Sie sind auf Seite 1von 17

Subject:Hindu Law

Topic: Hindu Law Jurisdiction


and Procedure in Matrimonial
Cases

Table of Contents
Introduction.........................................................4
Jurisdiction and Procedure-..................................4
Jurisdiction In Matrimonial Cases.........................5
Procedure In Matrimonial Cases.........................10
CONCLUSION
18
BIBLIOGRAPHY...................................................19
Introduction
In the modern life, the matrimonial home plays a very important place during
the subsistence of marriage as well as after its disruption. The battered wives
also need protection. We do not have any law in respect of either. England has
two statues on these subjects: the Matrimonial Home Act, 1976. The former
protects the rights of wife in the matrimonial home. The latter statue provides
her protection from domestic violence. It is now increasingly recognized that
wives need protection against the domestic violence; the domestic abuse may
include physical attacks as well as emotional assaults. We also need similar
statuses.

Jurisdiction and Procedure-

The Hindu Marriage Act, 1955, applies to Hindus, and it would appear that
whenever a person seeks the jurisdiction of the court under the Hindu Marriage
Act, he or she should be a Hindu. But in certain cases, a non-Hindu may also
invoke the jurisdiction of the court. Thus, where the petitioner is a non-Hindu
a Hindu who has converted to a non-Hindu faith may seek the jurisdiction of the
court in respect of a cause of action, which arose to him before his conversion.
A petition for divorce may be filed against a non-Hindu when the ground itself
is the conversion of the respondent to a non-Hindu faith.
Jurisdiction In Matrimonial
Cases
Section 19 of The Hindu Marriage Act, 1955 defines;

Court to which petition shall be presented.-Every petition under this Act shall
be presented to the district court within the local limits of whose ordinary
original civil jurisdiction-
(i) The marriage was solemnised, or
(ii) The respondent, at the time of the presentation of the petition, resides, or
(iii) The parties to the marriage last resided together, or
(iv) The petitioner is residing at the time of the presentation of the petition, in a
case where the respondent is, at that time, residing outside the territories to
which this Act extends, or has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard of him if
he was alive.

The court to which the petition is to be filed- The District Court.-


Section 19 of The Hindu Marriage Act 1955, lays down that a petition in any
matrimonial cause lies in the District Court.
Section 3(b) defines the District Court thus, in any area for which there is a
city civil court, that court, and inany other area the principal civil court of
original jurisdiction and includes any other civil court which may be specified
by the State Government, by notification in the Official Gazette, as having
jurisdiction in respect of the matter dealt with in this Act,. Thus, the District
Court means:
(i) Original side of the High Court in the Presidency towns, and
(ii) City Civil Court where it exists,
(iii) The court of District Judge at other places.
In addition to the above courts, or in lieu of them district court will also include
Government a subordinate court which has been invested with jurisdiction by a
State Government under a notification issued in the Official Gazette.

The court of Additional District Judge is not the principal civil court of original
jurisdiction. The District Court, under the Act, hears petition as personal
designata.

Under the Act, the District court has jurisdiction is parties are Hindus
irrespective of the fact whether they are domiciled in India or not.

The place where a petition may be filed.-Before the Marriage Laws


(Amendment) Act, 1976, was passed, some difficult cases came before the
courts and the parties were compelled to take recourse to the provision of the
Civil Procedure Code, particularly to its Section 20. In Gomathi v. Nataranjan 1,
the jurisdiction of the court was invoked within the jurisdiction. The Madras
High Court held that the Hindu Marriage Act, unlike the Divorce Act does not
oust the jurisdiction conferred on the civil courtsunder the Civil Procedure
Code, and therefore the Matrimonial court has power to exercise jurisdiction on
the basis of respondents residence. After the 1976 amendment, matrimonial
court can exercise jurisdiction on the basis of residence of respondent.
1. 1973 Mad 247.
Under Section 19, a petition in any matrimonial cause (Hindu Marriage Act
does not lay down different jurisdictional rules in respect of different
matrimonial causes) may be filed in the District Court within whose
jurisdiction.

