to ancient Hindu

Law, Marriage is the last of the ten sacraments and is a sacred tie,

which can never be broken. The Rig Veda and the Atharva Veda

provide a detail story of Marriage.

Marriage can be defined as union between man and women for

certain social and sometimes religious purposes. Even during the primitive

period, people had the idea of the individual ownership as regards his

weapons, implement and dress as well as their women also. Thus, there

would be some degree of permanence regarding such union between man

and woman, which would be maintained by force if necessary. Again,

indefinite sexual relation is less favourable to the welfare of the children

than any definite form of that relation. In the promiscuity, the rearing of

children has to be solely depended on maternal care. Again, under the law

of the survival of the fittest in struggle for existence, those group having

definite sexual relations have more advantage than those of indefinite

sexual relation. Thus, Marriage became a practice, formed a custom and

finally the custom passed into law.1

1 Sir Gooroodas Banerjee, The Hindu Law of Marriage and stridhana (Reproduced Ed.
2005), pp. 20,23 & 25.
 Marriage is considered one of the important components of the

Indian Society, To the Hindu, the importance of marriage is heightened by

the sanction of religion. According to the Ancient Hindu Law, Marriage is

the last of the ten sacraments and is a sacred tie, which can never be

broken. It is a well settled doctrine of the Hindu religion that one must

have a son to save him from the suffering of hell. Marriage is essential

also because all the religious ceremony and the rites are to be performed by

a Hindu in the companionship of the wife otherwise they will not bear any

fruits.2 Wives (Women) have been considered to be better halves and the

religious partnership of their husbands which mean that half part of a man

is his wife and that without being married, the personality of a man remains

imperfect.3

According to Hindu Law, marriage is a gift of the bride by the father

of the bride and accepted by the bridegroom as his wife. The religious duty

of giving away the girl in marriage by way of gift has been entrusted to the

father or her guardian in his absence. But the father at the time of choosing

the bridegroom, he also has the duty to choose the person with his good

qualities, virtues and character. The sincere fulfilment of the duty of the

father would lead him to self satisfaction and spiritual bliss. The Hindu

girls did not have much freedom to choose their bridegrooms. Boudayana,

a Smritikara, states that a maiden should be given in marriage to one who

is endowed with good qualities and who is a celibate.4

2 U.P.D Kesari and Dr.Aditya Kesari, Modem Hindu Law (7th Ed. 2009), p. 34.
3 S.Vats, Women and Society in Ancient India (1999), p. 2.
4 Yajnavalkya, p. 1-54 & 55.

48
 After marriage the husband acquires guardianship over his wife.

In the Shastra, wife is referred to by several name. The wife is not

just Patni (wife) but Dharampatni (Partner) and Ardhangini (half of her

husband). According to Vedas marriage is a union of “bones with bones,

flesh with flesh and skin with skin, the husband and wife” become as if

they were one person.5 Brihaspati says that in the scripture and in the code

of law, as well as in popular practice, a wife is declared to be half the body

of her husband, equally sharing the fruits of pure acts.6

Manu lays down:

Wife is a divine institution given by gods. One should not think that

one has obtained her by choice. To be mothers were women created and to

be fathers men, the Veda ordained that Dharma must be practised by man

together with his wife.7 The purpose of marriage, even according to

RigVeda, was to enable a man by becoming a householder, to perform

sacrifices to the god and to procreate sons. Procreation of a son was given

more importance, because it was believed that only the son could rescue

the parents from the hell called “Put”. The first and foremost inequality

between the boy and the girl crept in since the birth of the child.8

5 Shyama Charan Sarkar, Vycrvaskha Chandrika: Vol. II, quoted by Dr. Paras Diwan,
Peeyushi Dewan, Hindu Law, (First Ed.), p. 470.
6 D. Pathak, Hindu Law and its Constitutional Aspects (Fifth Ed. 1992), p. 113,
7 Manu Smriti, DC. 95, 96 quoted by Dr. Paras Diwan and Peeyushi Diwan in Hindu Law.
Op. Cit. pp. 481 & 483.
8 Ibid.

49
 The Rig Veda and the Atharva Veda provide a detail story of

marriage. According to the mantras and the rituals of the Grihya Sutras, at

the time of marriage bride - groom went to the house of the bride’s father.

With an appropriate mantra before the fire some offerings were made and

marriage obligations had also been made. After that family of the girl was

changed. That mantras were charms to keep the evil away. After the bride

the fire was carried away to a chariot to the house of the bride-groom. This

journey was called Vahatu which is also the name of the entire marriage

ceremony in the Veda. When they reached the house of the bride-groom,

they install the fire in the bride groom house as house fire (Grihyagni). The

most important of this was the magic of the mantras. It made the wife as

Grihapatni, a legitimate wife with dignity. There was not a complete absent

of carrying away of girl by capture or physical union of man and women

by attraction of mutual affection. But Vedas or even the Grihas Sutras did

not recognise such girl as patni or Grihapatni. Vedic Marriage was

essentially a spiritual union by magic mantras by which the wife became,

for all social and the religious purposes, one with her husband. She held a

dignified position.9

As Hindu Society was largely spread, the different form of marriage

had always been conducted amongst the Hindus, apart from those

recognised by custom.

9 N.C. Sen Gupta, Evolution ofAncient Indian Law, University of Calcutta Tagore Law
Lectures, 1950, pp. 82 & 83.

50
 According Smiritis, there were eight forms of marriage

1. Brahma 2. Daiva 3. Arsha 4. Prajapatya 5. Asura 6.

Gandhava, 7.Rakshasa 8. Paishacha.

The first four form of marriage i.e. Brahma, Daiva, Arsha and the

Prajapatya is essentially consisted the gift of the girl by the father to

groom were regarded “regular” or dharmya form of marriage. The

remaining four forms Asura, Gandhava, Rakshasa and Paishacha were

known as “irregular” or adharmya forms of marriage.

In Brahma form of marriage the bride-groom learned in the Veda

was invited and gifted the bride by the father. Gift indicated that gift with

water to the bridegroom. The son of such wife set free ten ancestors, ten

descendants and himself from sin. This type of marriage was called the

Brahma form because of its prevailing mostly, amongst Brahmanas. It was

recognised the best form of marriage. But this form of marriage is not

agreeable with the enlightened modem notions because of making the bride

as a subject of gift instead of being one of the contracting parties.10

Daiva form of marriage: -

This form also involved a gift of the girl. According to Yajnavalkya

in this form of marriage the bride was gifted to the family priest attending a

10 Supra Note 1, p. 79 & 80.

51
sacrifice for her father at the time when the sacrificial fee should be given.

It was believed that the fruit/result of this form of marriage was similar

with that of Brahma form of marriage. This form was also prevailing

among the Brahmanas when the performance of great sacrifices was most

common. It was known as Daiva as being the Ceremony of the Devas or

Gods.11

Arsha form of marriage :

In this form of marriage the daughter was given by father after

receiving one or two pairs of cow or bullock. The cattle was the price of

the girl.12

Prajapatya form of marriage:-

According to Manu, it was also a gift of the bride by the father with

due honour saying distinctly “May both of you perform together your civil

and religious duties. The difference between this form and Brahma form

was according to Yajnavalkya that the bridegroom being a suitor, an

applicant for the bride’s hand. In Brahma form bridegroom was voluntarily

invited by the father to accept the bride. According to Hindu notions

regarding the marriage, gift loses a portion of its merit if the gift is not

voluntarily made. Therefore, Prajapatya form was inferior to the Brahma

form.13

n Ibid. pp. 80 & 81.

12
Ibid.
13
Ibid. pp. 81 & 82.

52
 In all these four forms of marriage, gift by the father was essential

part of the marriage. These were the approved form of marriage. In contrast

with these forms of marriage, the remaining four forms are independent of

any gift by the father.

Asura form of marriage:

In this form the bride was purchased by paying a suitable

price by the bride-groom to the father and the paternal kinsmen and

to the bride herself and took her voluntarily as his bride. Manu was

against this form of marriage. According to him, father should not

receive a gratuity when he gave his daughter in marriage. It marked

a very low state of society. This form of marriage was adopted by

lower class/caste of people in Hindu Society.14

Gandharva form of Marriage:

It was love marriage and was completed by consummation with the

consent of the Bride. This form of marriage depends upon the agreement of

the contracting parties. This was formally practiced by military class of

people and the latter it was also in practice among Rajahs and the Chiefs.15

14
Ibid.
15
Ibid.

53
 Rakshasa form of Marriage:

This form was conquest of girl by force without her consent after

defeating her Kinsmen and friends in the battle field. This form shows it

could only be in practice when it was lawless stages. This form of marriage

was condemnable one.16

Paisacha form of Marriage:

According to Manu this sinful form of marriage, it was the

ravishment of girl while she was either sleeping or drunk or out of sense. It

was condemned and prohibited for ail the classes of people. This was

enumerate as a form marriage, only out of regard for the honour of the

unfortunate girl.17

This inferior form of marriage might be in practice amongst persons

who were not Aryan but adopted Arya culture and the religion. Thus such

form of marriage came to be adopted gradually in the sacred literature of

the Hindus. The original ancient Vedic form of marriage was a spiritual

union by magic mantras. The wife held a dignified position. She became

one with her husband for all social and the religious purposes. In inferior

from of marriage by capture or purchase the wife was treated as chattel of

which the husband as the owner and the master. The wife did not enjoy as

16 Ibid.
17 Ibid. pp. 79-87.

54
Patni who had the honour the dignity but a little better than dasi (maid).

After the introduction of these marriage, the woman never had a better
1 ft
status. She was treated as a useful a cow and a source of offspring.

When the bride was started to be looked upon as a chattel who can

be given by the father to priest as a fee, she could also be given for a price

e.g. for a pair of cows. Thus gradually, ceremonial marriage was also

diversified into distinct classes and also started departure from the original

Vedic form of marriage. In further stage we found revival of orthodox

Shastric law which except the Brahma form of marriage all other forms

were excluded from sacred law. But there is evidence that other form of

marriages were survived in custom in different parts of the Country.19

Age of Bride:

According to Rig Veda in ancient time the bride and bride groom

should be adult persons at the time of marriage. Though, if a girl stayed

unmarried for long it was taken as misfortune but remaining as an old maid

was not treated as committing a sin. In Rid Veda (X:85),the marriage of

Surya and Soma was clearly an adult marriage. There was betrothal before

marriage and marriage ceremony followed. With mantras offering were

made to the God to keep away evil genii. The bride and bride-groom hand

18
Ibid.
19
Ibid.

55
in hand prayed for common life, long life, progeny, prosperity etc. It shows

that it will be completely inconsistent with pre-pubertal marriage of girls.

In all the Grihya Sutras generally indicated that marriage was to be

consummated on the fourth night after marriage and if the girl was in her

monthly course then, consummation was to be postponed for three days

thereafter.20

In course of time, customs of early marriage grew up. It might be

because of many reasons. Parents of bride wanted to prevent their

daughters from undesirable consequences of growing up marriage. Where

taking the bride price was a custom, the parents might wants to prevent

from cheating the bride price by running away their daughter with a lover.

Whatever the reasons, this development grew up in societies where the

ownership of children by the father was established and girls became to be

i

taken as chattels.

In ancient Vedic India wife was addressed with respect by her

husband and she had voice in family affairs. At the same time, She also

respected her husband. But in course of time this status of wives had a

radical change. It might be because of the adoption of such forms of

marriages like by capture, sale, etc as well as early marriage. At that time

their status was a little better than a slave. It started comparing them with

20 Dr. Anjani Kant, Women and Law, (2003), pp. 28 & 29.
21 Supra Note 7, pp. 100 & 101.

56
cows. The husbands exercised an amount of dominion over the wives. The

only duty of wives was to produce sons. One of the system of that time was

that a sonless man use his wife to get a son by another person not only after

the death of her husband, but also during the life time of husband. It was

the darkest days of woman.22

With regards to the widows there was no provision for widow

remarriage in ancient Vedic India. Marriage was looked upon as union in

this life and hereafter. Most of the Smritikars generally prohibited widow

remarriage. However, number of instances are cited about widows

remarrying. Ordinarily these marriages were regarded as Gandharva

marriages, which was one of the unapproved forms of marriage. There was

no prohibition for a widower in remarrying. This was another instance of

'yn
inequality embedded through Sastras. According to Manu, the sacred text

did not allow remarriage of widows, and it is condemned by the learned as

fit for animals. He also stated that a maiden could be given only once. He

did not allow a widow even to mention the name of another man in

connection with marriage. The ideal laid down for a wife was even her

self-immolation as a Sati. Manu contemplates the case of a woman who,

abandoned by her husband, or as a widow of her own accord, marries a

second husband, in which case the son bom of such marriage was called a

22 Ibid.
23 tu:,4

57
“The Offspring of Lust”. But he in some way allowed the virgin widow to

remarry.24 The life of widow was in the state of rigorous subjugation and

the extreme austerity. It promoted to self-immolation of widows on the

funeral pyre of her husband. Later on this practice was known as Sati.

There was no provision for Sati in the Vedas; this practice was encouraged

by those persons who were entitled to inherit to the deceased. It was more

frequent in Bengal where widows were entitled to inheritance under law of

inheritance.25

But the British period saw the period of renaissance. The British

people very cautiously brought substantial changes in personal laws of

Hindu. It was done in a piecemeal manner. The English people encouraged

women to pursue academic pursuits of life. In the arena of marriage, Hindu

Widow’s Remarriage Act, 1856 was passed. The Act was mainly to

remove all legal obstacles to the marriage of Hindu widows. British rulers

also made law for the abolition of evil practice of Sati in 1829. By passing

the Child Marriage Restraint Act, 1929, the minimum age of marriage was

raised to fourteen for the girls and eighteen for boy’s. Punishments were

also provided.

24 R.K. Moorkerjpi, Chandragupta Maurya and His times, Madras University, Sir
William Meyer Lectures (1940-41), (Ed. 1966, Reprint 1988), pp. 161-63.
25 Ibid.

58
 After considering the ritual of marriage in the various Grihyasutras,

there was no provision for polygamy. The bride and the bride-groom had to

perform a sacrifice after lighting the Grihya Fire. There was no provision

for several wives for performing Grihya sacrifice. It might be from the days

of degradation of woman status polygamy became recognised institution

by customary law everywhere in India. Polygamy mainly committed

especially amongst the Kings and the Chief. But the effect of polygamy

was not a divorce for a first wife, she would continue to remain as a wife.

She had to be maintained properly. She was the Patni or the Grihya Patni

even though the husband might have other wives and the concubines. One

of the reasons for polygamous marriage was to get male issues which were

the main object of Hindu marriage. But such marriage was not treated as

legal and sacrificial marriage. Monogamous marriage was the only lawful

marriage.26

Polyandry:

Under the provision of the Hindu Law, marriage is regarded as

sacrament and an indissoluble union. But a man may have a plurality of

wives, it forbids the second marriage of a woman even after the death of

her first husband. According to Manu, “the holy nuptial texts are applied

solely to virgins, not to the girls who have lost their virginity; since those

26 Ibid.

• 59
women are in general excluded from religious ceremonies. Their husbands

are to be avoided with great care; their children should not be admitted to

social meetings; neither they nor their daughter are to be taken in

marriage.”27 Thus in Hindu society divorce and re-marriage of wife was

unknown even though it was permitted by custom on among the inferior

classes.

But in the late Smritis like Narada and other later Smritis, the right

to re-marriage of wife was provided under certain circumstances such as (i)

after the husband’s death, (ii) if he was impotent; (iii) stayed away too long
*}Q

without providing for the wife etc.

