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FAMILY LAW I – FINAL SUBMISSION

IMPORTANCE OF SECTION 14 OF HINDU MARRIAGE


ACT 1955

Submitted by-
UTKARSH GUPTA

DIVISION: D || PRN: 17010223116 || BATCH: 2017-22

of Symbiosis Law School, Noida


Symbiosis International (Deemed University), Pune

In AUGUST, 2018

Under the guidance of

Srishty Banerjee
(Asst. Professor)
Symbiosis Law School, Noida
CERTIFICATE

The project entitled “IMPORTANCE OF SECTION 14 OF HINDU MARRIAGE


ACT 1955” submitted to the Symbiosis Law School, NOIDA for Special
Contract as part of Internal assessment is based on my original work
carried out under the guidance of Srishty Banerjee and from July 2018
to October 2018. The research work has not been submitted elsewhere
for award of any degree.

The material borrowed from other sources and incorporated in the


thesis has been duly acknowledged.


I understand that I myself could be held responsible and accountable for


plagiarism, if any, detected later on.







Signature of the candidate
 


Date: 29th of August, 2018


ACKNOWLEDGEMENT 

I would like to express my special thanks of gratitude to my faculties
Srishty Banerjee as well as our institute Symbiosis Law School, Noida
who gave me the golden opportunity to do this wonderful project on the
topic ” IMPORTANCE OF SECTION 14 OF HINDU MARRIAGE ACT 1955”, which also
helped me in doing a lot of research and I came to know about so many
new things I am really thankful to them.


Secondly, I would also like to thank my parents and friends who helped
me a lot in finalizing this project within the limited time frame.
INDEX

1) Introduction

2) Abstract

3) Keywords

4) Historical Perspective

5) Legislative Provision

6) Landmark Judgement

7) Research Question

8) Conclusion

9) Bibliography
INTRODUCTION

Section 14 of Hindu Marriage Act 1955 — No petition for divorce to be presented within one year
of marriage

Under Hindu Marriage Act, divorce can be sought from the Family Court under Section 13 of
Hindu Marriage Act however the divorce petition is maintainable only after the expiry of ONE
YEAR from the date of the marriage. But there is provision under Section 14 of the Act which
empowered the Court to waive off this one year period under exceptional circumstances. The
petitioner has to give some cogent reasons for waiving off this period. In case the petition is filed
within one year from the date of the marriage, the court may dismiss it as not maintainable or may
adjourned till date when one year period is going to expiry

According to this section no court shall entertain a petition for divorce before the expiration of a
period of one year from the date of marriage.

The section also provides that the court could entertain a petition even before the expiry of one
year in cases of exceptional hardship to the petitioner or exceptional depravity of the respondent.
Sub-section (2) of Section 14 provides that the interests of the children born of the marriage and
the chances of reconciliation between the parties are also be kept in view by the court while
deciding an application under this Section.

ABSTRACT

Marriage is basic foundation of the family as well as society, without which, no civilization can
exist. The institution of marriage is very important for any civilized and cultured society. The
institution of marriage is deeply rooted in the society like India. Thus, we are at the threshold o
third millennium. We claim to have crossed thousands of years of human civilization. Still it
appears to be in the first lap of the run for attaining complete civilization. It means that although
we consider ourselves to be modern people but the fact remains otherwise. In Indian society which
is chained by orthodox traditions, superstitious, myths and beliefs, there are teeming millions who
have suffered most – the woman being exploited from time immemorial, socially, economically
physically, psychologically and sexually. Sometimes in the name of religion, by virtue of social
sanctions, regularly by sheer lust and insatiable greed.
For taking a divorce the Indian law prescribes that divorce can be sought by either of spouse after
1 year of marriage. However, section 14 of the Hindu Marriage Act prescribes that this period is
not mandatory and can be waived off by the court on the reasonable grounds and if marriage is
beyond repair.

It is grounded on public policy because marriage is the foundation of civil society and no part of
the laws and Constitution of a country can be of more vital importance to its subjects than those
which regulated the manner and conditions of forming and, if necessary, of dissolving marriage
contract.

KEYWORDS

Exceptional Hardship

Exceptional Depravity

Divorce

Sexual Intercourse

Custody of children

One Year

HISTORICAL PERSPECTIVE

Under the uncodified Hindu law, divorce was not recognized, unless it was allowed by custom.
The reason was that, a Hindu marriage was an indissoluble tie between the husband and the wife.
However painful cohabitation may be, divorce was not accepted by the old law. In some
communities, such customs fulfilled the requisites of a valid custom. The term ‘divorce’ comes
from the Latin word ‘divortium’ which means ‘to turn aside’, ‘to separate’. Divorce is the legal
cessation of a matrimonial bond.