(i) The marriage was solemnised, or


(ii) The respondent, at the time of the presentation of the petition, resides, or
(iii) The parties to the marriage last resided together, or
(iv) Or in case the petitioner is the wife where she is residing at the time of
presentation of petition, or

(v) The petitioner is residing at the time of the presentation of the petition, in a
case where the respondent is, at that time, residing outside the territories to
which this Act extends, or has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard of him if
he was alive.

Lex loci celebrationis, - Under the Hindu Marriage Act, the District Court
within whose jurisdiction the marriage was solemnized has the jurisdiction to
entertain a petition in any matrimonial cause. In a Hindu marriage, very
elaborate ceremonies are performed both at house of the bride and the
bridegroom. The District Court of that place will have jurisdiction where the
essential ceremonies are performed. Among Hindus, such ceremony Among
Hindus, such ceremonies are usually performed at the brides place. And that
seems to be the rationale of conferring jurisdiction on the basis of lex loci
celebrationis. However, in our contemporary times, marriages are sometimes
performed in a temple, dharamsala, hotel, panchayat bhawan or some other
place which is not necessarily the place of residence of the bride. In such cases,
the jurisdiction is vested in the court within whose jurisdiction the essential
ceremonies of marriage took place is situated.

Residence as the basis of jurisdiction. - Under clauses (ii), (iii) and (iv), a
petition for nullity, divorce, judicial separation or restitution of conjugal rights
may be filed on the basis of residence of the respondent, last joint residence of
both parties, question as to where last resided together is a question of both fact
and law and can be resolved by adducing recording evidence under Order 14,
Rule 2 of Code Of Civil Procedure or the residence of the petitioner. The key
word under all the three clauses is residence. In Janak Dulari v. Narayana 2,
soon after marriage the husband and wife love din Amritsar. After some time the
wife left the husband and went to live with her sister at Gurdaspur. The
husband,with a view to persuading his wife to return to matrimonial homewent
to Gurdaspur and stayed there for a few days. The court held that the last time
parties resided together was at Amritsar and not Gurdaspur. Howevershort the
stay may be at the matrimonial home that is enough. The India Courts have
expressed a view that if the parties have not established a matrimonial home or
a permanent home at any place, then the place where they stayed together last
would be the place where they last resided together. In Jeewanti v.
Kishan3,parties belonged to Almora, but were married in Delhi and resided
together in Delhi for some time, the Supreme Court held that District Judge
Almora, had no jurisdiction to entertain the nullity petition.

In case when both the spouses are employed at different place and they have
made a working arrangement under which they visited each other and thus lived
together, they obviously set up establishment at both place. Then which will be
the place where they reside or last resided together?

2. 1959 Punj 50.


3. 1982 SC 3..
The question came up before the Punjab and Haryana High Court in Pritima
v.Mohinder4. The court observed, Such visits of the wife or the husband cannot
be termed as casual or flying. On the other hand, such visits though be termed
as temporary visits by both the spouses, come within the meaning of the word
resides and the word resided. In this case before the disruption of marriage,
the husband has resided at the wifes place. The court held that wifes place
would be deemed to be the place where parties last resided together, and the
court at the wifes place would have jurisdiction to try the divorce petition.

But after Amendment of 2003 wife can file the petition at the place where she is
residing on the date of presentation of petition. She cannot be compelled to
move and application under Section 25 or 27 in court which had earlier an ex
partedecree of divorce.

The Supreme Court has held that once the court decides that it has no
jurisdiction it cannot proceed on the merits of the case.

4. 1984 P&H 305.


PROCEDURE IN
MATRIMONIAL CASES
Sections 19 to 28 are placed in the Act under the title, jurisdiction and
procedure. To these groups, Sections 21-A, 22-B, 21-C, 23-A, and 28-A have
been added by the Marriage Laws (Amendment) Act, 1976. Among these
sections some deal with substantive matters;

(a) Section 23 deals with bars to matrimonial relief and reconciliation,


(b) Sections 24-27 deal with the ancillary reliefs of interim and permanent
maintenance, custody, etc. of children, and settlement of the property
jointly presented to the spouses at the time of marriage. It is the
remaining sections which deal with procedure.

Section 19 which deals with jurisdiction that have been discussed above. The
remaining Sectionsthat deal with the procedure of matrimonial cases with the
relevant High Court Rules framed under the Hindu Marriage Act, 1955.