Thus, the status of Hindu woman under old ancient Hindu legal

system was far from satisfactory. The old ancient Hindu law and the

customs which were made by male had taken a good care to assign woman

an inferior status in the family and the society. It had reached a maximum

degree of deterioration when the practices of child marriage, Sati, the ill-

treatment to widows, polygamy and denial of education to women had

been prescribed by the society. A Hindu woman once married remained

wedded to the husband in a tie not dissolved even by the death of her

husband. But husband was free from this disability even during the life

time of the wife.

27 Quoted in Supra Note 1, p. 188.

28 Quoted in Supra Note 2, p. 47.

60
 After passing Hindu Marriage Act, 1955 :

After the World War II and with the event of the Indian

independence, the Indian Parliament took up the problem of codifying

Hindu Law. Even though, marriage bill was strongly opposed by the Hindu

orthodoxy, Hindu Marriage Act, 1955 was passed. Hindu marriage Act,

1955 makes monogamy the rule both for men and women. The evil custom

of polygamy was given a mortal blow. Divorce is permissible to both

hu'sband and wife under certain conditions. This legislation has improved

the legal status of Hindu women. It has made path for women leading to

equality of status.

Hindu marriage which was considered to be a religious duty,

a sacrament has under gone a change. It is more a result of mutual

consent than sacramental. No doubt that the enactment, which was

supposed to bring a new era in the field of personal laws applicable

to Hindus, has become a code in itself, but all the purposes for

which this act was brought in could not be achieved due to various

reasons. Section 5(ii) & (iii) of the Act says-at the time of the

marriage, neither party...

(ii)

(a) is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or

61
 (b) though capable of giving 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

(c) has been subject to recurrent attacks of insanity;

(iii) The bride-groom completed the age of 21 years and

the bride, the age of 18 years at the time of the

marriage.

Monogamy:-

The Hindu Marriage of 1955 was based on a concept of equality

where the spouses were deemed equal and has equal rights and the

obligations towards each other. Section 5(i) introduces monogamy which is

essentially the voluntary union for life of one man with one woman to the

exclusion of all others. Monogamy means that one is permitted to have one

wife or husband at one time. Before this Act came into force polygamy was

permitted. Before 1955 under ancient Hindu Law Polyandry was

prohibited. Except in the Gandharva form of marriage, the consent of the

bride was not necessary. In spite of the fact that the marriage took place

without the consent or against her will the Hindu women always respected

the marriage as sacrament and her husband as God (Pati Parameswara). So,

she could only obey him, she could follow him, never expressed her

62
opinion either to him or to the society. If the husband took another wife,

the Hindu wife never complained against it. It was not uncommon for a

Hindu male to marry as many times as he wished. He was envied by his

friends, but was never looked down. The woman was taught from the

childhood to follow the husband, father and son in whosoever’s custody

she was. A woman was supposed to leave the husband’s house only once

that is after her death, but not otherwise. It may be the reason for not

having any express provision or authority for strict rule of monogamy

among the Hindus. With the changing of time equality is conferred on both

husband and wife. Now, therefore, the mutual obligation of the spouses

will have to be ascertained from the statute. Section 5(1) of Hindu Marriage

Act, 1955 prohibits bigamy, Section 11 makes a bigamous marriage void

and Section 17 makes it a penal offence under section 494 and 495 of

Indian Penal Code (45 of 1860). In Smt. Santosh Kumari Vs Surjeet

Singh29, the wife prayed that her lawfully wedded husband be allowed to

take second wife on account of her ill-health, she could not satisfy the

sexual desire of her husband and had failed to provide male child. But she

also prayed that she would continue to be his legally wedded wife and her

husband maintain her daughter (from her husband). He should also perform

the marriage of the daughter. The trial court passed a declaratory decree to

that effect. But the Himachal Pradesh High Court quashed the decree.

29 AIR 1979 SC 713.

63
 Though the bigamy is a matrimonial wrong under section 5 (I) and

the 17 of Hindu Marriage Act, 1955 and it is also an offence under the

provisions of Indian Penal Code, 1860, it has to be proved which is not an

easy task. The wife has to provide all the proof of compliance of essential

marriage ceremonies. Performance of certain Shastric ceremonies is still

necessary for a valid Hindu marriage. One of the indispensable ceremony

to be performed in Hindu marriage is the Saptapadi. Near the

vivahamandap the bridegroom leads the bride for seven steps in the north­

eastern direction while reciting certain hymns. The bridegroom and the

bride make certain prayers and also make vows i.e.

“Give thy heart to my religious duties may thy mind follow mine.

Be thou consentient to my speech. May Brihaspati unite thee unto me”.30

These vows imply marriage to be an exclusive union. It implied

monogamy. But in course of time, the observance of these marriage vows

became only for the wife. The marriage became monogamous and a

sacrament only for her. But the Shastric Ceremonies and rites are still

necessary. Section 7 of the Hindu Marriage Act, 1955 says that (i) A Hindu

marriage may be solemnised in accordance with the customary rites and

ceremonies of either party thereto; (ii) Where such rites and ceremonies

include the Saptapadi (that is, taking of seven steps by the bridegroom and

the bride jointly before the Sacred fire), the marriage becomes complete

and binding when the seventh step is taken.

30 Dr. Parasdiwan and Peeyushi Diwan, Modem Hindu Law Codified and Uncodified
(9th Ed. 1993), pp. 87 & 88.

64
 The performance of necessary ceremonies is a vital question in

bigamy case. In Dr. N.A. Mukerji Vs State31 - a physician was prosecuted

for bigamy. It was alleged that their ceremonies of marriage at three

different times were performed; one was the moon ceremony, second was

of exchange of garlands in the Kali Temple after walking seven steps, and

the third ceremony was performed before the Guru Granth Sahib, since the

woman was Sikh. The court held that performance of such mock

ceremonies of marriage does not constitute valid ceremonies, and therefore,

the prosecution for bigamy failed.

If the marriage is not a valid marriage, it is no marriage in the eyes

of law. If the marriage is not a valid one according to the law applicable to

the parties, no question of its being void by reason of its taking place

during the life time of the husband or wife of the person marrying arises.

Having regard to Section 17 of the Act, the essential ceremonies set out

under the Act had not been conducted and merely because there was

distribution of sugar or gur it would not constitute a valid marriage.32

Under the Hindu Marriage Act, 1955 parties are free to solemnize

their marriage by customary rites and ceremonies prevalent on either side.

But it is essential that such ceremonies and rites must be proved to be

ancient, continuous and definite and that should have been recognized

31 AIR1969 AI1.489
32 Suijit Kaur Vs Garja Singh, AIR 1995 Sc 135.

65
either in the community of the bride or bridegroom. If Saptapadi and

invocation before the sacred fire are made, the marriage is validly

solemnized under the Shastric Law.33 Sometimes the court construed the

word “solemnized” in a strict manner. In Joyita Saha Vs Rajesh Kumar

Pandey34, the priest had stated that the respondent bridegroom with the

appellant wife, both the parties sat together and ‘homa’ was performed.

However, the ceremonies were neither performed strictly according to

Hindu rites or customs nor were ceremonies of ‘Sapatapadi’ and Kanyadan

performed. Further, according to the priest, on the advice of the respondent

the entire ceremony was rushed through and completed within 45 minutes,

whereas, normally it would have taken over two hours on these facts the

Calcutta High Court held that no marriage was solemnized according to

Hindu rites and customs.

or

In Gopal Lai Vs State of Rajasthan, Supreme Court held that

where a spouse contracts a second marriage while the first marriage is still

subsisting, the spouse would be guilty of bigamy under section 494, Indian

Penal Code if it is proved that the second marriage was a valid one in the

sense that the necessary ceremonies required by law or by custom have

been actually performed. The voidness of the Marriage under Section 17 of

the Hindu Marriage Act is in fact one of the essential ingredients of Section

33 Chakki Vs Ayyappan, AIR 1989 Ker. 89.

34 AIR 2000 Cal. 109.
35 AIR1979SC713.

66
494 I.P.C. because the second marriage will become void only because of

the provision of Section 17 of the Hindu Marriage Act. What Section 17 of

the Hindu Marriage Act contemplates is that the second marriage much be

according to the ceremonies required by law. If the bigamous marriage is

performed secretly and stealthily without strictly observing all the

ceremonies makes it more difficult to prove even though the husband

commits bigamy. In Priya Vs Suresh , it was held by the Apex Court that

the second marriage cannot be taken to be proved by the mere admission of

the parties, essential ceremonies and rites must be proved to have taken

place.

07

In S. Nagalingam Vs Sevagami , the appellant married respondent

alleged that the appellant started ill-treating her and on many occasions she

was physically tortured. As a result of ill-treatment and severe torture

inflicted she left her marital home and started staying with her parents

while so, the respondent came to know that the appellant entered into

another marriage. Admittedly, the marriage of the appellant with the

respondent was subsisting at the time of the alleged second marriage. The

Metropolitan Magistrate held that an important ceremony, namely,

“Saptapadi” had not been performed and therefore, the second marriage

was not valid and no offence was committed by the appellant. But Supreme

36 1971 (l)SCC 864.

37 AIR 2001 S.C. 3576.

67
Court held that there was a valid second marriage and the appellant was

guilty of the offence of bigamy. Section 7 applies to any marriage between

two Hindus solemnized in the presence of relatives, friends or other

persons. Any of the ceremonies, namely garlanding each other or putting a

ring upon any finger of the other or tying a thali would be sufficient to

complete a valid marriage. As per evidence in this case, it clearly shows

that there was a valid marriage in accordance with the provisions of

Section 7 of the Hindu Marriage Act. It was deposed that the bridegroom

brought the “Thirumangalam” and tied it around the neck of the bride and

thereafter the bride and the bridegroom exchanged garlands three times and

the father of the bride stated that he was giving his daughter to

“Kanniyathan” on behalf of and in the witness of “Agnidevi” and the father

of the bridegroom received and accepted the “Kanniyathan”. “Saptapadi”

was held to be an essential ceremony marriage applicable to them that was

an essential ceremony. Therefore, it was proved that the appellant had

committed the offence of bigamy as it was done during the subsistence of

his earlier marriage.

The Hindu marriage under the Act is a ceremonial marriage to be

solemnized according to the customary rites and the ceremonies of one of

the two parties. The absence of essential ceremony rites and the ceremonies

would amount to failure of ceremonial marriage or solemnization of

68
marriage. Above the requirement solemnization of ceremonial marriage,

there must be no incapacity in the parties to marry one another arising from

the prohibited degrees of relationship or sapinda relationship except where

there is customs or usages governing both the parties dispensing with the
Oft

bar arising from the prohibited degree of relationship and Sapindaship.

Hindu marriage Act permits only monogamous marriage but in the absence

of fulfilment of above conditions, a Hindu male can marry another woman

legally. In the Hindu Society it is happen very rarely that a Hindu female

marrying with another male even her first marriage is not a valid marriage

under the provisions of the Hindu Marriage Act, 1955. Polyandry had been

prohibited by customs and the old Hindu law long before the passing of

Hindu Marriage Act, 1955. Even though monogamy has been introduced

by the provisions of Hindu Marriage Act, 1955, in practice Hindu women

are still suffering from bigamous marriage without full curable remedy.

Matrimonial Relief under Hindu Marriage Act,1955 :

In the olden days Hindu women always respected the marriage as

sacrament and her husband as god. She could only obey him ,she could

follow him, never expressed her opinion either to him or to the society.

When the husband took another wife, the Hindu wife never complained

against him. Hindu women was taught from the childhood to follow the

38 Sunderlal T. Desai (Ed.), Mulla Principles ofHindu Law (16th Ed. 1994)., pp. 610 & 611.

69
father, husband and son in whosoever custody she was. Because of all

these reasons Dharmashastras did not contain any provision like restitution

of conjugal rights and divorce. Though there was no conjugal relationship,

the Hindu wife and husband had to live under one roof till death. It was

taken as the fault of the wife if she could not bear him a son. So had to take

another wife.

The wife was not authorized to do religious acts independently of

her husband or without his consent. Manu ordains that there is no separate

yajna for women (independently of the husband) nor vrata(vows) nor fasts

(without his consent). Similarly Katyayana propounds a sweeping rule that

whatever a woman does to secure spiritual benefit after death without the

consent of her father (when she is unmarried) or her husband or her son,

becomes fruitless for the purpose intended. As the foremost duty of the

wife was to honour and serve the husband, she must always stay with him

and she had a right of residence in the house. A wife was further entitled to

be maintained in the house by the husband. Narada does not allow the

husband or wife to lodge a complaint against one another with their

relations or with the king. Though a judicial proceeding between husband

and wife as plaintiff defendant before the king is forbidden, still, if the king

comes to know personally or indirectly of wrong done by the one to the

other, the king must bring round the husband or the wife to the path of duty

by appropriate punishment, otherwise the king incurs sin. There were

70
certain matters of which the king could take cognizance without the

complaint of anybody: they were called aparadhas among which were

included the murder of a woman adultery, pregnancy of a widow from

■2Q

some person other than the husband, abortion.

Divorce was unthinkable in the Smritis. According to Manu, the

marital union can be released neither by sale nor by other way, as he says

let mutual fidelity continue till death since it is the highest dharma.40

However Kautilya allowed divorce under certain circumstances. According

to him if the marriage was entered in the Brahma, Praja Patya, Arshaand

Daiva forms, it cannot be dissolved but if the marriage was entered in

Gandharva, Asura and Rakhasa forms then it may be dissolved by mutual

consent of the marrying parties in case where both hate each other.41

As a matter of fact there has been gradual erosion of sacramental

character of Hindu marriage since 1955.When the Hindu Marriage Act

1955 was passed, it was kept in view that if circumstances exist which

show that conjugal life has become impossible either by reason of

matrimonial offence or by reason of disease, other specified circumstances

then reality must be recognized and provisions should be made for

terminating the bond of marriage.

39 Simmi Jain, Encyclopedia of Indian Women through the Ages, Vol. 1(2003), pp. 82, 87, 90 &
91.
40 Manu lx.46and 101 referred by Paras Diwan, Law ofMarriage and Divorce inlndia, quoted by
Naseem Akhtar in Family Law on Divorce and Judicial Separation, (2003), p. 8.
41 Kautilya Arthashastras,III cited by Rajkuraari Agarwala, Matrimonial Remedies under Hindu
Law quoted in Ibid. pp. 8 & 9.

71
 For the first time, Hindu Marriage Act, 1955 has made changes by

providing specific matrimonial remedies to Hindu women. The Act

provides following types of Matrimonial reliefs:-

1. Restitution of Conjugal Rights.

2. Judicial Separation

3. Divorce

Restitution of Conjugal Right

Even before the passing of the Hindu Marriage Act 1955, Courts in

India passed decrees for restitution of the Conjugal Right. Even question

had been arisen whether Court had jurisdiction in the cases of such types.