Divorce puts the marriage to an end, and the parties revert back to their unmarried status and are
once again free to marry. All rights and mutual obligations of husband and wife ceases. In other
words, after a decree of dissolution of marriage, the marriage comes to an end and the parties cease
to be husband and wife, and are free to go their own ways. There remain no bonds between them
except in relation to Section 251 and Section 262 of Hindu Marriage Act, 1955.

The Hindu Marriage Act, 1955 permitted divorce to all the Hindus on certain reasonable grounds.
Perhaps this permission was given for the first time in the history of Hindu law. The Act of 1955
also saved the customs and special legislation granting the dissolution of marriage before its time.

In the Neolithic age, the question in mind is that the sanctity of marriage should not be tumbled
with and that a husband and a wife should at least spend a period of 1 year before they can file for
divorce or not as the marriage had been conducted recently and filing for a divorce may not be the
appropriate method as the couple should know each other more and so a judicial separation was
allowed and only after filing for divorce under mutual consent under section 13B3, a period of 6
months is allotted only after which the couple can proceed for divorce because there can be cases
of exceptional hardships or exceptional depravity.

In Hindu law marriage is regarded as a tool for procreation but if there is no sex within a year of
marriage and so as to that, the petitioner for divorce however cannot claim for divorce under
mutual consent even if both the parties agree but can plea for exceptional depravity and
exceptional hardship or in cases of mental illness and cruelty, it can also be taken into account for
exceptional hardship and exceptional depravity as in a decision by Kerala High Court4, Appellants
have pointed out that there was lack of mutual co-ordination and during matrimonial life there was
not a single instance of love and affection between the parties. It is clear that the case is one of
exceptional hardship to them, the couple got divorced within months of marriage as they had no
sexual intercourse and were not affectionate for each other at all.

LEGISLATIVE PROVISION

Provisions regarding bar of an year for divorce to be taken for a marriage are as such not available
but as for the regard where adultery is there as exceptional hardship or exceptional depravity. It
can come under the gambit of Indian Penal Code, 1860 under the guise of Section 497 and so on
different provisions regarding different offences in IPC and CrPC5.

1
Permanent alimony and maintenance.
2
Custody of Chilren
3
Divorce by mutual consent
4
Deepak v Aswathy, AIR 2013 KERALA 230
5
Code of Criminal Procedure
LANDMARK JUDGEMENTS

Vinod Arora v. Manju6

In Vinod Arora v. Manju, the Delhi High Court observed that the hardship which entitles spouse
to move an application under Section 14 of the Act has got to be exceptional. Mere fact that after
three days of marriage, the wife refused to have any sexual intercourse with the husband or that
she used to remain absent from the matrimonial home without any reasonable cause or excuse,
would not be sufficient to make out a case of exceptional hardship so as to entitle him to move the
petition for dissolution before the expiry of one year from the date of marriage.

Meghanatha v Sushila AIR7

A wife had filed petition within the period of three years on the ground that soon after the marriage,
she had discovered that her husband already had a wife and a child, she was allowed to do so,
following the English case Bowmen v. Bowmen, the Court held that this case gave some guidance
in considering what could be treated as exceptional hardship or depravity.

Saudamini Lenka alias Mohapatra v. Khageswar Lenka8

A petition for divorce was filed by the husband within one year of marriage in usual course under
Section 13 of the Hindu Marriage Act 1955, and family court passed the decree. On appeal, the
same was set aside, as there was no pleading regarding ‘hardship’ much less exceptional hardship.
There was nothing on evidence to show exceptional depravity on the part of the wife. According
to the court, the court must be satisfied that exceptional hardship will be caused to a party if the
divorce petition is not entertained before completion of one year of marriage.

6
AIR 1982 DEL 592.
7
1957 Mad 423.
8
(2001) 1 Femi-Juris CC 246 (AP).
RESEARCH QUESTIONS

Petition for divorce after 6 months of separation of a marriage when the


marriage has not been registered.

Although Hindu law does not contemplate divorce, yet it has been held that it is recognized as an
established custom. A divorce petition cannot be filed under the circumstances where a marriage
hasn’t even been registered as there is no marriage constituted and the it’s null and void to go for
divorce but if the marriage has been recognised under Section 79 of the act by performing the
rituals and customs in a Hindu marriage, the marriage is a valid marriage.

The marriage on performance of the rites/customs/rituals can be regarded as a valid marriage and
now for divorce to be claimed after 6 months of separation which can be judicial separation too in
a case put so forward, where judicial separation was given after a period of 6 months of marriage
or so after, divorce can be granted on the basis of Section 1310 of the act and Section 14 will not
apply in the scenario but if the period of separation is completed before an year, then Section 14
will apply as period of one year hasn’t been completed yet and judicial separation was granted
under Section 1011 of the act, divorce in such case can only be granted under the circumstances of
exceptional hardship or exceptional depravation.