The procedure under the Act is regulated by the specific provisions of the Act
and the rules framed by the various High Courts under the Hindu Marriage Act,
1955, supplemented by the provisions of the Civil Procedure Code so far as they
are applicable.

Particulars in the petition and its verification.-Section 20 lays down that in


every petition the facts on which relief is sought should be stated as distinctly as
the nature of the case permits. The High Court rules further provided that the
following facts must be stated specifically: date and place of marriage, the
name, status and domicile of parties, the principal permanent place where the
parties cohabited and the address where they last resided together, and the
names of the children of the marriage, if any, together with their date of birth,
and full particulars of any prior proceedings between the parties to the petition
and their outcome. The High Court Rules lay down that the particulars of any
prior proceedings in reference to the marriage of the parties should be of the
proceeding filed in India. In our submission, if proceedings have been filed
abroad, particulars should be given. In reference to certain specific grounds
some specific particulars are required to be given, such as when the ground is
adultery, the adulterer is a necessary party and should be taken in pleading. It is
necessary that all material facts and grounds must be stated in the petition, and
if a petitioner omits a ground, it cannot be taken in replication. In such a case
petition should be amended.

A petition in a matrimonial cause has to be verified in the same manner as a


plaint is required to be verified under the Civil Procedure Code.

Alternative and contradictory pleas and relief. -In pleadings, parties often
make alternative and contradictory pleas. This is often done in matrimonial
pleadings also. Section 13-A specifically provides for alternative relief in
divorce proceedings. But the section covers certain specific cases. However,
under Order 6, Rule 2 and Order 7, Rule C.P.C an alternative relief can be
granted in cases not covered by Section 13-A. but contradictory pleadings
cannot be taken up. Alternative plea of divorce or restitution can be taken up.
Pleading should be specific.
Co-respondent and intervener. -It has been laid down in the High Court Rules
that when a petition for judicial separation or divorce is based on the grounds of
respondents adultery, then the alleged adulterer or adulteress should be made a
party to the petition, unless the alleged adulterer or adulteress is dead, or his or
her name is not known to the petitioner or for any reason the court considers
that he or she need not be made a co-respondent.

In Sarla v.Shakuntala5, the Punjab High Courtexpressed the view adulteress who
is required to be made a co-respondent is neither a necessary nor a proper party.
It is submitted she is certainly a proper party, otherwise the petitioner may
violate the Rule with impunity.

Some of the High Court Rules provide that on the application of the petitioner,
the court may award damages against the co-respondent. It is submitted that the
absence of the specific provisions, the court has no inherent power to award
damages against the co-respondent.

Cross-petition and stay of proceedings. -Under the Hindu Marriage Act.1955


a co-respondent may not merely oppose the petition by denying the averments
made in the petition, but he may also oppose the relief on the ground of
petitioners adultery, cruelty, or desertion and may take a counter claim for a
matrimonial relief on any one or more of these grounds. Section 23-A
specifically empowers the court to give the resident relief to which he or she
would have been entitled had he been a petitioner. But if no counter relief is
claimed, then no matrimonial relief can be granted even if the ground for such a
relief is established.

5. 1966 Punjab 337.


In C.Sannaih v. Padma6, the Karnataka High Court observed that the wifes
application for alimony and maintenance for herself and the children in the
husbands petition for restitution of conjugal rights may be treated as a counter
claim. It is submitted that this is not a correct view. An application for alimony
and maintenance for herself and children is merely an application for ancillary
relief.

In a petition for maintenance under Hindu Adoptions and Maintenance Act, no


petition for counter claim of divorce can be made.

Stay of proceedings. -In some situations in the matrimonial petition, stay of


proceedings may be sought by either spouse. The Hindu Marriage Act or the
High court Rules do not contain any provision in this regard, but stay of
proceedings may be obtained under Section 10 read with Order 41, Rules 5 and
6, C.P.C. as well as under the inherent jurisdiction of the court under Section
151, Civil Procedure Code. We have already seen that if the petitioner against
whom an order for interim maintenance has been made does not comply with it,
the court has power to stay the proceedings, or strike out the defence.