The concept of such type of relief was borrowed from English Law. It

originated in the religious courts of England. Such court could issue a

decree of “restitution of conjugal rights”. If the unwilling spouse disobeyed

the order of the court, the spouse was punished. But this provision was

repealed in 1970.During the British period the provision of restitution of

conjugal right was introduced into Indian Law.42 The fundamental rule of

this right is that one spouse is entitled to the society and the comfort of the

other spouse and where either spouse has abandoned or withdrawn from

the society of the other without reasonable excuse or cause the Court

42 M J.Antony, Women '$ Right-Everything an Indian women must know about her right in plain
language, (1985), p. 62.

72
should grant a decree for restitution of conjugal right. It also can be a

ground for divorce.43 Under this provision a spouse who wants to save

marriage from disruption can sincerely approach the Court for restitution of

Conjugal rights. A petition may be made to the District Court for the

purpose. If the court is satisfied of the truth of the statement made in the

petition it may grant a decree for restitution of conjugal rights. The

Explanation attached to the Section 9 clarifies that when the question as to

the existence of a reasonable excuse for withdrawal from the other person’s

society arises, the burden of proof to prove the same shall be on the person

who has withdrawn from the society. The expression ‘conjugal rights’

connotes two ideas (i) right of the couple to have each other’s society and

(2) the right to marital intercourse. The law expects every husband and

wife not to withdraw from the society of the other i.e. living together and

part company only occasionally or to live apart and meet occasionally, of

course not due to dispute or discord but by mutual understanding according

to their need. Withdrawn from the society of the other without reasonable

excuse means drawing back or departed from this style of living together.44

Withdrawal from the society of the petitioner means cessation of

cohabitation by a voluntary act of the respondent. Where the husband

dumped his wife at her father’s house and thereafter totally neglected her, it

43 Ibid. p. 641.
44 B.M.Gandhi, Hindu Law (2nd Ed. 2003), pp. 231 & 232.

73
was held that husband had withdrawn from the society. Cohabitation

means living together as husband and wife in the circumstances as they

exist. If the parties are forced to live separately because of the requirement

of their employment but meet together whenever circumstances permit,

they are cohabiting. In such situation the matrimonial home is at two

places, the place where husband is living and the wife is living.45

The question of constitutionality of Section 9 arose in T. Sareetha

Vs T. Venkata Subbaiah46 The question was whether the remedy of

Restitution of Conjugal Right violates the right of privacy guaranteed by

the Article 21 of the Constitution. In this case the husband had applied for

a decree of restitution of conjugal rights. The Andhra Pradesh High Court

observed that “ a decree for restitution of conjugal rights constituted the

grossest form of violation of individual’s right to privacy. It denies the

woman her free choice whether, when and the how she is to become the

vehicle for the procreation of another human being. A decree of restitution

of conjugal rights deprives a woman of control over her choice as to when

by whom the various parts of her body is to be sensed. The provision of

Section 9 is therefore unconstitutional being not only against Article 21 but

also being violation of Article 14 of the constitution. Though theoretically

the remedy is available to both the parties, in practice it is resorted almost

exclusively by the husband against the wife.

45 Dr.Paras Diwan, Family Law, (4th ED.1998), pp. 116 & 117.
46 AIR1983 AP 356.

74
 But the Delhi High Court in Smt. Harvinder Kaur Vs Harmander

Singh 47has observed that Section 9 has not violation of Article 14 and 21

of the constitution. The object of restitution decree was to bring about

cohabitation between estranged parties so that they could live together in

the matrimonial home in amity. The leading idea of Section 9 was to

preserve the marriage. It did not enforce sexual intercourse. It was

fallacious to hold that the restitution of conjugal right constituted the

starkest form of governmental invasion of marital privacy.

However, above views were considered by Supreme Court in Saroj

AO

Rani Vs Sudarshan Kumar and it has been held that conjugal rights are

not mere creatures of the statute. Such a right is inherent in the very

institution of marriage itself. The court holding that in privacy of home and

married life, neither Article 21 nor Article 14 of the Constitution has any

room. The Court observed that there are sufficient safeguard in section 9 to

prevent it from being tyranny. So the only sanction decree for the

restitution of conjugal right is by attachment of property against

disobedience of a decree for restitution of conjugal rights where the

disobedience follows as result of wilful conduct. It can not be said the

section is violative of Articles 14 and 21 of the constitution of India, if the

purpose of the decree for restitution of conjugal rights is understood in its

proper perspective and if the method of its execution in case of

disobedience is kept in view.

47 AIR1984 Delhi 66.

48 AIR 1984 SC 1562.

75
 From the time immemorial, Hindu society in India very much

inclined to justify and uphold that wife should serve her husband like a

slave. After marriage she is transferred to the family of her husband and all

rights including her surname has to change to identify her in the new

family. Indian Hindu society also teaches and compels the woman to

believe that pious duty is to perform the role of house wife after duly

married and do whatever her husband wants. Even though the restitution of

conjugal right is available to both husband and wife but most of the time,

husbands try to use this provision for their benefit and to use their wives in

whatever way they want. In a series of husband petitions for restitution of

conjugal right, our High Courts have held that the wife’s refusal to resign

her job at the instance of the husband had amounted to ‘withdrawal from

his society’. The question of withdrawal from the society has come in an

interesting maimer in several cases in the situation where both spouses

were employed were living at two difference places. In Surinder Vs

Gurdeep49, the husband and wife made arrangement that whenever possible

either on holiday or by taking leave they visited and live together for as

long as was possible either at the husband’s place or at wife’s place, and in

this way they continue to live together. But when for some reasons and

some misunderstanding relationship soured, the husband asked the wife to

resign or give up her job and join him at his place. On wife’s refusal to

49 AIR1973 P&H 134.

76
obey him he filed a petition for restitution of conjugal right alleged that she

had withdrawn from his society. The Court passed the decree in favour of

husband holding that the wife much join him there otherwise it would be

deemed that she has withdrawn from the society of her husband.

But in Pravinden Vs Sureshbhai50 Gujarat High Court express a

different view and held that mere refusal to resign the job will not amount

to withdrawal from the society.

It is true that married life means joint living of the parties to

the marriage for mutual happiness. But with education and high

literacy of woman and with recognition of equal right to woman in

the Constitution and abolition sex distinction in all walks of life it

is quiet necessary to change this orthodox concept of wife as Dashi

and expectation from her to subject herself to husband’s wishes.

Otherwise all the rights will be useless which are made available to

woman for development and benefit. It will only be a weapon to

destroy the institution of marriage which is the very foundation of

civil society.

Sometimes the restitution of conjugal rights is also tried to be used

as a means to escape from liabilities and responsibilities. But courts have

50 AIR1975 Guj. 69.

77
stopped in time. In Dharmishthaben Vs Hasmukhbhai51 a husband filed for

restitution of conjugal right as a counter blast to wife’s application for

maintenance and obtained the decree. His behaviour, however, was bad and

he disallowed his wife to enter the house. It was held that the restitution

case was filed with ulterior motive to avoid liability to pay maintenance

and that the husband could not escape liability to maintain her. A decree of

restitution of conjugal rights obtained by a husband cannot help him in

denying maintenance to the wife.

Similarly in Snrjeet Singh Vs Rajendra Kaur 52 it was held that a

maintenance application of the wife could not be rejected merely on the

ground that the husband had obtained a decree for restitution of conjugal

rights.

Prevailing attitude of male dominated Indian Hindu Society which

has been deep rooted since time immemorial is quite necessary to be

examined at the time of making laws. Many rights may be conferred and

many provisions may be made for keeping equal status and development of

Indian women but because of old culture most of the Hindu women even in

this modem time are reluctant to enjoy these rights. Instead, men have been

trying to use these provisions like restitution of conjugal rights for their

benefit and free from liabilities. It is, therefore, necessary to make such

provisions not to be used in wrong way.

51 1990 CrLLJ 2132 (Guj.).

52 1990 Cri.LJ NOC 137 (All.).

78
Judicial Separation and Divorce:

Marriage in the Shastras was viewed as a sacrament. The

relationship of husband and wife, once established through proper customs

and rituals, was believed to be irrevocable. The wife could not cut herself

off even in case the husband died for she could live as a part of the family

that was still alive and not dead with the husband. “Let man and woman,

united in a marriage, constantly exert themselves that they may not be

disunited and may not violate their mutual fidelity.”53

“A man, who always remains united with his wife and children, is

the ideal person. Husband is declared to be one with his wife. Neither by

sale nor by repudiation is a wife released from her husband.”54

Manu went so far that a marriage entered even by force or fraud is

indissoluble.55

Naturally, a question of dissolution of Hindu marriage cannot arise.

There was no evidence of prevalence of divorce during the Muslim period

and British period among the Hindus in India. The reasons for this were

that British Courts in India accepted the authority of Manu who was

against the practice of divorce. Social conditions of that time were also not

53 Justice M.Rama Jois, Ancient Indian Law Eternal Value in Manu Smriti, (Reprint Ed. 2004),
p.40.
54 Ibid.
35 Naseen Akhtar, Family Law on Divorce & Judicial Separation, (2003), p.10.

79
acceptable to such practice. And another reason was that Hindu Pandits in

the early British court did not support such practice. The history of origin

of divorce in India can be traced from the British Indian courts just before

the Indian independence.56

However, such Hindu notions regarding the divorce did not mean

that the need of divorce was not realised. Customary form of divorce was

prevailing among the lower classes and castes. Customary mode of divorce

was very simple, very few formalities were needed and was purely private

act of the parties. But in some community a forum such as Panchayat or a

family council was necessary.

Judicial Separation

The remedy of judicial separation was unknown to the Shastric

Hindu Law. But the British Indian courts permitted in certain cases

maintenance to wife and also separate residence from her husband. Later

on the Hindu Married Women’s Right to Separate Maintenance and

Residence Act, 1946 gave statutory right to Hindu married woman to claim

separation and maintenance from her husband. This kind of enactment

resembled judicial separation now incorporated in SectionlO of the Hindu

Marriage Act, 1955.57

? Ibid.
37 Dr.U.P.D Kesari &Dr.Aditya Kesari, Modern Hindu Law, (Seventh Ed. 2009), p. 73.

80
 Section 10 of the Hindu Marriage Act, 1955 provides provision for

judicial separation .When under certain circumstances it becomes difficult

for one party to continue in the society of the other, law allows separation.

The decree of judicial separation does not sever or dissolve the marriage. It

is a remedy lesser than divorce. As a result of judicial separation active

marital life between the spouses is suspended. But they are not allowed to

contract another alliance. If the separated parties who live apart under the

decree of judicial separation desire to make a compromise, the court may

rescind such a decree of separation if it thinks proper. And couple may

resume their normal life without again undergoing a marriage ceremony.

The effect of an order under SectionlO the Hindu Marriage Act granting

judicial separation is to permit spouses to live apart and to afford

opportunity to reconcile.58In Narasimha Redy Vs Basamma59 the court held

that after a decree of judicial separation it is no longer obligatory on the

part of the petitioner to cohabit with the respondent; however, neither

spouse can contract another marriage until the marital bond is ended by a

decree of divorce. A marriage after a separation decree and before divorce

amounts to bigamy.'

The grounds for obtaining the decree of judicial separation are the
t

grounds enumerated in Section 13 of the Hindu Marriage Act, 1955 for

58 K.K.Kuttykanan Vs N.Malar AIR 1973 Ker. 273.

59 AIR 1976 A, p. 77.

81
seeking decree of divorce. Thus, similar grounds for seeking decree of

judicial separation and for decree of divorce are provided by the Hindu

Marriage Act.

The decree of judicial separation provides an opportunity for

reconciliation and adjustment between the husband and wife, however after

a certain period it becomes valid ground for seeking decree of divorce.60

By the Marriage Laws (Amendment) Act of 1976, Section 10 of the

Hindu Marriage Act, 1955 was radically changed and now the grounds for

both the husband and the wife are the same as the grounds for divorce.

They are adultery, cruelty, desertion, conversion, unsound mind, venereal

disease, incurable leprosy, renunciation of the world, presumption of death

and failure to comply with a decree of restitution of conjugal rights, etc.

Apart from the aforementioned grounds, a Hindu wife may invoke any of

the following grounds avail able exclusively to her viz. remarriage by

husband, husband being found guilty of rape, sodomy or bestiality, non­

resumption of co-habitation in spite of a decree for maintenance of wife

and option of puberty, i.e. at the option of the wife if her marriage was

performed before she reached the age of 15 years and she repudiates the

marriage after attaining the age of 15 years but before she reaches 18 years

60 Section 13(1 A)(i) of Hindu Marriage Act,1955.

82
of age.61However Supreme court in Darshan Prasad Vs Civil Judge II

Gorakpur62 held that when a wife merely lives separately from husband but

not obtain decree for judicial separation under Hindu Marriage Act, 1955,

she cannot be held judicially separated wife.

Divorce:

Divorce was most radical social reform. After passing Hindu

Marriage Act it is greatly changed and Hindu marriage today has assumed

more or less the nature of a contract for the mutual benefit of the parties

concerned, duly aided by different legal provisions and reforms. The issue

of divorce then came as a natural consequence. Though it has been started

to think about divorce, it is still reserved as the last resort. This led to

development of the concept that marriage could be dissolved only in those

cases where a party to the marriage violated its sanctity by his or her acts or

behaviour. When marriage came to be accepted as a contract, it was not

regarded like an ordinary contract. There is a social interest in the

preservation and protection of the institution of marriage. It was, therefore,

inevitable to consider marriage as a special contract and being a special

contract, the marriage could not be put to an end like an ordinary

contract.63 It is true, that so long as the practice of Sati and child marriage

61 Section 13(2) of Hindu Marriage Act.1955.

62 AIR1992 SC 967.
63 Dr.Paras Diwan & Peeyushi Diwan, Modem Hindu Law, (9th Ed. 1993), p. 68.

83
existed, nobody thought about the widow remarriage or divorce. Marital

incompatibilities were hardly taken into consideration, but there has been a

great change. Marriages no longer take place between children but between

adults. There is no guarantee whatsoever those marriages would be

successful, and no wonder there are so many unhappy marriages today. It

becomes the duty of our society to give a practicable solution to such

unhappy couples by making divorce possible. Instead of talking about the

glory of our ancient culture and doing nothing about it it is true indeed that

sacramental concept did provide much needed stability to the institution of

marriage. But at whose cost? It made the wife option less. Hindu Marriage

Act, 1955 emphasizes stability, but with humane option. The primary

objective of the Hindu Marriage Act 1955 is to preserve and protect a

Hindu Marriage, rather than allow it to disintegrate. Severance of marriage

is therefore to be permitted only on substantial grounds. Divorce, according

to Section 14 of the Hindu Marriage Act, will not ordinarily be granted

within one year of the marriage.64

According to section 23 (1) (a) to (c) even where a ground for

divorce is made the court will have to satisfy itself (i) that the petitioner is

not seeking to take advantage of his own wrong or disability (ii) where the

petition is founded on adultery, the petitioner has not in any manner

64 Virendra Kumar, “Uniform Civil Code Revisited: A Juridical Analysis of John Vallamatton”
J.I.L.I. Vol.45 July-December 2003, p. 332.

84
connived at or condoned the act or acts complained of (iii) that the petition

is not the result of any collusion between the spouses or its presentation is

not marked by any unnecessary or improper delay and (iv) that there is no

other legal ground against granting the relief prayed for.

The right to divorce is granted by Section 13 of the Hindu Marriage

Act 1955. The principal grounds of divorce are (1) Adultery (2) Cruelty (3)

Desertion (4) Conversion (5) Insanity or mental disorder (6) Leprosy (7)

Venereal disease (8) Renouncing the world (9) Unheard of for seven years

or more (10) no cohabitation after judicial separation (11) failure to comply

with the decree of restitution.

The additional grounds on which the wife alone could seek divorce

are (1) Bigamy (2) Rape, sodomy, bestiality (3) Maintenance decreed to

wife (4) Repudiation of marriage by wife before she is 18 years of age.

These special grounds have been incorporated by Marriage Laws

(amendment) Act 1976. Thus a Hindu wife is granted certain special

grounds against the husband which places her in a better position as

compared to a Muslim or a Christian wife.

Adultery:

A petition for divorce under section 13(1) (i) of the Hindu Marriage

Act, will lie at the instance of husband or wife if the other party has after

85
the solemnisation of the marriage committed even a single act of adultery.

