Matrimonial Remedies under the Hindu Marriage Act, 1955

In one minute

The Hindu Marriage Act, 1955 gives four main matrimonial remedies: restitution of conjugal rights, judicial separation, a decree of nullity and divorce. Two ancillary reliefs help the spouse and children: maintenance and custody.

All are sought in the district court, or the Family Court where one exists. Section 23 sets conditions that every petitioner must meet, and the court must first try to reconcile the parties.

Legal provision

• Section 9: restitution of conjugal rights.
• Section 10: judicial separation.
• Sections 11 and 12: nullity of void and voidable marriages.
• Sections 13, 13A, 13B and 14: divorce, alternative relief, divorce by mutual consent and the one-year bar.
• Section 19: the court that may hear the petition.
• Section 21B: trial is to be speedy. The trial should end within six months of service of notice, and an appeal within three months.
• Section 22: proceedings are held in camera (in private) and may not be printed or published.
• Section 23: conditions for granting relief and the duty to attempt reconciliation.
• Sections 24 to 27: maintenance during the case, permanent alimony, custody of children and disposal of property.
• Section 28: appeals, to be filed within ninety days. Where a Family Court decides, the appeal period is thirty days.

Meaning and definition

A matrimonial remedy is a relief that a court gives to a spouse in respect of the marriage. It may keep the marriage together, suspend cohabitation, declare it invalid or end it.

• Matrimonial remedies
  • Keep the marriageRestitution of conjugal rights (section 9).
  • Suspend cohabitationJudicial separation (section 10).
  • Declare invalidNullity of void and voidable marriages (sections 11 and 12).
  • End the marriageDivorce (sections 13, 13A and 13B).

Detailed explanation

Step 1: the court and the petition

Every petition goes to a district court (section 19). The court must cover the place where the marriage was solemnized, the respondent resides, or the parties last resided together. When the wife petitions, it may cover where she resides. Where a Family Court is established, it exercises this jurisdiction. The petition must state the facts and that there is no collusion. The petitioner verifies it like a plaint (section 20). The Code of Civil Procedure applies as far as possible (section 21).

Step 2: speed and privacy

The trial runs from day to day as far as practicable (section 21B). Proceedings are held in camera, and publishing them is punishable with a fine up to Rs 1,000, except a High Court or Supreme Court judgment published with permission (section 22).

Step 3: conditions for relief (section 23)

The court grants relief only if all of these hold.

• A ground for relief exists.
• The petitioner is not taking advantage of his or her own wrong or disability.
• The petitioner has not been accessory to, connived or condoned the act complained of, for adultery. For cruelty, the petitioner has not condoned it.
• For mutual consent, the consent was not obtained by force, fraud or undue influence.
• The petition is not made in collusion, and there is no unnecessary or improper delay.
• There is no other legal ground to refuse relief.

Step 4: duty to attempt reconciliation

Before granting relief, the court must try to bring about reconciliation where possible (section 23(2)). It may adjourn for up to fifteen days and refer the matter to a person named by the parties or the court (section 23(3)). The duty does not apply to the grounds of conversion, mental disorder, venereal disease, renunciation of the world and presumed death.

Step 5: counterclaim and alternative relief

The respondent can make a counter-claim in a proceeding for divorce, judicial separation or restitution (section 23A). On a divorce petition, the court may grant judicial separation instead, except on the grounds of conversion, renunciation of the world and presumed death (section 13A).

Step 6: ancillary orders

• Maintenance pendente lite and costs: section 24, to be decided within sixty days of notice as far as possible.
• Permanent alimony: section 25, at the decree or later.
• Custody, maintenance and education of minor children: section 26.
• Joint property given at the time of marriage: section 27.

Step 7: appeals and enforcement

Decrees are appealable as decrees of original civil jurisdiction. Orders under sections 25 and 26 are appealable unless they are interim orders. No appeal lies on costs alone. The time limit is ninety days (section 28(4)). Where a Family Court decides, the appeal lies to the High Court within thirty days (Family Courts Act, 1984, section 19). Decrees are enforced like civil decrees (section 28A).

Exceptions and special rules

• One-year bar: no divorce petition may be presented within one year of marriage, except with leave for exceptional hardship or depravity (section 14).
• Transfer: where petitions are filed in different courts, they are dealt with together (section 21A).
• Customary and special laws: section 29(2) saves a right given by custom to dissolve a marriage.

Don't confuse: the remedies compared

Remedy	Section	Effect on the marriage
Restitution of conjugal rights	9	Orders the spouse to return; the marriage continues
Judicial separation	10	Ends the duty to cohabit; the marriage continues
Nullity	11, 12	Declares or makes the marriage invalid
Divorce	13, 13B	Ends a valid marriage

Common mistakes

• Writing that judicial separation ends the marriage. It does not.
• Mixing nullity with divorce.
• Forgetting the duty to attempt reconciliation under section 23(2).
• Leaving out the section 23 bars: own wrong, connivance, condonation, collusion and delay.

Apply it

Problem

Ravi petitions for divorce on the ground of the wife's cruelty. The court finds that the cruelty took place, but that Ravi has lived with her as husband for two years since, with full knowledge. Will the petition succeed?

Issue

Does condonation bar relief?

Rule

Section 23(1)(b) bars relief for cruelty if the petitioner has condoned it.

Application

Ravi forgave the wife and resumed marital life with full knowledge of the cruelty.

Conclusion

The petition fails, as in Dastane, unless the cruelty was revived.

Leading case laws

• Saroj Rani v. Sudarshan Kumar Chadha

  Facts. A husband got a decree of divorce under section 13(1A)(ii) after no cohabitation for a year following a restitution decree. The wife relied on a High Court ruling that section 9 is unconstitutional.

  Principle. The Supreme Court upheld section 9 as valid and affirmed the divorce.

  Why it matters. It settled that the remedy of restitution is constitutional.

• Dastane v. Dastane

  Facts. A husband sought annulment, divorce or judicial separation. Only judicial separation for cruelty reached the Supreme Court.

  Principle. Cruelty is proved on a preponderance of probabilities. The wife was cruel, but the husband condoned it and it was not revived.

  Why it matters. It applies the section 23 bar of condonation.

How to write this answer in the exam

Key points to remember

• Four main remedies: restitution, judicial separation, nullity, divorce.
• Section 23 conditions apply to all.
• Duty to try reconciliation under section 23(2).
• Proceedings are in camera (section 22).
• Appeal period is ninety days (section 28), or thirty days where a Family Court decides.

Quick self-test

Related topics

• Restitution of Conjugal Rights
• Divorce
• Role of Family Courts in Resolution of matrimonial disputes