Marriage, Divorce and Estate
Y. SRINIVASA RAO,
M.A (English Lit.,)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. Senior Civil Judge cum Assistant Sessions Judge.
The Hindu Marriage Act, 1955 regulates ”Marraige” and ”Divorce” among Hindus, Buddhists, Sikhs and Jains. Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. A marriage is automatically void and is automatically annulled when law prohibits it. Section 11 of Hindu Marriage Act, 1955 deals with: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act. If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary (Bigamy). A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption. A marriage between close relatives such as an uncle and a niece; between an aunt and a nephew; or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs. See. Sec. 5 of the Hindu Marriage Act,1955.
Void and Voidable marriages:-
Section11.Void marriages:- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 12. Voidable marriages:—
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following, grounds, namely:— (a) that the marriage has not been consummated owing to the importence of the respondent; or (b) that the marriage is in contravention of the condition specified clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was the time of the marriage pregnant by some person other
than the petitioner.
(2) Notwithstanding anything contained in sub-section (1) no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub- section (1) shall be entertained if— (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (b) of sub-section (1) shall be entertained unless the court is satisfied— (i) that the petitioner was at the time of the marriage ignorant of the facts alleged: (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any other person other than his or her spouse; or (ia) has after the solemnization of the marriage, treated the petitioner with cruelty, or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation: — In this clause— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind )whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not, it requires or is susceptibel to medical treatment; or (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from veneral disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; Explanation:— In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party of the marriage, and its grammatical variations and cognate expressions shall be construed accordingly (1-A)Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground– (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:—
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898); a decree or order, as the case may, be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such the decree or order, co-habitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after marriage after attaining that age before attaining the age of eighteen years. Explanation: — This clause applied whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).
Section 10. Judicial Separation:— (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition paying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the
decree if it considers just and reasonable to do so.
Grounds for judicial separation:-
Grounds for judicial separation under Section 13 (1) of The Hindu Marriage Act, 1955. Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party –
- Adultery: – has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
- Cruelty: – has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
- Desertion: – has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- Conversion:- has ceased to be a Hindu by conversion to another religion; or
- Insanity:- has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; (See also Explanation to sec. 13 (iii) (b)); or
- Leprosy:- has been suffering from a virulent and incurable form of leprosy; or
- Venereal disease: – has been suffering from venereal disease in a communicable form; or
- Renounced the world:- has renounced the world by entering any religious order; or
- Unheard for seven years:- has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
In Bodapati Umamaheswari Vs. Bodapati Venkateswara Rao – 2013 (6) ALT 405 (D.B) it was held that filing of a case by wife under Section 498-A, IPC against husband or, for that matter, availing of further remedies in that direction, by itself, cannot be treated as a ground of cruelty.
In Vidhyadhari and others v. Sukhrana Bai and others (2) 2008 (2) ALT 12 (SC) = (2008) 2 SCC 238 and the relevant observation in the above said judgment is as under: “This Court in a reported decision in Rameshwari Devi s case (supra) has held that even if a Government Servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void.”
It was held in Dr. (Mrs.) Malathi Ravi, M.D. Vs. Dr. B.V. Ravi, M.D. – 2016 (1) ALT (D.N) (SC) 24.2 (D.B.), To constitute desertion so far as deserting spouse is concerned, two essential conditions must be there:
(i) the factum of separation and
(ii) the intention to bring cohabitation permanently to an end (animus
Similarly, two elements are essential so far as deserted spouse is concerned (1) the absence of consent and (2) absence of conduct, giving reasonable cause to the spouse leaving matrimonial home, to form the necessary intention aforesaid.
In Koraganji Sita Mahalakshmi v. Koraganji Yelleshwer Rao Patrudu and another – 2005 (4) ALT 478 (DB), it was held that cohabitation of husband with his wife with the knowledge that she was leading an adulterous life amounts to condonation of the adulterous conduct on the part of the wife. In Jagadishwari and others Petitioner Vs. Aleti Bikshapathy and another Respondents – 1998 (1) ALT (CRL) (AP) 24, it was held that Even if the evidence of R.Ws. 1 to 4 and 7 is admitted to be correct for arguments sake, it is a stray act of adultery on the part of the wife and such a single act of adultery does not necessarily amount to ‘living in adultery’.