Before the Amendment of 1976 it was necessary to show that the spouse

was living in adultery. Taking into consideration the fact that it is very

difficult to prove even a single act of adulteiy, the requisite changes were

made by the Amendment of 1976. The expression “had voluntary sexual

intercourse with any person other than his or her spouse” has been used

instead of “adultery”.

It seems that where a married man contracts a bigamous marriage

after the commencement of the Hindu Marriage Act, 1955, his first wife

can file a petition for divorce under this provision. The second marriage

would be void and its consummation amounts to extra-marital sex. The

word “voluntary” which was added by Amendment Act of 1976 shows that

if a person has been involved in an involuntary sexual act with a person

other than his or her spouse (whether or not it amounts to rape under the

Indian Penal Code) the later cannot ask for relief on the ground under

Section 13.65

It is very difficult to produce direct evidence to prove an act of

adultery. The act of adultery, therefore, has to be inferred by the attending

circumstances. But it must be proved beyond all reasonable doubts and the

circumstantial evidence should be such that it should lead only to one

inference i.e. the respondent has committed adultery.66

65 Dass Vs Dass, AIR 1982 MP 120.

66 Parvati Vs Shiva Ram, AIR 1989 HP. 29.

86
 In Mirapala Venkata Ramana Vs Mirapala Peddiraj67 husband filed

a divorce petition against the wife on the ground of her adultery without
i

impleading the adulterer as a part. He court held that in such case adulterer

is a necessary party and ought to have been made second respondent.

Beside this, the husband failed to establish his ground. Andhra Pradesh

High Court observed that casting aspersion against a woman that she is

unchaste woman that too a married woman with children is a very serious

thing and unless there is cogent evidence beyond any pale of doubt such a

finding should not be recorded.

There is no specific provision under the Hindu Marriage Act in

regard to joint the adulterer as a co-respondent in a suit for divorce on

ground of respondent’s adultery. However, in exercise of the powers

conferred by Section 14 and 21 of the Act, various High Courts have made

rules requiring adulterer as a necessary party.

In Arun Kumar Agarwal Vs Radha Arun and another68 Karnataka

t

High Court held that even though the Hindu Marriage (Karnataka) Rules,

1956 does not provide for adulterer to be joined as a necessary party but in

determining whether the spouse of the petitioner had voluntary sexual

intercourse with another, the court would be in a better position if the

adulterer is made as co-respondent to adjudicate upon the controversy.

67 AIR 2000, AP 328.

63 AIR 2003 Kant. 508.

87
Apart from that, even public interest and principle of natural justice require

that the person named as adulterer should have an opportunity to defend his

reputation.

In Ram Kumar Vs Raksha69 the husband filed a petition for divorce

on grounds; inter alia, of wife having illicit relations with some other

person. The name of that person was not disclosed nor was he impleaded as

party. The court held that the husband’s petition could not be allowed as

under rule 10 of the Hindu Marriage (Punjab) Rules, 1956, if a petition is

presented by the husband on ground of adultery, he is required to implead

the alleged adulterer as co-respondent. The husband’s petition was

consequently held to be not maintainable because of not joining of

necessary party.

Mere suspicion as to extra marital sex is not sufficient for granting

divorce. But that does not mean that petition on the ground of adultery is

not to be decreed for the want of direct evidence. It is generally difficult to

get direct evidence of such act as it is done in privacy. Therefore, standard

of proof of extra-marital sex in the divorce proceedings can be based on

HA

circumstantial evidence and strong probabilities corroborating each other.

f AIR 2003 P&H. 334.

Mani Shankar Vs Radha Devi AIR Raj. 33.

88
 Another important thing is that due to the mere suspicious, children

are not deprived of united parents or who have fair chances of getting

united.71 Though blood test may indicate possibilities of paternities of a

child but court cannot compel any party to submit to a blood test.

Regarding this Supreme Court has laid down following principle in

Goutam Kundu Vs State of West Bengal.

1) The courts in India cannot order blood test as a matter of

course.

2) Whenever applications are made for such prayers in order to

have roaming enquiry the prayer for blood test cannot be

entertained.

3) There must be a strong prima facie case that the husband

must establish non-access in order to dispel drive away the

presumption arising under section 112 of the Evidence Act.

4) The court must carefully examine as to what would be the

consequence of ordering the blood test; whether it will have

the effect of branding a child as bastard and the mother as an

unchaste woman.

71 R,Revathi Vs Union of India AIR 1988 SC835.

72 AIR 1993 SC2295 2301.

89
 5) No one can be compelled to give sample of blood for

analyse.

According to Section 23 (I) (b) condonation of adultery is an

absolute bar to granting relief by way of judicial separation under
section 10 or divorce under section 13.

Admission or confession of adultery is admissible, but the

court would also rely upon the circumstantial evidence to
corroborate the admission or confession and satisfy itself that there
is no collusion. If so satisfied, it is open to the court to grant
relief.73

Section 13(I)(i) says that any marriage solemnised, whether

before or after the commencement of this Act, may on a petition by
either the husband or the wife, be dissolved by a decree of divorce
on the ground that the other party has, after the solemnisation of
the marriage, had voluntary sexual intercourse with any person
other than his or her spouse. It must have been noticed that the
words “had voluntary sexual intercourse with any person other than
his or her spouse”. Where there was allegation that wife was living
in adultery against her wishes, held that since, sexual intercourse
with a person other than her spouse was not voluntary, it would be
no ground for divorce.74

73 N.C.Das Vs Chinmayee Dass AIR 1982, MP 120

74 Awadish Kumar Sinha Vs State of Bihar 2002, Cri.LJ NOC 175 (Pat).

90
 Cruelty:

Apart from rape and dowry violence there is different kind of

cruelty- physical and mental. Cruelty- which sexually leads to the

death of the young married woman. The legal concept of cruelty

and the kind or degree of cruelty which necessarily to amount to a

matrimonial offence has not been defined by any statute of the

Indian Legislature relating to a marriage and divorce. The cruelty

has not been defined anywhere, the result being that in the delicate

relationship of husband and wife, acts of cruelty are infinitely

variable and have been changing complexion with increasing

complexities of life in the background of differing cultural levels

and social norms. The legal concept of cruelty has varied from

time to time and from society to society with the change in social

and economic conditions. At one time it was thought that the

objective of matrimonial law was to punish the guilty party rather

than to protect the innocent party. The modern law takes the view

that the objective is to accord protection to the innocent party.

Regarding the concept of cruelty there are many case laws in India

as well as abroad.

75 Dr. Anju Tyagi, “Cruelty-A Ground of Divorce”, A.I.R. 2006 Journal, p. 153.

91
 Since the human nature is basically the same everywhere, the

foreign decisions on cruelty can be helpful to us. But it should not

be forgotten that in India a very large number of couples living in

the joint family has its own challenges and its peculiar problems

which may not arise elsewhere.

Cruelty itself was not a ground for relief by way of divorce

prior to the Marriage Laws (Amendment) Act of 1976. But it was

only a ground for the relief of judicial separation under Section 10.

The expression “Cruelty” has nowhere been defined in the Act. In

the statement of objects and reasons of the Amending Act of 1976,

the object was stated to be to liberalise the provisions relating to

divorce. It seems that the object was to withhold giving a definition

exclusive or inclusive which will meet every particular act or

conduct and not fail in some circumstances. Legislature, therefore,

has left to the courts to determine on the facts and circumstances of

each case whether the conduct amounts to cruelty. Cruelty in

matrimonial law may be of infinite variety. That is basically the

reason why courts have never tried to give an exclusive definition

of cruelty. Acts or conduct constituting cruelty can be so numerous

and varied that it would be impossible to fit them into any water

tight compartments. Cruelty may be subtle or brutal. It may be

92
physical or mental. Under the English Statute, Matrimonial Causes

Act, 1973 cruelty is one of the facts indicating of a breakdown of

marriage, and the wordings of the clause are such as to give cruelty

a very elastic meaning. The wordings of the clause is “The

respondent has behaved in such a way that the petitioner cannot

reasonably be expected to live with the respondent”

In Dr. N.G. Dastane Vs Mrs. S. Dastane76 the Supreme Court

critically examined the matrimonial ground of cruelty as it was

stated in the Old Section 10 (I) (b) and stated that the enquiry in

any case covered by the provision had to be whether the conduct

charged as cruelty is of such a character as to cause in the mind of

the petitioner a reasonable apprehension that it will be harmful or

injurious for the petitioner to live with the respondent. It was also

pointed out that it was not necessary, as under English law that the

cruelty must be of such a character as to cause danger to life or

limb or health, or as to give rise to a reasonable apprehension of

such a danger though, of course, harm or injury to health,

reputation, the working character or the like would be an important

consideration in determining whether the conduct of the respondent

amounts to cruelty. What was required was that the petitioner must

prove that the respondent has treated the petitioner with such

76 AIR 1975 SC 1534

93
cruelty as to cause a reasonable apprehension in the mind of the

petitioner that it will be harmful or injurious for the petitioner to

live with the respondent.

Under the Modern Hindu Law Cruelty is a ground both for

judicial separation and divorce. At one time under the English Law

intention of cruelty was an essential element of cruelty. But

subsequently it no longer remained an essential element of cruelty.

Under Hindu law also intention to be cruel is not an essential

element of cruelty. If the act or conduct is intentional, obviously it

amounts to cruelty. There cannot be a graver matrimonial offence

than to set out the act or conduct with intention to wound or

humiliate the other spouse which seriously affects mental or

physical health of the other spouse77

In P.L. Sauyal Vs Sarla 78 the wife was crazy to get the love
and affection of her husband, and with that in view she consulted a
Fakir who gave her some potion to be administered to the husband.
She administered the same to the husband which resulted in his
getting seriously ill. The husband had to be admitted to the hospital
where he remained for sometime. During the illness of her husband
she attended on him day and night. On discharge from the hospital
the husband petitioned for judicial separation on the ground of
77 Dr.Paras Diwan & Peeyushi Diwan, Modern Hindu Law, (9th Ed. 1993), pp. 142 & 43.
78 AIR 1961 Punj.125.

94
wife’s cruelty. After reviewing some leading English Cases, the
learned judge said that willful intention to injure is not an essential
element of cruelty. If conduct or act results in a reasonable
apprehension in the mind of the petitioner that it would be harmful
or injurious to live with the respondent, it is enough and the acts
and conduct complained of would amount to cruelty.

In N. Sreeacedharya Vs Vasantha the court found that the

wife abuses at her husband over most trivial matters. She not
merely abused him at home but she did so in public. He became a
laughing stock. She used to say that she wanted her husband to be
killed in some accident so that she could have his insurance money
and provident fund. All this obviously made the husband miserable
and he used to have sleepless nights and started keeping ill health
the court held that this was a clear case on mental cruelty.

False accusation of adultery or infidelity cruelty came to be

established at an early period. The husband constantly called wife a
prostitute, a woman of street. If a spouse is subjected to false
accusation of adultery, insults, abuses, humiliation false charges of
immorality, it would make married life impossible to be endured
and would make a very unhappy and miserable existence. This type
of cruelty is worst than the acts of physical cruelty.80

79 AIR1970 Mys.232
80 Krishna Vs Alok AIR 1985 Cal.431

95
 In India among Hindus most wives still live in the joint

families with its advantages and disadvantages. In such situation,

there may be cruel act or conduct of other members of the family

not of the respondent. The question is whether such act or conduct

of other family member will amount to cruelty.

In Shyam Sunder Vs Santadevi the wife, soon after the

marriage, was locked up, kept without food, ill treated by the

members of the joint family, while the husband stood there idly,

without least caring to protect his wife. The wife filed the case

under the Hindu Married Women’s Right to Separate Residence and

Maintenance Act, 1946. It was held that an intentional omission to

protect his wife from the ill-treatment of the members of the joint

family amounts to cruelty on the part of the husband. It is the

husband’s karma (duty) to protect his wife. He is pati (protector)82.

It is well established that in considering, whether acts and

conduct of respondent amount to cruelty, one should consider all

the circumstances and background of the parties while doing so,

several factors such as social stating, background, custom,

traditions, caste and community upbringing, public opinion

prevailing in the locality, etc. will have to be taken into account.

81 AIR 1962 Ori 60.

82 Supra Note.75, p. 134.

96
Merely by showing that the parties are unhappy because of the

unruly temper of a spouse or matrimonial wrangling fall

considerably short of the conduct which can amount to cruel

treatment. There may be unhappiness in a marriage and the court

cannot for that cause alone find cruelty83.Ordinary wear and tear of

married life does not amount to cruelty. Conduct amounting to

cruelty must be something more than the ordinary wear and tear of

marriage84.

In Vijay Kumar Ramchandra Bhate Vs Neela Vijoy Kumar

Bhate85 a wife filed a divorce petition against the husband on

ground of cruelty alleging incidents which caused her mental

agency affecting her health. The family court viewed these to be

normal wear and tear to matrimonial life. However, allegations

made by the husband in his written statement against her character

with enumeration of incidents and instances, and branding her as an

unchaste woman keeping illicit relations with the son of a

neighbour were held to be “grave assault on character honour,

reputation, stating as well as health of the wife”. Even though these

allegations were taken later withdrawn by amending the written

statement, the court held that the husband could not be absolved of

83 Nirmala Vs Manohar AIR 1991 Bom 259.

84 Maya Vs Brijnath AIR 1982 Del 240.
85 AIR 2003 SC 2462.

97
leveling them. The divorce decree in favour of the wife was upheld

in appeal. The court observed “The position of law in this regard

has come to be well settled and declared that levelling disgusting

accusations of unchasisty and indecent familiarity with a person

outside wedlock and allegations of extra marital relationships is a

grave assault on the character, honour, reputation, status as well as

the health of the wife”. Even though these allegations were later

withdrawn by amending the written statement, the court held that

the husband could not be absolved of leveling them. The divorce

decree in favour of the wife was upheld in appeal. The court

observed “the position of law in this regard has come to be well

settled and declared that leveling disgusting accusations of

unchastity and indecent familiarity with a person outside wedlock

and allegations of extra marital relationships is a grave assault on

the character, honour, reputation, stating as well as the health of

the wife. Such attitude to the wife would amount to worst form of

insult and cruelty sufficient by itself to substantiate cruelty in law,

warranting the claim of the wife being award.

The court further clarified that the section (on cruelty) does

not stipulate any particular period or duration to be necessary to

constitute cruelty. It is not the length nor the numerical count of

such incident nor continuous course of such conduct but “the

98
intensity, gravity and stigmatic impact of it when meted out even

once and the deleterious effect of it on the mental attitude,

necessary for maintaining a conducive matrimonial home.

Q/r

In Pushpa Vs Mukesh Kuma the wife filed a petition on

ground of cruelty alleging dowry demands, physical beating, and

torture coupled with the fact that when the husband was informed

about her delivery no one came to see them until after eight months

when the husband and his father came to enquire about the money

demanded. On refusal by her father there was a quarrel and a police

case was registered. The trial court dismissed the wife’s petition on

the ground that the wife’s sister, who was married to the husband’s

elder brother, did not support the petitioner’s case. On appeal the

court held that the elder sister’s statement could not be relied upon

as she had more stake in saving her own marriage and so could not

be expected to go against them to support the petitioner. The

petition was thus granted

This is now a well established proposition of law that

harassing a wife by a person related to her with a view to coercing

her to meet any unlawful demand, including demand for dowry,

amounts to cruelty.