Joinder of petitions, transfer of petitions and trials. - It is possible that a


spouse presents a petitionin the court for divorce or any other matrimonial
relief, and subsequently the other spouse also presents a petition for divorce or

6. 1983 Kant 114


other matrimonial relief in the same court or in a different court. Under the
CPC, the civil courts have power of joinder of causes of actions, but the power
is limited. Section 21-A, Hindu Marriage Act provide that when both the parties
present petitions in the same court, they should be joined and heard together.
Where petitions are presented in different courts or in courts at different places,
the section provides that the trial will be held at the court where the first petition
was presented and the second court has power to transfer the petition before it to
the first court. Section 21-A does not apply Section 24, CPC will apply.

Section 21-B provides for a day to day trial of the petition, and lays down that
the trial court within six months from the date on which summons are served on
the respondent. Similarly, it has been provided that appeals should be disposed
of within three months from the date on which notices of appeal are served on
the respondent.

Evidence. -Under Section 21-C, unstamped and unregistered documents have


been made admissible for the purpose of evidence in matrimonial causes.

Hearing in camera. -Section 22 provides that the hearing in matrimonial cases


shall be in camera, and that any matters relating to such proceedings cannot be
published or printed without the prior permission of the court. Any judgement
of the High Court or the Supreme Court in any matrimonial matter under the
Act may be published with the prior permission of the court.
Enforcement of decrees and orders. - Section 28-A lays down that all decrees
and orders made by the court in any proceedings under the Hindu Marriage Ac
shall be enforceable in like manner as the decrees and orders made in the
exercise of the original civil jurisdiction are enforceable. A judgement
pronounced by competent court in a matrimonial cause determining the status of
parties but also against the whole world.

Appeals. - Section 28 lays down that appeals may be made against all orders
and decrees passed under the Hindu Marriage Act except as against all the
interim order and orders and decrees for costs only. The period of limitation for
appeals and orders is 90 days.

Provisions of Sections 55 and 7, Limitation Act, apply to appeals under Section


28, Hindu Marriage Act. In Kamla v. Ramdas 7, the Bombay High Court
expressed the view that an appeal pending in the appellate court does not abate
on the death of the appellant.

A letters patent appeal is also maintainable against the judgement of a single


judge of the High Court.

It has further been held that remarriage should not be done before expiry of
period for SLP. In the instant case, the husband had remarried within that and
wash held liable to pay Rs. 5 lacs to the wife.

7. 1981 Bom 239;


Remarriage after the expiry of period for appeal is valid. Filing of appeal
beyond that period is maintainable.

Remarriage during the Pendency of Appeal


In Veena v. Romesh8, the Punjab and Haryana High Court held that if one of the
parties to marriage marry during the pendency of appeal, the appeal does not
become infructuous. In a strongly worded judgement it has been held that
remarriage during the pendency of appeal is wilful disobedience to other
process of law and a civil contempt.

Dismissal of petitions under Order 39, Rule 8, Civil Procedure Code.-

When petition is dismissed in a matrimonial cause under Order 9, Rule 8, CPC,


a new position may be filed; it is not barred by Order 9, an ex parte decree can
be set aside under Order 9, Rule 13, CPC but the Gauhati High Court takes a
contrary view.

8. 1955 P & H 213


Pending cases- Application of the Marriage Laws (Amendment) Act, 1976.-

Section 39(2), Marriage laws (Amendment) Act, 1976, lays down that an
amended provision of the Hindu Marriage Act will apply to pending cases.
Thus, a petition for judicial separation on the ground of cruelty can be amended
even at the appellate stage and prayer for dissolution of marriage can be made.

Substitution of legal representative. - An action in a matrimonial cause is a


personal action. On the death of a party, his or her legal representative cannot be
substituted.

Reference to arbitration. - Since a judgement in matrimonial cause is a


judgement in rem, matrimonial matters cannot be decided by a reference to
arbitration.
CONCLUSION
To conclude the researcher observe that in the modern life, the matrimonial
home plays a very important place during the subsistence of marriage as well as
after its disruption. The battered wives also need protection. We do not have any
law in respect of either. England has two statues on these subjects: the
Matrimonial Home Act, 1976. The former protects the rights of wife in the
matrimonial home. The latter statue provides her protection from domestic
violence. It is now increasingly recognized that wives need protection against
the domestic violence; the domestic abuse may include physical attacks as well
as emotional assaults. We also need similar statuses.