Estate:- It is well-settled law that a nominee, who claims death benefits arising out of employment, can always file application under Section 372 of Indian Succession Act, 1925 for grant of Succession Certificate. See. Vidyadhari and others v. Sukhrana Bai and others – 2008 (2) ALT (SC) 12. In Mylarapu Mallamma v. Mylarapu Saroja and others, once it is established that the appellant/petitioner is the legally wedded wife of the deceased and the 1st respondent failed to prove the valid marriage between herself and the deceased except living with the deceased as wife, necessarily she has to implead the petitioner/1st wife and the deceased’s late mother, who are entitled to succeed the estate of the deceased subject to proof of divorce between the appellant and the deceased, in the proceedings initiated for succession certificate. Any succession certificate obtained without impleading the legal heirs knowingly that both of them are made rival claims before the Controlling Authority under Payment of Gratuity Act will amount to obtaining the certificate fraudulently by concealment of some material facts.
In Gandhi Demudamma and others v. Gandi Jayalaxmi, Ex-wife of Late Atchaiah and others – 2002 (4) ALT 214 ( D.B. ), if the Judge comes to the conclusion that the applicant as well as the objectors are the legal heirs of the deceased person he can issue Legal Heir Certificate by determining the extent of interest of the respective parties in the estate of the deceased. Hence, the view taken by the learned Single Judge that only one Legal Heir Certificate can be given and if he still entertains any doubt with regard to the claim of the other party an equitable order can be made by the court while issuing certificate in favour of the applicant seems to be erroneous. Though, the certificate may be one, the court is always within its competence to grant certificate in favour of all the legal heirs duly determining the extent of interest in the estate of the deceased. To that extent the finding of the learned Single Judge cannot be sustained and it is accordingly reversed. (Para 5) What all the agreement states is that first respondent-wife will not have any claim in future payment of maintenance in view of the payment of amount in lump-sum. Hence, the trial Court gravely erred in holding that the marriage was dissolved between late Atchaiah and the 1st respondent. Further, it is to be seen that even assuming that the agreement speaks of a divorce while a customary marriage is recognised in law customary divorce is not recognised unless a competent Court dissolves the marriage in accordance with law. Hence, it is not difficult to hold that the respondents are also the legal heirs of late Atchaiah. Well another circumstance in this case is that though the 1st appellant has given birth to as many as 5 children the marriage between her and late Atchaiah has not taken place. This plea will clinchingly prove that marriage between late Atchaiah and the 1st respondent herein is subsisting and he may have been afraid of marriage with the 1st appellant because of Section 494, I.P.C. whereunder he is liable to be prosecuted for Bigamy. But, at the same time, as late Atchaiah nominated her to receive the retiremental benefits etc she cannot be disinherited from claiming a share in the estate of the deceased. But she being the nominee of late Atchaiah even if she is entitled to receive the amounts due from the employer the entire estate belongs to all the legal heirs. Hence, the direction given by the learned Single Judge is perfectly in order though the reasoning given by him won’t appeal to court.
Conclusion:- In general, the word ‘marriage” means, it is a state of being united to a person of the opposite sex as husband or a wife in a consensual and contractual relationship recognized by law. When it comes to Hindu Law, marriage is termed as a sacred relationship. However, in Muslim law, marriage is a contractual relationship. Divorce means dissolution of marriage. Divorce is the process of terminating marital relationship between spouses. The word ‘divorce’ is different from the word ‘annulment’. Annulment declares that a marriage is null and void. Recent study says that children who resides with just one parent after divorce is granted suffer from more problems. In the present ear, it is significant to note that the divorce rate has been increasing in the Society. Complete understanding between the spouses is very essential for smooth relationship between the spouses. The inheritance of estate by a spouse (wife/husband) from husband/wife depends upon their state laws. In India, In inheritance, the daughter’s share is equal to one half of the son’s in keeping with the concept that a woman is worth half a man. The Hon’ble Apex Court observed that in the case of divorce, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under Hindu law, A married woman has exclusive right over her individual property. Unless she gifts it in part or wholly to anyone. She is the sole owner and manager of her assets whether earned, inherited or gifted to her. Upon partition of a joint family estate, between her husband and his sons, she is entitled to a share equal to as any other person. Similarly, upon the death of her husband, she is entitled to an equal share of his portion, together with her children and his mother. Under the Christain law, upon death of her husband, she is entitled to a one third share of his property, the rest being divided among the children equally.