86 AIR 2003 P and H 239.

99
 In Rajni Vs Subramanic87 a Division Bench of the Kerala

High Court observed that the cruelty alleged may largely depend

upon the type of life of parties are accustomed to or then economic

and social conditions, their culture and human values to which they

attach importance. Judged by standards of modern civilization in

the background of cultural heritage and the traditions of our

society, a young educated woman is not expected to endure

harassment in domestic life whether mental or physical, intentional

or unintentional. Her sentiments have to be respected, her

ambitions and aspirations taken into account, in making

adjustments and her basic needs provided, though grievances

arising from temperamental disharmony are irrelevant. If she resent

unfair or unreasonable demand for dowry and decides to keep away

from the husband on account of the persistent and dubious

approach to compel her parents to yield, the wife cannot be found

fault with.

It is true that married life means joint living of the parties to

the marriage for mutual conjugal happiness and sexual life. But

there is a revolutionary change regarding the concept of marriage

with education and high literacy in women and with the recognition

of equal rights to women in the constitution and abolition of sex

57 AIR 1990 Ker. 2-3.

100
distinction in all walks of life. The provisions of the constitution do

not permit discrimination on the ground of sex. In R. Prakash Vs

Sneh Lata88 the court expressly emphasised the concept of

complete equality of spouses. The husband had filed a divorce

petition on the ground of cruelty of the wife based on her refusal to

leave her job. The conduct and behaviour of the husband was

indicative of his indifference towards his wife and child. The court

observed that the orthodox concept of the Hindu wife is that she is

expected to be Dharampatni, Ardhangini, etc. The literal meaning

is that she has to follow the husband. This orthodox concept of wife

and expectation from her to subject herself to husband’s wishes has

undergone a revolutionary change with education, and high literacy

in women and with recognition of equal right in the constitution

and abolition of sex distinction in all walks of life. She is a partner

in marriage with equal status and equal right with the husband. The

court held that the wife’s insistence on her continuing with her

employment and refusing to leave her job was not cruelty as to

entitled the husband to a decree of divorce.

88 AIR 2001 Raj 269.

101
 Desertion:

Living together is the essence of marriage; living apart is its

negation. When one spouse leaves the other in a manner which is

not justifiable, the deserted spouse has a remedy by way of

matrimonial reliefs.

Considering the fact that the majority of Indian women do

not have a livelihood for themselves and their children, desertion

appears to be a more serious ground than adultery and cruelty. In

the case of desertion, the wife suffers more than the husband as for

her it is not only the loss of marital company but is coupled with

monetary insecurity also. It is, therefore, necessary that desertion

for a number of years should be ground of divorce. Before the 1976

Amendment, “desertion” was a ground only for judicial separation

under section 10 and not a ground for divorce. The provisions

relating to desertion found under the original version of section

10(1) have now, without any change, been transferred to section 13.

Now “desertion is ground for judicial separation as well as for

divorce. Under the Hindu Marriage Act the main provision relation

to desertion prescribed a minimum duration for which desertion

must exist in order to become a ground for relief. This duration is

“continuous period of not less than two years immediately

102
preceding the presentation of the petition. So, if a course of

conduct does amount to desertion but its duration falls short of the

prescribed period, no relief can be granted . According to

Explanation to Sub Section (I) of Section 13 the expression

“desertion means 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.

Desertion is a total repudiation of obligations of marriage.

Desertion is a withdrawal not from a place, but also from a state of

things, or desertion is not merely an act but includes conduct. A

spouse is in desertion if he runs away from the performance of his

marital obligations.

It is not necessary that the husband and wife should live

together every day in the same house. Business duties or certain

nature of jobs would separate them for some time. In such cases,

there is no desertion because there is no intention to desert the

other party. On the other hand, the man and woman may live in the

same house but far away from each other’s mind - this amounts to

desertion. Therefore even those who are living under the same roof

89 Section 13(I)(ib) The Hindu Marriage Act, 1955.

103
might have deserted each other. In matrimonial law the following

are the constituent elements of desertion90.

(1) The factum of separation, and (2) the intention to

bring cohabitation permanently to an end - animus deserdendi

(intention to desert), (3) the element of permanence which is a

prime condition requires that both these essential ingredients

should continue during the entire statutory period of two years

immediately preceding the presentation of the petition,(4)

desertion should be without any reasonable cause and without

the consent of the other party.

For the offence of desertion, abandonment of matrimonial

home should be accompanied by animus deserdendi. The moment

they co-exist, it amounts to desertion.

In the leading case Bipin Chander Vs Prabhavati91

Supreme Court of India explained, referring the Halsbury’s

Laws of England, the concept of desertion. The court held

that :

i) In every case of desertion there must co-exist the

factum of separation and animus deserdendi;

90 Mulla, Principle ofHindu Law, Sunderlal T. Desai Edition, (1990), p. 675.

91 AIR 1957 SC 176.

104
 ii) The above both elements need not commence at

the same time, one can follow the other; and

iii) The above stated elements must subsist during

the whole of the statutory duration i.e. two years

ending with the filing o the petition.

Desertion is not a withdrawal from a place but a state of

things. Ashokkumar Vs Shabram Bhatnagar ,it was a petition for

divorce by the husband on the ground of wife’s desertion. It was

established that wife was forced to leave the matrimonial home as

she was constantly and continuously harassed by the husband and

his parents with the demand of dowry. It was held that wife was not

guilty of desertion.

Willful neglect was designed to cover constructive desertion.

Willful neglect adds a new dimension to the notion of desertion, in

as much as if the offending spouse consciously neglects the other

party. Without any intention to desert, it would not amount to

desertion. Explanation to Section 13(1), Hindu Marriage Act lays

down the “desertion includes willful neglect of the petitioner by the

other party to the marriage”. Thus, it will amount to willful neglect

if a person consciously acts in a reprehensible manner in the

92 AIR 1989 Del. 121.

105
discharge of his marital obligations, or consciously fails in a

reprehensible manner in the discharge of these obligations. This

has been done considering the facts of our social life, where wives

are deliberately neglected by her husbands, they are denied

company, and they are denied sexual intercourse or are denied

maintenance. Any of these acts by itself may not amount to

desertion but these are acts of willful neglect which do cause

untold misery to the wife. It seems for this reason that parliament

specially made “willful neglect” as special type of desertion under

Hindu Law93.

In Bhavna Adwani Vs Manohar Adwani94 Madhaya Pradhesh

High Court observed that the only excuse offered by the wife not to

rejoin her husband was that she wanted the husband or some elderly

person in the family to take responsibility that she would not be ill

treated in the marital home. Such an expectation from the husband

cannot constitute a good ground or a reasonable ground for the wife

to refuse to live with her husband. In marital relationship, there is

no question of any responsibility being taken by the spouses of

each other or by the elder members of their families. In her

romantic letters sent to the husband after their long separation, she

93 Dr.Paras Dewan & Peeyushi Diwan, Modern Hindu Law, (9th Ed. 1993), p. 135.
94 AIR 1992 MP 105.

106
did not even make a passing reference of having suffered any ill-

treatment from him or his relations during her stay. The version of

the wife and her father, therefore neither appears believable not

reasonable. She can, therefore be held guilty of a willful neglect on

the discharge of her marital obligations towards the husband.

In desertion permanent abandonment or forsaking with an intention

not to return must be established. In Nitu Vs Krishan Lai95 the wife was

living away from the matrimonial home on account of strained

relationship. The husband served a registered notice through the lawyer

asking her to return. The letter contained many insinuations and abuses.

The Delhi High Court observed that it was certainly not a simple reminder

to the wife to return to the matrimonial home, but a pre-emptory call,

fought with threatening legal consequences and preceded by such

allegations which no self-respecting woman, howsoever financially humble

her parents or brothers might have been, would have pocketed, particularly

when the insinuations were patently false and mischievous. The tone and

tenor of the notice was such that no other inference could commend to any

discerning mind; but that the husband was bent upon discarding the wife,

and had deliberately worded the notice, which he served through a lawyer,

in such a manner that the wife could take no other decision but not to

return to him. The reason being that the only consequence for her would

95 AIR 1990 Del. {Annual Survey ofIndia 1990, p. 126), Vol. XXVI.

107
have been to face lifelong humiliation at the hands of a husband. In view of

this, the court held that no case of desertion was made out.

There is another interesting case. In Jagdish Mangatani Vs

Geeta96, the issue involved was whether the wife’s insistence on not

leaving her job to join her husband’s matrimonial home amounted to

desertion thereby entitling the husband too a degree of divorce on the

ground of desertion. In this case the wife was a school teacher in a

Government School in Gujarat earning about Rs. 8000/- per month and the

husband was working in Mumbai drawing a monthly salary of Rs. 1400/-

The wife left the matrimonial home in 1993 on the ground of delivery and

never returned. She insisted that unless and until the husband earns more

income and the financial insecurity is removed, she is not prepared to join

him at Mumbai. For the husband it was argued that she knew about his

salary even at the time of their marriage and in spite of this knowledge she

married him. In 1993 she left on the pretext of delivery and never returned

nor agreed to return. Thus there was factum as well as animas of desertion.

The trail court decreed divorce on ground of cruelty and desertion on wife

is appeal before the joint district judge the decree was sit aside as being

“improper and illegal”. It held if a woman gets good designation or good

job on the strength of her education and if a husband is not earning good

income and is residing at another place after the marriage, wife cannot be

compelled, according to orthodox Hindu mythology, to leave her good

96 XLIV (I) 2003 Guj Law Reporter 309.

108
service or status and to stay at the husband’s place. If a woman refuses to

be ready for divorce and if it is so acted upon, it would be an insult to the

woman’s pride and it would amount to denial of woman’s right of equality.

Hence the husband’s appeal before the High Court where the issue

involved was only as to whether the wife’s conduct amounted to desertion.

The wife’s agreement was that she did have intention to stay in the

matrimonial home but due to financing instability and increased liability

specially after the birth of the child, she could not leave her government

job and join her husband in Mumbai. According to the husband, after 1993,

there was a clear cases of factum of separation as the wife was not prepared

to come to Mumbai and he was not prepared to go to Gujarat. It was further

contended that he was not at fault since the wife was aware of his salary at

the time of marriage and there was no reason for her now to demand that

she would not join him unless the started earning more. After considering

all the facts, evidence and case law, as also vain attempts by the court to

bring about reconciliation, the court came to the conclusion that the

husband was stitched to a divorce desire. It was held that the respondent

wife’s insistence of not leaving the job and to join her matrimonial home

amounts to desertion and appellant husband is stitched for a desire of

divorce. There was no alternative but to pass the order for divorce so that

both persons can be free to have their own houses . Therefore, the marriage

is completely broken down and no useful purpose would be served by

dismissing the second appeal.

109
 Termination of Desertion - Desertion is a continuing offence. It

can be brought to an end by some act or conduct on the part of deserting

spouse Desertion comes to an end by condonation of the acts complained

of. To constitute condonation or termination two elements are necessary

namely forgiveness of each other’s acts and restoration of cohabitation

07
which does simply mean just living together.

Desertion may be brought to an end by the deserting spouse’s

genuine and bona fide offer of reconciliation. The offer must be

conciliatory and not hedged with conditions or qualification. It should not

be just to forestall or defeat the impending judicial proceedings98.

Hindu Women’s Right to Maintenance.

The persons are entitled to maintenance according to

Dharamshastras However; the liability to maintain arises out of nature of

relationship with certain category of persons and under certain

circumstances, which has got nothing to do with owning or not owning

property. 99

One of the necessary incidents of a joint Hindu family is the right of

maintenance. Karta was bound to maintain the members of the joint family

97 Mayne’s Treatise on Hindu Law, revised by Justice Alladi Kuppuswami, (14th Ed. 1996), p.
269.
98 Supra Note. 91, p. 140.
99 Dr.S.C.Tripathi & Mrs. Vibha Arora, Law relating to Woman & Children, (1st Ed. 2006), p.
173.

110
and in cases of daughters such maintenance extended only till their

marriage. The right of a wife to claim maintenance was an incident of the

status of matrimony and if the relationship of husband and wife was

established as a matter of course the wife was entitled to maintenance.

Mothers were also entitled to be maintained by their children. Even

widows were entitled to claim maintenance.100

The duty of maintaining the wife and other dependent members of

the family who are in want, is strictly enjoined by the Hindu law, and even

censurable acts, such as receiving presents from a low person, are excused

if done with a view to provide maintenance for them101.

It is also expressed by Manu, thus : “He who bestows gifts on

strangers with a view to worldly fame, while he suffers his family to live in

distress, though he has power to support them, touches his lips with honey

but swallows poison; such virtue is counterfeit” (XI,9)102.

Ordinarily the right to maintenance does not rest upon contract. The

liability, to give maintenance is one that is “created by the Hindu law in

respect of the jural relations of the Hindu family”103.

100 Dr.Mamta Rao, Law Relating to Women & Children, (1st Ed. 2005), pp. 255 & 262.
101 Manu,III,55-59;IV,251,Ix,74,99 quoted by Sir Gooroodas Baneijee in The Hidu Law of
Marriage & stridhana (Reproduced Ed. 2005), p. 151.
102 Ibid.
103 Sidiingapa Vs Sidava Kom Sidlingapa, I.L.R. 2 Bom. 628 quoted in Ibid.

Ill
 A wife forsaken without fault may, according to Yajnavalkya,

compel her husband to pay her a third part of his wealth, or if poor, to

provide maintenance for her. 104

The right to maintenance is founded on a text of Yajnavalkya, which

is adopted by the commentators of all the school.105

The ancient Hindu law has all along recognized the right of

maintenance of all members of the joint family, males as well as females,

coparceners and non-coparceners, whether they lived with the family or

whether they lived outside it. All have to be maintained out of the joint

family property. Ancient Hindu law enjoined that maintenance of certain

relations was a personal obligation. It was the obligation of son to maintain

his parents. But it was not the obligation of the daughters. It was the

obligation of the father to maintain his children; the mother had no such

obligation. The maintenance of the wife is a personal obligation of the

husband which attaches to the husband the movement he weds her. Where

a custom required that an immature wife should live with her parents, he

still had an obligation to maintain her. Where parents are maintaining her

the husband has had the obligation to recompense them. No other member

of the family, whether joint or separate, was liable to maintain her. Her

104 Colebrooke’s Digest, Bk. IV, 72 quoted in Ibid. p. 152.

105 Sir Gooroodas Banerjee, The Hindu Law ofMarriage & Strdhana (Reproduced Ed. 2005), p.
153.

112
position when he lived in the joint family was different. The family estate

was liable to pay for the maintenance of the wife of a coparcener. The

patriarchal society did not consider it to be her function to engage in the

earning of wealth106.

Hindu law givers did not deny maintenance even to an unchaste

wife, provided she continued to live with her husband; though in such a

case she was entitled to starving maintenance. . Under the ancient Hindu

law, a wife who did not live with her husband whatever be the cause, was

not entitled to maintenance.

Where the husband keeps a concubine in the house or treats her with

cruelty so as to endanger her personal safety, she is entitled to live apart

and claim separate maintenance.109 After passing the Hindu Married

Women’s Right to Separate Residence and Maintenance Act, 1946 the wife

living separate from her husband for some justifiable cause can claim

maintenance. Under Section 2 of this Act a Hindu married woman is

entitled to separate residence and maintenance from her husband on one or

more of the following grounds : (i) if he is suffering from any loathsome

disease not contracted from her; (2) if he is guilty of such cruelty towards

her as renders it unsafe or undesirable for her to live with him; (3) if he is

106 Dr.Paras Diwan & Peeyushi Diwan, Hindu Law, (1st Ed. 1995), pp.1346 &1347.
107 Parami Vs Mahadevi, ILR (1909) 34 Bom. 278 quoted in Ibid. p. 1348.
108 Supra Note. 104, p. 1348.
t09Lalla Govin Vs Dowlat 14 WR 451; Dular Kuarri Vs Dwarka Nath (1905)32 Cal. 234, 239
quoted in Mayne’s Treatise on Hindu Law & Usage, op.cit. p.l 155.

