Marriage and Divorce Law

Procedure

Cruelty has not been defined in the Act. It is certainly not restricted to physical cruelty. Words, at times, do cause more damage than physical violence. The element of intention is a sine qua non for establishing a case for divorce on ground of cruelty. Besides intention other factors have relevance in determining the question. The considerations of entire, facts, circumstances of the particular case including the culture, temperament and status in life of the parties are other factors.

Where one of the parties to the marriage tie indulges in reprehensible conduct and depart from the normal standards of conjugal kindness, a finding of cruelty against it, may be recorded so, where intention to be cruel can be found as a fact the importance of its relevance, can not, be denied.

In petition under Section 13 (1) (ia), only those allegation of cruelty can be looked into, which have been pleaded in the pleadings. Evidence of those instances of cruelty will not be considered, which have not been put forward in pleadings. There should be specific allegations of cruelty with sufficient details averred in pleadings to as to enable the other party to meet those allegations. It must be pleaded that respondent created and caused such conditions which became so intolerable that it was impossible for the petitioner to continue to live with the respondent.

Hindu marriage from its inception is considered to be Sanskar based upon Karma and is irrevocable. The woman folk in general fund the Hindu woman in particular in this country has all along been treated as chattels,. In order to protect the rights of the weaker section of the society and forced by socio-political upheavals in the world generally and in the country particularly the State was forced to enact, amend, modify and codify law relating to marriage amongst Hindus. The Central Hindu Marriage Act was passed which regulated the marriages of Hindus, which concerned certain rights and imposed certain obligations.

Keeping in view the peculiar socio-political economic system in the country, provision was made that no party to marriage is allowed to take the advantage of his or her own wrong and defeat the very concept of Hindu Marriage Act which was before the enactment of the Act, a Sankar based upon karma.

Section 23 (1) (b) of the Act provides that if the Court was satisfied that any ground for granting relief existed and the petitioner was not in any way taking advantage of his or her own wrong or disability for the purpose of the relief and where the ground of the petition was cruelty, the petitioner had not in any manner condoned the cruelty, then the Court could pass the decree for the relief sought by the petitioner.

The section casts a duty on the Court before whom the proceedings under the Act are pending to satisfy itself that the conditions of Section 23 (1) (b) does not exist before granting any decree. The Court is not absolved of its duty even in proceedings which are taken ex-parte. The principle contemplated by this section is based on the rule that wrong doer should not be permitted to take advantage of his or her own wrong or disability while seeking relief at the hands of the court. It is also based upon well-established principle of Matrimonial Law that decrees relating to a marriage should be based upon strict proof.

The words ‘if the Court is satisfied’, cast a duty upon the Court to satisfy not only with respect to the claim of the petitioner under a particular section of the Act but also that the petitioner was not in any way disentitled to the relief prayed for.

It follows therefore, that in a proceedings for obtaining a relief of divorce on ground of cruelty the petitioner has to prove firstly the existence of the facts upon which he or she claims divorce and secondly to satisfy the Court that he/she was not taking advantage of his/her own fault and had not incurred disability by condoning the act (s) complained of.

Hindu Marriage Act, 1955 Delhi High Court Rules (Practice and Procedure) Rule 9 makes it mandatory on the petitioner to file an affidavit with the petition that the act of cruelty has not been condoned. The rule is framed by the High Court in exercise of the powers conferred by Sections 14 and 21 of the Act. The Rule has been framed to regulate the proceedings under the Act.

The Procedure Rules regarding the filling of affidavit can not be said to be mandatory in nature so as to render a petition under the Act not maintainable as the rights of the parties are to be determined not on mere technicalities or procedural law but on the provisions of the substantive law governing them. Moreover the Rules of Procedure serve as a hand mind of justice and cannot be allowed to penalize the parties. When the petition contains assertions regarding non-condonation of the respondent’s acts of cruelty and the petition stands duly verified, the omission of filing the affidavit in respect of assertions fades in to significance and can not be allowed to adversely affect the maintainability of the petition as the object of Rules and Procedure is to decide the rights of the parties and not to punish them for their mistakes or short-comings. Pleadings are not statutes and legalism is not verbalism. Common senses should not be kept in cold storage when pleadings are construed. It is too plain for words that petition were in writing. So, the law should not be stultified by courts by sanctifying little omissions as fatal flaws. Parties win or loose on substantial questions, not ‘technical tortures’ and courts cannot be abettor. Thus the omission in respect of filing the non-condonation affidavit along with the divorce petition does not appear to be fatal to the petition because the filling of an affidavit in only a matter of procedure and it looses its rigour when the petition itself makes a specific averment and verification is appended to the petition. Rules of procedure are meant only as a handmaid of justice and not to inflict causality thereto.

Latest Press Reports
Share Pain of Little Vishesh Gupta

PIL in Hon'ble Delhi High Court

Inspiration of The Month

Shocking Condition of Pediatric Surgery in India

Marriage & Divorce Law
Company law
Constitutional Law
Partnership Law
Criminal Law
Labour Law
Civil & Property Law
Copyright & Trademark
Consumer Law
MRTP
 

RAKESH PRABHAKAR & COMPANY
ADVOCATE AND SOLICITORS 
321, LAWYER CHAMBERS , WESTERN WING ,TIS HAZARI COURTS , DELHI – 110054
Ph : +91 - 11- 23925815 ,  32429638 , Fax : +91 - 11- 23991158 ,  Cell : 9811332229
E-mail : info@rprabhakar.com

 Home   |  About us   |  Disclaimer   |  Area of Practice   |  Laws  |  Laws Link  |  Social Services  |  Contact us  |  E Mail  |  Sitemap