113
guilty of desertion, that is to say, of abandoning her without her consent or

against her wish; (4) if he marries again (5) if he ceases to be a Hindu by

conversion to another religion (6) if he keeps a concubine in the house or

habitually resides with a concubine and (7) for any other justifiable cause.

Her own unchastely, conversion to another religion or failure without

sufficient cause to comply with a decree of a competent court for the

restitution of conjugal rights disentitles her to separate maintenance under

this Act. no. But before passing this Act if the husband has taken another

wife without justifying reason, the wife was not still entitled to leave his

home, so long as the husband was willing to keep her in his house*111.

The widows of the members of the Hindu family were entitled to

maintenance. After passing Hindu Women’s Rights to Property Act, 1937,

the widows of deceased coparceners in a Mitakshara family became

entitled to their husband’s interest in non-agricultural property. Court held

that the widow of a deceased coparcener is still entitled to maintenance

notwithstanding her right under the Act until and unless she claims

partition. It is open to her to claim a share or maintenance which is more

favourable to her and not both.112

110 Ibid, p. 1156.

111 Ibid.
112 Sorojini Devi Vs Sri Krishna Anjaneya Subramanyam, ILR (1945) Mad. 61; Gajavalli Vs
Narayanaswamy ILR(1962) Mad. 204; Ramesh Chandra Vs Vedkumar 1951 Punj. 129 cited and
quoted in supra note 95, p. 1158.

114
 A Hindu widow was disentitled to her maintenance if she was

leading a life of unchastity. In Lakshmi chand Vs Anandi113 the judicial

committee held that the right of a Hindu widow to maintenance is

conditional upon her leading a life of chastity and she loses that right if she

becomes unchaste. But according to Bombay, Madras and Allahabad High

courts, if the Hindu widow who reformed her ways of life is entitled to

starving maintenance.

Regarding daughters, according to Hindu sages it was the father’s

obligation to maintain his legitimate daughters till her marriage and to bear

their marriage expenses. Even after the marriage of the daughter, the father

has moral obligation to maintain her, if she was not maintained by her

husband’s family. Similarly father has also the obligation to maintain his

widowed daughter114.

Regarding the illegitimate daughters our textual law is silent about

the putative father’s obligation to maintain his illegitimate daughter.115 The

Bombay High Court held that under the old Hindu law an illegitimate

daughter has no claim of maintenance against the estate of her deceased

father. 11619. But privy council held that an illegitimate daughter was as

much a member of his father’s family as on illegitimate son and therefore

117
she was entitled to maintenance.

113 (1935) 62 IA250. 255; 57 All 672 cited and quoted in Ibid.
114 Supra note 104, p. 1356.
115 Ibid. p. 1357.
116 Jaiwanti Vs Gopal Bhai, AIR 1968ILR 314.
117 Valaiappa Vs Nataraja, 58 IA 407 cited & quoted in Supra note 104, p. 1356.

115
 Maintenance under Hindu Adoptions and Maintenance Act,

1956:

Traditional Hindu law put personal liability on the Hindu to

maintain his virtuous wife, infants, children, aged and infirm parents even

they committed 100 misdeeds. This traditional law has not changed much

after 1956 i.e. after passing the Hindu Adoptions and Maintenance Act,

1956. Maintenance is a right to get necessaries which are reasonable from

another. Indirectly or directly right to maintenance is provided under

Article 21 of the Constitution of India as the right to life includes as right

to livelihood. Supreme court in Maharani Ke&ar Kunverba Saheh Vs.

C. I.T119 held that maintenance does not include only food, clothes and

residence but it varies according to the position and status of a person.

Under the Hindu adoptions and Maintenance Act, 1956, following category

of persons are entitled to claim maintenance under the Hindu Adoptions

and Maintenance Act, 1956.

1) Wife

2) Widowed daughter-in-law

3) (a) Minor Children and aged parents.

(b) Daughters

(c) Illegitimate sons and daughters

(d) Old and infirm parents

118 Dr. Hemalata Devi, Dr.B. Yuva Kumar Reddy, “Maintenance of Wife-Need for Rights Based
Approach to Development51’, Indian Bar Review, Vol. XXX(l), 2003, p. 25.
ni AIR1960 SC 1343.

116
 4) The dependents of the deceased Hindu Male. Viz.

(a) His father

(b) His mother

(c) His Widow

(d) The son, son of a predeceased son and the son

of a predeceased son of a predeceased son.

(e) His widowed daughter

(f) The widow of the son and the widow of the

predeceased son of a predeceased son.

(g) His minor illegitimate sons

(h) His unmarried illegitimate daughters.

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 is in

regard to entitlement of maintenance in the case of a wife. According to

this section it is the right of a wife whether married before or after the

commencement of the Hindu Adoptions and Maintenance Act, 1956 to be

maintained by her husband during her lifetime. This right is an incident of

status or state of matrimony. This obligation of the husband is a personal

one independent of the possession of property, ancestral or self acquired by

him120. As long as her husband is alive, the wife cannot claim to be

maintained by her relatives or by the relatives of her husband. This right

120 Jagat Krishna Vs Ajit Kumar Das, AIR 1964 Ori.75.

117
exists for the whole span of her marital life as it is one of the necessary

concomitant of marriage between them. The liability of the husband is not

affected by the fact that she is quite rich. The moral obligation of the

husband has been render into a legal obligation, as the obligation is derived

from the relationship between a Hindu male and his dependents121.

Although the Hindu wife has a right to maintenance, her husband

may try to defeat the right by alienating his property in favour of a third

party. In such cases, the wife is not helpless. Under certain circumstances;

she can follow the property in the hands of the transferee. It is in this

context that section 39. of the Transfer of Property Act, 1882 become

relevant. Section 39 of the transfer of property Act says:

“Where a third person has a right to receive maintenance or a

provision for advancement or marriage, from the profits of immovable

property and such property is transferred, the right may be enforced against

the transferee if he has notice thereof or if the transfer is gratuitous: but not

against a transferee for consideration and without notice of the right, nor

against such property in his hands.

If the provision of Section 39 is satisfied the wife can enforce her

right against a third party in whose favour the property is transferred. In

order to attract section 39 the wife would have to prove that she is entitled

121 Jidi Konda Sita Mohalaxmi Vs Bhandapu Daiva Pd. AIR1984 NOC 265.

118
to be maintained from the profit of the immovable property. Thus a Hindu

wife can follow the property in the hands of a gratuitous transferee or a

transferee with notice.122 . Under section 18 of Hindu Adoptions and

Maintenance Act every female Hindu without having filed a petition for

divorce, judicial separation could claim maintenance. The Madras High

Court in Meera Nireshwalia Vs Sukumar Nireshwalia123 . Observed that

since husband sold house to third party without knowledge of his wife and

third party dispossessed wife by detaining her in mental asylum. Hence, it

would be wilful neglect of wife by husband issuing direction by husband to

third party to get his wife evicted on this ground to live separately. It was

held that the wife would be entitled to maintenance.

According to the law of the land with regard to maintenance, there is

an obligation of the husband to maintain his wife, which does not arise by

reason of any contract express or implied but out of jural relationship of

husband and wife consequent to the performance of marriage. Such an

obligation of the husband to maintain his wife arises irrespective of the fact

whether he has or has no property, as it is considered an imperative duty

and a solemn obligation of the husband to maintain his wife .The husband

cannot be heard saying that he is unable to maintain due to financial

constraints so long as he is capable of earning. In this connection it is

122 Apama Bhat, “Hindu Women’s Right to Maintenance”, Lawyers Collective, June 1993, Vol. 8,
p. 13.
123 AIR 1994 Mad.168.

119
relevant to point out that according to sub-section (1) of section 18 of the

Hindu Adoptions and Maintenance Act, 1956, a Hindu wife is entitled to

the maintenance from her husband during her life time. She is entitled to

claim maintenance from her husband so long as she is chaste subject to the

conditions laid down in sub-section (2) of section 18 of the said Act124.

Under section 39 of the Transfer of Property Act, 1882 Hindu wife

has right to claim maintenance against a gratuitous transferee or a

transferee with notice. Now the question is whether such transferee is liable

for enhanced maintenance at a later stage. In Vedavathi Williams Vs Rama

Bai and Ors,125 .There was a charge created in favour of the wife for

existing maintenance. The property was purchased by the deendant with

the knowledge of the existing interest. The question arose, whether the

purchaser would be liable for enhanced maintenance. The court held that

the right to receive maintenance about which section 39 of the Transfer of

property Act, speaks of is not only the right to receive maintenance in the

first instance but also the right to receive enhanced maintenance which may

be claimed if there is a material change of circumstance.

A wife’s first duty to her husband is to fulfil her marital obligations

and to remain under his roof and protection. The maintenance of a wife by

her husband is a matter of personal obligation which attaches from the

124 Kirtikant D. Vadodaria Vs State of Gujarat and another, SCC 4(1996) 479.
125 AIR 1965 Mys. 265.

120
moment of marriage. The Hindu wife has no right to separate residence and

maintenance unless there is justifying cause for doing so. Section 18(2) of

the Hindu Adoptions and Maintenance Act 1956 lays down the grounds

under which a Hindu wife is entitled to live separately from her husband

without losing her right of maintenance. The following are the grounds :

(a) The husband is guilty of desertion i.e., the husband without

any reasonable justification or without her consent or against

her wishes abandons her or willfully neglects her;

(b) The husband has treated her with such cruelty as to cause a

reasonable apprehension in her mind that it will be harmful

or injurious to live with her husband.

(c) If he is suffering from a virulent form of leprosy.

(d) If he has any other wife living.

(e) If he keeps a concubine in the same house in which his wife

is living or habitually resides with a concubine elsewhere.

(f) If he has ceased to be a Hindu by conversion to another

religion.

(g) If there is any other cause justifying her living separately.

121
 “Desertion” is a ground for living separate. The Hindu Marriage Act

and the Hindu Adoptions and Maintenance Act provide different remedies

to a wife whose husband has been guilty of desertion. Under the Hindu

Marriage Act she can sue for judicial separation if the conditions laid down

in section 10(1 )(a) of the Act read with the Explanation are satisfied. She

can without resorting to that remedy choose to live separately from her

husband, who would be bound to maintain her if it is proved that he has

been guilty of desertion and the other conditions laid down in section 18(2)

(a) of the Maintenance Act are satisfied. Section 10 of the Hindu Marriage

Act and section 18 of the Hindu Adoptions and Maintenance Act are quite

distinct and one cannot be said to control the other. The former provision

deals with the matrimonial offences by either spouse which would justify

the grant of a decree for judicial separation. Section 18 provides for grant

of maintenance to wife alone. Section 18 of the Hindu Adoptions and

Maintenance Act does not amend or abrogate the provisions of the Section

10 of the Hindu Marriage Act. .

Kerala High Court in Raghvan Radha Krishnan Vs Satyabhama Jai

797
Kumar. held that where the husband is guilty of desertion, Ifis sufficient

to prove that he is living separately not that there was animus deserendi.

This provision is especially designed to help a Hindu wife. Social justice

126 SmtRohini Kumari Vs Narendra Singh AIR1972 SC459.

127 AIR 1985 Ker. 193.

122
warrants that a wife living separately, in order to claim maintenance under

section 18 of the Hindu adoptions and maintenance act, 1956 has to prove

only desertion by her husband. It is not necessary for her to prove animus

deserendi.

Supreme court in Bipin Chadra Vs Prabhavati rightly observed

that the provisions of a legislation aiming at the protection and welfare of

women who are deserted or neglected have to be constructed liberally

bearing in mind the objects sought to be achieved and the mischiefs

intended to be curbed. It we insist on the proof animus on the part of the

husband to desert his wife as a requirement proceeding to the claim for

maintenance by the Hindu wife, deserted or neglected, that would not only

run counter to the spirit and object of the provisions of a beneficent

legislation, but also would amount to retracting from the path of social

justice, which under the constitution the courts are bound to advance.

The patriarchal Hindu society did not consider it to be wife’s

function to engage in the earning wealth. Even in the modem Hindu

society also most wives are still economically dependent on their husbands

and it is the obligation of the husband to maintain his wife. Bombay High

court in Dattu Bhau Undage Vs Tarabai . held that where a decree

concerning maintenance has been passed in favour of a wife living separate

128 AIR1957 SC 176.

129 AIR 1985 Bom. 106.

123
from her husband and subsequently they restore normal cohabitation, it

would not neutralize the effect of the decree and wife’s right to

maintenance does not come to an end under the Hindu marriage Act 1955,

“cruelty” is the ground for judicial separation and divorce. It is also a

ground for a Hindu wife for living separately from her husband and to

claim maintenance. Madras High Court in Kamla Bai Vs Rathuvelu

Mudaliar.130 32 observed that cruelty to justify a wife to live apart from her

husband, can take diverse forms. Merely not providing sufficient comforts

or amenities or even not showing affection may not amount to cruelty. But

if the acts are intended to convey the impression that the wife is not wanted

and her presence is resented, that would amount to cruelty.

The general principle underlying “cruelty” has been that the guilty

spouse should be found to have been acting in such a way as to inflict any

type of injury to his spouse. This may be directly injurious to her or may

affect her. Indirectly i.e. where the husband hurts/injuries the children or

relatives of the wife, it will have the effect of injuring the wife and hence

will amount to cruelty. Cruelty may be physical or mental. The modem

view is that mental cruelty is more injurious and create in the mind of the

injured spouse reasonable apprehension that it will be harmful or not safe

130 AIR 1965 Mad. 88.

131 Trimbak Narayan Bhagwat Vs Kumudevi AIR 1957 Bom. 80.

124
 10)

to live with the other spouse. In Maharaja Nadar Vs Muthukami Ammal

. Madras High Court held that the accusation of a wife as barren woman by

her husband amounts to cruelty to her. The husband also used to ill treat

the wife and beat her and even accused her of theft. The expression cruelty

will include physical as well as mental cruelty.

1 0*5

In Gopal Vs Mithilesh 36 the husband was found guilty of

cruelty as he used to keep quite when his wife was constantly criticized and

nagged by his mother. Unusual callous behaviour or neglectful behaviour

or deliberate harassment of the spouse would amount to cruelty.

Under section 18(2) (d) the wife can live separately and claim

maintenance if the husband has any other wife living. This can be claimed

irrespective of the fact that the wife has consented to the second marriage

of the husband. Under the Hindu marriage Act, 1955, second marriage

during existence of previous wife would be void. In C.O.K. Reddy Vs

C.P. V. Lakshmana 134 the plaintiff filed a maintenance suit under Section

18. She pleaded that her husband married her after deserting his first wife.

She lived with him for twelve years but left him later on account of his ill

treatment. The trial court dismissed the suit on the ground that she was

married in October, 1955 (after coming Hindu Marriage Act, 1955 into

132 AIR 1986 Mad. 346,

133 AIR1979 All. 316.
134 AIR 1976 A.P. 43.

125
force) and, therefore, the marriage is void and the plaintiff not being the

legal wife is not entitled to maintenance. On appeal, the district judge held

that though the marriage was void, the plaintiffs status was higher than an

avarudha stree (permanently kept concubine) as there was a marriage

solemnised and awarded Rs. 80/- p.m. as maintenance. On appeal the High

Court upheld the decision on the ground that the words Hindu wife does

not mean only a lawfully wedded wife. But such an interpretation is not of

much relevance today as the Hindu male can no longer marry more than

one wife after the Hindu Marriage Act, 1955 and bigamy is an offence

under Section 494 of Indian Penal Code, 1860.

Keeping a concubine by the husband is another ground for the

Hindu woman to live separately and claim maintenance. The Bombay High

Court in Kesarbai Vs Hari Bhai held that where the husband keeps a

concubine in the same house or usually resides with her, there the wife

acquires a right to claim maintenance by living separately. The very fact

that he usually resides with the concubine proves that a married person

normally lives with her without changing normal residential place. His

conduct within a determined defined period, his mental attitude by frequent

visit to the concubine, his statements, his relation to that lady, etc. are the

factors which are to be taken into consideration for determining the fact of

his usual cohabitation with the concubine.

135 AIR1970 Bom. 115.

126
 Even the wife failed to establish that the woman with whom her

husband was living was the women whom he had married but it was

sufficiently established that he was living with her. It was held that she was

entitled to maintenance. 136 Supreme Court also in Rajathi Vs C.

Ganesan observed that where the wife is entitled to prove the husband

has remarried, yet the fact remained that the husband was living with

another woman, the wife would be entitled to live separately and would

amount to neglect or refusal by husband to maintain her. The statement of

the wife that she was unable to maintain herself would be enough.

Therefore, the wife was entitled to maintenance due to neglect or refusal of

husband to maintain her.

Under Section 18(2)(g) a wife can claim separate residence with

maintenance when there are other grounds for claiming maintenance which

are not specifically provided under clauses (a) to (f) of Section 18(2).

Where the wife resides separately and claims maintenance on the ground

that the husband is used in drinking, the High Court held that the wife does

not acquire the right separate residence and maintenance simply because

the husband drinks. But if the husband treat her with cruelty along with

drinking that becomes a strong case of her maintenance and living

136 Maharaja Nadar Vs Muthukami Ammal AIR1986 Mad. 346.

137 AIR1999 SC 2374.

127
separately138. This clause (g) of Section 18(2) within the ambit of a

reasonable person who feels that there are serious reasons for claiming

separate residence. In Meera Nireskwalia Vs Sukumar Nirishwalia 139 the

Madras High Court held that the wife had been living alone and all the

children had been brought up by her without any assistance and help from

the husband and there was a clear case of desertion, the wife was entitled to

separate residence and maintenance. It was also held that the claim for

maintenance by a wife can also be sustained under clause (g) of Section

18(2) even on a ground covered by one or other clause i.e. clauses (a) to (f)

substantially but not fully. Merely because the wife fails to strictly prove

the specific grounds urged by her, she cannot be denied relief.

Under the old Hindu law an unchaste Hindu wife did not completely

forfeit her right to claim maintenance. But Section 18(3) contemplates that

such a unchaste wife is not entitled to separate residence and maintenance

i.e. she cannot claim it as a matter of right. According to this provision, a

wife who has ceased to be Hindu by embracing another religion would not

also be entitled to maintenance.

There is no express provision in the Hindu Adoptions and

Maintenance Act for interim maintenance. In Indra Mai Vs Babulal 140

Rajasthan High Court observed that the power to grant interim

138 Shobha Vs Bhima and others AIR1975 Ori.180.

139 AIR 1994 Mad. 168.
140 AIR 1977 Raj. 160.

128
maintenance is implicit and ancillary to the power to entertain a suit for

maintenance and the court has power to grant interim maintenance under

Section 18 of the Hindu Adoption and Maintenance Act. If there is a

general right to claim maintenance under the Statute and where the

relationship is undisputed, the power to grant interim maintenance flows

from the statute itself. In Sangeeta Raj Vs Piyush Chaturbhuj 141 Bombay

High Court also held that nothing debars a court from making an order for

interim maintenance under Section 18. For doing real justice the court can

exercise its power under Section 151 of Civil Procedure Code to grant

interim maintenance on petition filed under this section If this is not done

the entire purpose of the enactment would be defeated because of the

proverbial delays in disposal of cases resulting in grave hardship to the

applicant who may have no means of sustenance until the final decree.

The obligation to maintain the wife remains on the husband even

though the wife might be living separately. A suit under Section 18 of the

Hindu Adoptions and Maintenance Act may take decade to decide, and the

wife cannot be force to face starvation and then subsequently be granted

maintenance from the date of the filing of suit. Such a view will be against

the very intent and spirit of Section 18 of Hindu Adoptions and

Maintenance Act. It is settled law that a court empowered to grant a

substantive relief is competent to award it on an interim basis as well, even

though there is no express provision in the statute to grant it142.

141 AIR1998 Bom. 151.

142 Neelam Malhotra Vs Rajinder Malhotra,AIR 1994 Delhi, 234.

129
 According to ancient Hindu Law the father-in-law was neither under

any legal obligation nor any personal obligation to provide maintenance to

widowed daughter-in-law. It was merely a moral obligation. If the father-

in-law received some property by survivorship on the death of his son, who

died leaving behind his widow, he would be under a legal obligation to

maintain the widow of such a son.143 According to Section 19 of the Hindu

Adoptions And Maintenance Act, any wife whether her marriage took

place either before the commencement of the Act or thereafter, on the death

of her husband, would be entitled to maintenance from her father-in law

under the circumstances provided under Section 19 of the Act. The right to

claim maintenance from the father-in-law is however conditional upon the

father-in-law having in possession of coparcenary property out of which

widowed daughter-in-law has not obtained any share. Supreme Court in

Rani Bai Vs Yadunandan 144held that an obligation under sub-section (1) of

Section 19 of Hindu Adoption and Maintenance Act shall not be

enforceable if the father-in-law had not the means to do so from any

coparcenary property in his possession out of which the daughter-in-law

has not obtained any share and any such obligation shall cease on the

remarriage of the daughter-in-law. This section governs the right of a

widowed daughter-in-law to receive maintenance after commencement of

the Act. However, if the widowed daughter-in-law is put in possession of

some property of her deceased father-in-law, in lieu of her right to

maintenance, she cannot be deprived of those properties without securing

143 Prof.lLP.D.Kesari &Dr.Aditya Kesari-Mjc/m? Hindu Law, (7th Ed. 2009), p. 176.
144 AIR 1969 SC 1118.

130
proper maintenance for her out of the aforesaid property. But in Smt. Balbir

Kaur Vs Harinder Kaur145 the Punjab and Haryana High Court though

under Hindu Adoption and Maintenance Act the right to claim maintenance

by widow daughter-in-law against her father-in-law is limited to the extent

of coparcenary property in the hands of father-in-law out of which

widowed daughter-in-law has not taken any share but under the Old Hindu

Law, prevailing before the enactment of the Act, this right of maintenance

to the widowed daughter-in-law against the self acquired property of her

father-in-law, was available. This right is still available to the widowed

daughter-in-law of the predeceased son against the self acquired property

of her father-in-law as this right shall not cease to be in force because the

same is not inconsistent with any provisions contained in the Act. Thus, the

widowed daughter-in-law of a predeceased son is entitled to claim right of

maintenance against the self acquired property of her father-in-law,

whether it is in his hand or in the hand of his heir or donee.

Section 19(2) of the Hindu Adoptions and Maintenance Act

provides that the daughter-in-law’s right to claim maintenance comes to an

end under the following conditions:

(1) Where the father-in-law does not have any means for

maintenance out of coparcenary property which was

owned by her deceased husband;

145 AIR 2003 P&H. 174.

131
 (2) Where the widowed daughter-in-law received any

share in the coparcenary property;

(3) Where she has remarried; and

(4) Where she has converted into other religion.

In Kanailal Vs Pushparani146 the question arose before the Calcutta

Division Bench whether Section 19(1) of the Act is restricted in its

application to Mitakshara joint families only. It was held that while sub­

section (2) of Section 19 is confined in its application to Mitakshara

families, it is not so with respect to sub-section (1). It is inconceivable that

the legislature will provide for the maintenance of destitute widowed-

daughter-in-law of Mitakshara families only, leaving such daughter-in-law

of Dayabhaga families to starvation. Sub-section (1) of Section 19 confers

a right on a widowed daughter-in-law to claim maintenance from her

father-in-law irrespective of whether they are governed by the Mitakshara

or the Dayabhaga School of Hindu Law.

According to ancient texts, it was to be father’s obligation to

maintain his legitimate daughter till her marriage and to pay for her

marriage expenses. It was the father’s personal obligation. After the

father’s death she was to be maintained out of the properties of her father.

The obligation ceased on her marriage. Under Hindu Adoptions and

146 AIR 1979 Cal. 172.

132
Maintenance Act, daughter whether legitimate or illegitimate both can

claim maintenance from her parents. But the obligation of the parents to

maintain them would be dependent on the fact that the daughters are unable

to maintain themselves by their own separate earnings and property.

Daughters can claim maintenance from her parents so long as she is

unmarried. There is no obligation on the parents to maintain a married

daughter but on her becoming a widow, the obligation is revived. But the

obligation to maintain widowed daughter exists only and to the extent that

she is unable to obtain maintenance: (a) from the estate of her husband; (b)

from her son or daughter; (c) from her father-in-law or from his estate147.

But, on her remarriage she cannot claim maintenance as she ceases to be

widowed daughter. In Balwant Kaur Vs Chanan Singh Supreme Court

held that if we read with words estate before the words father in Section

19(l)(a), then Section 22(2) read with Section 21(vi) of Hindu Adoptions

and Maintenance Act, 1956 would become otiose. That is why we say that

the proviso (a) to Section 19(1) creates a personal right in favour of the

widowed daughter against her father during his lifetime. Any property

given in lieu thereof, during his lifetime or to go to her after the father’s

lifetime would certainly fall under Section 14(1) of the Hindu Succession

Act, 1956, that being in lieu of a pre-existing right during the father’s

lifetime. On facts, it must be held that the widowed daughter had a right

147 Section 20(vi) of Hindu Adoptions & Maintenance Act, 1956.

148 AIR2000 SC 1906.

133
against her father, during the latter’s lifetime, as she was a destitute and not

taken care of by her husband or his estate. It is in lieu thereof he gave her

1/3 of his property. This provision clearly indicates that if the widowed

daughter-in-law is destitute and has no earnings of her own or other

property and if she has nothing to fall back upon for maintenance on the

estate of her husband or father or mother or from the estate of her son or

daughter, if any, then she can fall back upon the estate of her father-in-law.

This provision also indicates that in case of a widowed daughter-in-law of

the family if she has no income of her own or no estate of her husband to

fall back upon for maintenance, then she can legitimately claim

maintenance from her father or mother. On facts of the present case,

therefore, it has to be held that appellant No. 1 who was a destitute

widowed daughter of the testator and who was staying with him and was

being maintained by him in his lifetime, had nothing to fall back upon so

far as her deceased husband’s estate was concerned and she had not estate

of her own. Consequently, as per Section 19(l)(a) she could claim

maintenance from the estate of her father even during her father’s lifetime.

This was a pre-existing right of the widowed daughter qua testator’s estate

in his own lifetime and this right which was tried to be crystallized in the

will in her favour after his demise fell squarely within the provisions of

Section 22(2) of the Hindu Adoptions and Maintenance Act. Thus, on a

conjoint operation of Sections 19(1)(9) and 22(2) read with Section 21(vi)

134
there is no escape from the conclusion that appellant No. 1 had a pre­

existing right of being maintained from the estate of the testator during the

testator’s lifetime and also had got a subsisting right of maintenance from

the estate even after the testator’s death when the estate would pass in

favour of his testamentary heirs and the same situation would have

occurred even if the testator had died intestate and appellant No. 1 could

have become a Class I heir.

Maintenance under the Hindu Marriage Act, 1955:

In a happy marriage neither spouse thinks much about who is

providing support for whom. But when the marriage begins to creak,

maintenance to becomes an important question, especially for the woman

and children. In the past woman were assumed to be dependent on their

husbands. But now under the Hindu Marriage Act, 1955 gives both spouses

equal status. Therefore, when the husband needs support after dissolution

of marriage an earning wife may have to pay him maintenance. Traditional

Hindu Law put personal liability on Hindu husband to maintain his wife

and children. And marriage was regarded as indissoluble. After passing

Hindu Marriage Act, 1955, Hindu marriage becomes dissoluble. There is

also provision for permanent alimony. Alimony means the allowances

which husband or the wife by court order pays to other spouse for

135
maintenance while they are separated or after they are divorce.149 A

woman’s physical structure and the performance of matrimonial functions

place her at a disadvantage in the struggle of subsistence. The main reason

for awarding permanent alimony to the wife seems to be that if the

marriage bond is to be allowed to be severed in the larger interest of

society, the same consideration of public interest and social welfare also

requires that the wife should not be thrown on the street but should be

provided for, in order that she may not be compelled to adopt a

)
disreputable way of life.

Section 24 of the Hindu Marriage Act makes a provision for grant of

maintenance pendent lite and expenses of proceedings to either spouse and

Section 25 provides the provisions regarding payment permanent alimony

and maintenance. The object of Section 24 is to ensure that a party to a

proceeding does not suffer during the pendency of the proceeding by

reason of his or her poverty. After passing Hindu Marriage (Amendment)

Act, 2001, the application for the payment of the expenses of the

proceeding and such monthly sum during the proceeding shall, as far as

possible, be disposed of within sixty days from the date of service of notice

bn the wife or the husband as the case may be. In Chitralekha Vs Ranjit

149 Rakesh Kumar Singh, “Alimony under Hindu Marriage Act: An Overview”, A.I.R. 2006
Journal, p. 41.

136
Rai150 it was observed that the object behind Section 24 is to provide

financial assistance to the indigent spouse to maintain herself (or himself)

during the pendency of the proceedings and also to have sufficient funds to

depend or carry on the litigation so that the spouse does not unduly suffer

in the conduct of the case for wants of funds.

During the pendency of the divorce proceedings at any point of time

if the wife establishes that she has no sufficient independent income for her

support, it is open to her to claim maintenance pendent lite.151 Provisions of

Section 24 of the Hindu Marriage Act provides for support to be given by

the earning spouse in favour of non-earning spouse during the pendency of

proceedings before the court. Therefore, an application seeking for

reimbursement of medical expenses incurred by a dependant spouse is

definitely on which can be allowed in an application under Section 24 of

the Hindu Marriage Act152.

It can be said that the right to claim interim maintenance and

expenses for the proceedings given under Section 24 is a special right

irrespective of the result of the main petition for any relief covered by

Section 9 to 13 of the Hindu Marriage Act. The only consideration for

exercising the jurisdiction under this Section is whether the party has no

150 AIR 1977 Del. 176.

151 Monokaran Vs Devaki,AIR 2003 Mad. 212.
152 R.Suresh Vs Chandra M.A. ADR. 2003 Kant. 183.

137
independent income sufficient for his or her support and for necessary

expenses of the proceeding. Even after close of proceeding under the Act

the court remains competent to order Pendente lite maintenance and

expenses of litigation and it cannot be refused simply because the said

litigation has ended153.

In Pradeep Vs Shailja 154. Delhi High Court laid down that an

application under Section 24 is to be considered in the background of the

following facts:

(a) the status of the parties to marriage;

(b) legitimate needs of the claimant, for example, food, clothing,

medicine, place of shelter, education, etc.;

(c) the own income of the claimant;

(d) income of respondent; and

(e) the number of persons required to be maintained.

In Smt. Savitri Pandy Vs Prem Chandra Pandey155 Supreme Court

held that interim maintenance can be granted even in proceedings under

Section 12(l)(a) or Section 25 of the Hindu Marriage Act, 1955. The grant

of relief under this Section is not dependant either on the merits of the

petition or on the decision of any particular issue or upon the ultimate

153 Amrika Singh Vs Smt.Harinder Kaur AIR 1979P&H 211.

154 AIR 1989 Del. 10.
155 AIR 2002 SC 591.

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success or failure of the petition. The jurisdiction to pass and order under

Section 24 arises a soon as any proceedings are instituted under the Hindu

Marriage Act.

Permanent Alimony and Maintenance:

Section 25 of the Hindu Marriage Act, 1955 provides provision for

permanent alimony and maintenance. Under this Section the Court is

empowered to grant permanent maintenance to either spouse at the time of

passing decree or at any time thereafter at the instance of a spouse who is

not able to maintain herself or himself.

The right to claim maintenance under Sections 24 and 25 is an

independent right available to the parties in ancillary proceedings in any

petition for any matrimonial relief under the Hindu Marriage Act, 1955 and

it is not controlled by the Hindu Adoptions.and Maintenance Act, 1956156.

The provision contained under Section 25 of the Act is a progressive

law to the Hindu wife who is in financial hardship and unable to maintain

herself specially during the legal proceedings. However, quantum of

alimony and maintenance depends on the status and conduct of the parties

who is seeking such relief. If the petition for permanent alimony and

maintenance has to be filled, it should be in consequence of the petition

under anyone of the reliefs mentioned in Section 9-13 of the Hindu

Marriage Act, 1955.

156 Govindram Vs Anandibai AIR 1976 Bom. 433.

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 There is controversy regarding passing of decree of permanent

alimony and maintenance among the decisions of court. There were

opinions of courts that if the petition under any one of the Section 9-13 of

the Hindu Marriage Act has been dismissed, no petition for permanent

alimony and maintenance can be made under Section25. But some

decisions dissented from this view. In Kadia Hari Lai Purshottum Vs

Kadia Lilavati Gokaldas husband’s petition for restitution of conjugal

rights was dismissed. His appeal was also dismissed. In these proceedings

the wife had filed a petition for permanent maintenance and alimony under

Section 25, Hindu Marriage Act. The trial court accepted wife’s application

and granted her permanent alimony and maintenance. In appeal the

husband argued that looking to the words “at the time of the passing the

decree” the Court could have jurisdiction to pass an order under Section 25

only when it passed a decree in the main proceedings. If it dismisses the

main petition it could not make any order in ancillary matter. On the other

hand, wife argued that the words “any decree” would include an order

dismissing the petition as a decree is passed even then. Rejecting the

contention of wife, the Gujarat High Court said the word “any” which

proceeds the word “decree” has been used having regard to the various

kinds of decrees which may be passed under the provisions of the Act. In

157 AIR 1961 Guj. 202.

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Shantaram Vs Hirabai158 the petition was allowed to be withdrawn and

dismissed, and the wife and minor were not granted maintenance under this

Section as there was no decree in favour of the husband.

In S. Jagannath Prasad Vs Lalitha Kumari159 the Andhra Pradesh

High Court observed that the main object of Section 25 of the Act is to

provide some amount for the sustenance of parties who are unable to

support themselves. It cannot be said that the words “at the time of passing

of the decree” under Section 25(1) mean only when the suit or petition is

allowed. A decree means the expression of an adjudication. The suit or

petition may either be dismissed or allowed. A relief may be given or

refused. In either case, it is decree. There is no reason to give a restricted

meaning to the expression “decree”. In this connection the word “any” is

also significant. It indicates either allowing or rejecting.

In Devinder Singh Vs Jaspal Kaur160 it was held that Section 25(1)

comes into play the moment there is a decree. The application for

maintenance can be filed at any time, even after the said decree. It is not

confined to any decree for divorce. The expression any decree would

include a decree by which the marriage has been declared to be null.

158 AIR 1962 Bom. 27.

159 AIR 1989 A.P. 8.
160 AIR1999 P&H 229.

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 Supreme Court in Chand Dhawan Vs Jawaharlal Dhawan 161 held

that the matrimonial court, a court of special jurisdiction, is not meant to

pronounce upon a claim of maintenance without having to go into the

exercise of passing a decree which implies that unless it goes onwards,

moves or leads through to affect or disrupt the marital status between the

parties. By rejecting a claim the matrimonial court does make an

appealable decree in terms of Section 28 of the Hindu Marriage Act, but

that neither affects nor disrupts the marriage. It certainly does not pass a

decree in terms Section 25 for its decision has not moved or done anything

towards, or led through to disturb the marriage or to confer or take any

legal character or status.

In Rameshchandra Rampratap Daga Vs Rameshwari

Rameshchandra Daga the husband and wife were married for the

second time. Although the divorce petition filed by the wife was against

her previous husband, a decree of divorce was not passed. The wife

showed a registered document of dissolution of marriage with her previous

husband in accordance with the prevalent custom in the Meheshwari

Community to the present husband at the time of second marriage. There

were allegations of ill treatment meted out to wife by the second husband

for non-fulfilment of dowry demands. Hence, she initiated proceedings for

161 (1993)3 SCC 406.

162 AIR2005 SC 422.

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grant of a decree of judicial separation and maintenance. Counter petition

filed by the husband seeking declaration of the second marriage with the

wife as nullity on the plea that on the date of second marriage, the wife’s

marriage with previous husband had not been dissolved by any court, The

Family Court granted decree of judicial separation. The High Court reverse

the finding of the Family Court and dismissed the wife’s petition for a

decree of judicial separation and allowed the husband’s petition declaring

his second marriage as null and void. There was no evidence to show that

decree of divorce was obtained by the wife from her previous husband and

that she obtained only a registered document from her previous husband.

There was absence of establishment of the existence of customary divorce

in the Vaish Community of Maheshwar. As a Hindu marriage can be

dissolve only in accordance with the provisions of the Hindu Marriage Act,

by obtaining a decree of divorce from a court, the finding of High Court

that second marriage of wife was null and void held justified. The decree of

maintenance in favour of the wife and the daughter was maintained by the

High Court. The husband challenged it on the ground that where a

marriage was declared to be null and void by grant of a decree, no order

awarding permanent alimony or maintenance could be made in favour of

an unsuccessful party under Section 25 of the Hindu Marriage Act. It is a

well known and recognised legal position that customary Hindu law like

Mohammedan Law permitted bigamous marriages which were prevalent in

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all Hindu families and more so in royal Hindu families. Hence, it was held

that bigamous marriage may be declared illegal in contravention of

provision of Act. However, it could not be said to be immoral so as to deny

even the right of alimony or maintenance to a spouse who was financially

weak and economically dependent. High Court in holding that wife

deserved to be granted maintenance under Section 25 is justified.

Section 25 of the Hindu Marriage Act, 1955 confers upon a woman

whose marriage is void or is declared to be void, a right of maintenance

against her husband. The right of maintenance can be enforced by her not

only in proceeding under Section 25 but also in any other proceeding

where the validity of her marriage is determined. It can be claimed by her

not only during the lifetime of her husband but also after his death against

the property of her husband. But her right of maintenance is available only
1 £-3
during her lifetime and ceases if she remarries.

According to sub-section (3) of Section 25 of Hindu Marriage Act

the right to maintenance of a Hindu wife comes to an end under the

following circumstances:

(1) Where the Hindu wife has remarried;

(2) Where the wife ceases to remain chaste.

163 Shanta Ram Vs Dagoo Devi AIR 1987 Bom. 182.

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 If the court is satisfied that there is change in the circumstances of

either party of any time after it has made an order for maintenance, if may

according to sub-section (2) of Section 25, at the instance of either party,

vary, modify or rescind any such order in such manner as the court may

deem just.

It is also well recognised in Hindu law that right of maintenance is a

substantive and continuing right and the quantum of maintenance is

variable from time to time.164

Maintenance under the Code of Criminal Procedure, 1973:

Sections 125-128 of the Code of Criminal Procedure, 1973, provide

a comprehensive scheme for the maintenance of wife, children and aged

parents. Though the subject matter of these provisions is civil in nature, the

primary justification for their inclusion in the criminal procedure code is

that this remedy is more speedy and economical than that available in civil

courts . These provisions give effect to the natural and fundamental duty of

a man to maintain his wife, children and parents so long as they are unable

to maintain themselves.165

By providing a simple, speedy but limited relief provision of

maintenance under Criminal Procedure Code, 1973 seek to ensure that the

164 Ram Shanker Rastogi Vs Smt. Vinaya AIR 1991 All, 255.
165 Anjani Kant, “Right of Maintenace to Indian Women”, J.I.L.1. Vol. 38 (1996), p. 396.

145
neglected wife, children and parents are not left beggared and destitute on

the scrap heap of society and thereby drives to a life of vagrancy,

immorality and crime for their subsistence166. The provisions contained in

Sections 125-128, of Criminal Procedure Code,1973 are measures of social

justice and falls within the constitutional sweep of Article 15(3) reinforced

by Article 39 of the Constitution of India. Supreme Court in Mohd.

Ahmed Khan Vs Shah Bano Begum168 held that Section 125 of Cr.P.C. is

applicable to all irrespective of their religion. It does not matter that parties

claiming maintenance belong to which personal law.

According to Section 125 (l)(a) of the Cr.P.C. wife, who is unable

to maintain herself, is entitled to claim maintenance from her husband. She

may be of any age minor major. The term includes a woman who has been

divorced by or has obtained divorce from her husband and has not

remarried.

The term “wife” appearing in Section 125(1) means only a legally

wedded wife.169 But it is not intended to provide for a full and final

determination of the status and personal rights of the parties. The

proceedings are simple in nature, providing a speedy and simple remedy.

Where the wife proves performance of certain marriage ceremonies, it is

166 Bhagwan Dutt Vs Kamla Devi (1975)2 SCC 386.

167 Captain Ramesh Chadra Vs Veena Kaushal,1979 Cr.LJ.3.
168 AIR 1985 SC 945.
169 Savitaben Somabhai Bhatiya Vs State of Gujarat, AIR 2005 SC 1809.

146
immaterial whether the same satisfies all the requirements of a valid

marriage. It is for the husband to have gone to a competent civil court and

got his marriage annulled. In the absence of a declaration by a civil court

about the legality or otherwise of the marriage the court has to presume that
1 HfS
the said marriage is legal.

171
The Supreme Court in Rohtas Singh Vs Smt. Ramendri held that

for the purpose of claiming maintenance a divorced woman will continue

to have a status of wife irrespective of the ground in which the divorce was

granted. The husband in that case will be bound to provide maintenance if

she becomes destitute and cannot maintain herself and remains unmarried

,she would be entitled to maintenance from divorced husband .It is also

observed that the claim for maintenance under the first part of section 125

of Cr.P.C is based on the subsistence of marriage while claim for

maintenance of a divorced wife is based on the foundation provided by

Explanation (b) to Sub-Section (1) of section 125 of Cr .P.C. If the

divorced wife is unable to maintain herself and if she has not remarried she

will be entitled to maintenance allowance.

A wife who become a divorce by mutual consent by executing a

document would fall within the scope of the inclusive definition of “wife”

170 Malan Vs Balasaheb Gawade, 1989 Cr.U 675 (Bom.).

171 AIR 2000 SC 952.

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given in Explanation (b) to Section 125(1)172. A divorce deed enabling the

husband to avoid payment of maintenance cannot stand in the way of

granting maintenance to the wife.173

The wife stands in a unique position regarding the maintenance by

her husband. If the husband offers to maintain his wife on condition of her

living with him and she refuses to live with him without any sufficient

reason, she will not be entitled to maintenance under Section 125.

Similarly, a wife shall not be entitled to receive an allowance from her

husband if she lives in adultery or if the spouses are living separately by

mutual consent174. The right of married woman to claim maintenance under

Section 125 is not absolute and subject to certain conditions. However, the

impotency of husband which amounts to cruelty and is a just ground for

wife’s refusal to live with her husband does not disentitle the wife to claim

maintenance under Section 125 of Criminal Procedure Code if she is

enable to maintain herself.175 And divorce deed enabling the husband to

avoid payment of maintenance cannot also stand in the way of granting

maintenance to the wife.176In Mahera Biswas Vs Swegata Biswas 177 the

order of maintenance was passed by the family court but later on the parties

compromised and after sometime the compromise failed and they again

172 Gurmit Kaur Vs Surjit Singh (1996)1 SCC 39.

173 Kaushalyabati Dinkar Mule Vs Dinkar Mahadeorao,2001 Cr.LJ 2292 (Bom.).
174 Section 125(4) and (5) of Criminal Procedure Code,1973.
175 M,A.Kumar Singh Vs vi. Addl. Session Judge Varanasi, (1996) 1 SCC 554.
176 Kaushalyabai Dinkar Mule Vs Dinkar Mahadeorao,2001 .Cr.LJ 2292 (Bom.).
177 1998 (2) SCC 359.

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started living apart. Supreme Court held that in such circumstances during

the compromise the order of maintenance remained suspended, however, it

was not wiped out and revived after the compromise failed. The right of the

wife to claim maintenance is not wiped out only by entering into

compromise with the husband.

Section 125(1) Cr.P.C. makes it clear that “any person” having

sufficient means neglects or refuses to maintain his wife, his legitimate or

illegitimate child, his father or mother and who has attained majority, that

an application can be filed for maintenance against such person, in his

capacity, as husband, father or son. The man shall be deemed to have

sufficient means, if a man has good income from his property he shall be

said to be a man “having sufficient means, though, he himself may be

incapable of doing any work. So also, if a man though he has not possessed

property and has no income from any property but he is a well bodied man,

it shall be presumed that he has sufficient means. Sufficient means is not

17 ©
confined to pecuniary resources only.”

Under Section 125 of the Cr.P.C. 1973, second wife of a person

having contracted marriage in the life time of the first wife, without having

178 Tejaram Vs Smt. Sunanda Devi, 1996 Cr.LJ 172.

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obtained divorce, second wife will not be entitled to claim maintenance

from her husband.179

According to Section 125 of Cr.P.C. a minor legitimate or

illegitimate child has a right to claim maintenance from his or her father. A

minor married girl has also right to claim maintenance from her husband or

her father if the husband of the minor married female child is not possessed

of means to provide maintenance. But it should be until she attains her

majority.

Before the year 2001, an aggrieved woman had to wait for years for

getting relief from the court. But the Code of Criminal Procedure

(Amendment) Act, 2001 by making amendments to maintenance

provisions i.e. Sections 125-128 of the Cr.P.C. provides the provision for

interim maintenance allowance. Therefore, during the pendency of the

proceedings the Magistrate may order payment of interim maintenance

allowance and such expenses of the proceeding. This Amendment Act

2001, removes the limit of Rs. 500/- as maintenance allowance, now it is

for the court to determine the same on the basis of facts and circumstances

of the particular case. According to this Amendment Act, an application

filed under Section 125 of the Cr.P.C. for the monthly allowance for the

interim maintenance and expenses of proceeding as far as possible be

179 Khem Chand Om Prakash Sharma Vs State of Gujarat, 2000(3) SCC 753.

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disposed of within 60 days from the date of the service of the notice of the

application to such person. It appears that with a view to provide

expeditious relief to the wife the legislature incorporated above provisions

in the maintenance provisions of Criminal Procedure Code. The ceiling of

rupees five hundred as maintenance allowance has also been repealed by

this Amendment Act as with the cost of living index consistently rising.

Retention of a maximum ceiling is not justified as it would require periodic

revision.

While men and women may notionally be equal, but one has to

acknowledge that Hindu society is still a male-dominated one. The main

task of law should be to protect women and their rights in right earnest.

Therefore, the provisions for maintenance for the wife and children should

be properly maintained.

151