Scope of expressions “Exceptional Hardships” and “Exceptional Depravity” in


the Hindu Marriage Act 1955

The expressions “Exceptional hardships” and “exceptional depravity” have not been explained in
the Act. The scope of these expressions is very extensive and they are pregnant with the sense of
uncommonness and covered with extraordinary situations. Hence where the petitioner is faced
with such hardships that his or her life has turned to be a complete hell or the respondent has
committed such a heinous moral offence that it has become completely intolerable to the petitioner

9
Ceremonies for a Hindu marriage.-(1) A Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, the 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.
10
Divorce
11
Judicial Separation
it would be possible to pass a decree for divorce without waiting for the expiry of the stipulated
period of one year.

Meganathan Nayagar v. Shrimathi Susheela, referred to a English case of Bowman v. Bowman


which has laid down some principles in considering what could be treated as exceptional hardship
or depravity, these are as follows:

(i) Adultery with one person is not exceptional depravity.

(ii) Adultery plus desertion by the husband in favour of another woman or plus cruelty to his
wife constitutes exceptional hardships to the wife.

(iii) Apart from adultery coupled with another matrimonial offence the consequences of
adultery may cause exceptional hardship e.g. when a wife has a child by her adultery.

(iv) If a husband commits adultery within a few weeks of his marriage, or promiscuously or
with his wife's sister or a servant in the home, that may be held to be exceptional depravity.

(v) Cruelty coupled with aggravating circumstances e.g. drunkenness, and neglect may be
exceptional hardship on the aggrieved spouse, or if coupled with perverted lust amount to
exceptional depravity by the proposed respondent.

(vi) Everything reasonable should be done towards reconciliation.

So, these terms are required to be judged by the courts in the light of facts and circumstances. S.
14 confers a discretionary power upon the court but this discretion must be exercised reasonable
and not rationally. Apart from it, the matrimonial bar, Hindu Marriage Act 1955 also provides
statutory bars to institute a suit for seeking any matrimonial relief from the court. These bars are
given with specific purpose of protecting the marital ties between husband and wife.
Custody of child to be given to the petitioner or the respondent in case the
divorce is granted under Section 14 of the Hindu Marriage Act 1955 under the
circumstances of Exceptional Hardship or Exceptional Depravity

According to sub-section (2), in deciding any application under sub-section (1), the court must
have regard to the interest of children born of the wedlock and the question whether there is
reasonable probability of a reconciliation between the parties. These considerations are extraneous
to the consideration of exceptional hardship or depravity. In every situation, the possibility of
reconciliation has to be given primary.

Even when the relations between the spouses may be strained and there may be no immediate
prospect of reconciliation, still the interest of the child should be given paramount consideration.
In the field of matrimonial relationship, a purely mechanistic and formal approach’s is not called
for. One has to view and perform this task in a broad perspective.

Child custody comes under section 26 meaningful relief to the parties without too much of legal
case, depending on the circumstances of the case. of the Hindu Marriage Act where in cases of
Domestic Violence or other divorce cases where custody was to be provided was generally given
to the mother as it is believed that mother is the first guardian of the child and that the child is
more emotionally attached with the mother parent.

CONCLUSION

The one year embargo provided in Section 14 of the act does not apply to petitions for annulment.
Thus, where a wife filed a petition or annulment alleging non-consummation of marriage owing
to husband’s impotency within a year of marriage, the same was held not to be barred.12 This can
be held to a case of exceptional hardship where divorce was granted.

There are many instances under Section 14 where divorce as not granted due to the underlying
clauses in it, while the ideas behind the above mentioned bar of not granting divorce before an
year of marriage has been passed or granting divorce under the circumstances of exceptional
hardship or exceptional depravity before a period of one year is passed, is to ensure that the guilt
party does not take advantage of its own wrong, the innocent party is not exploited and the court

12
Ravanaapalli Yogamma v T Venkatraman, AIR 1998 AP 371
process is not misused, the end objective of every law and process is to impart justice and
meaningful relief to the parties without too much of legal case, depending on the circumstances.

BIBLIOGRAPHY

1) Agnes F, Family Law and Constitutional Claims Family Law Vol. 1. 1st ed. (New Delhi:
Oxford University Press, 2013)

2) Derrett, J. A critique of modern Hindu Law. (Bombay, N.M. Tripathi 1970)

3) Divorce within year of marriage for hardship, available at:


https://www.hindustantimes.com/mumbai/divorce-possible-within-year-of-marriage-for-
hardship/story-07YT8s8dz64nM4IjT3UDLM.html (Visited on 22 August,2018)

4) Dr. Neera Bharihoke, Modern Hindu Law. (Delhi Law House, 1st edition 2008)

5) Immediate divorce if sex is totally absent, available at:


https://timesofindia.indiatimes.com/india/Immediate-divorce-if-sex-is-totally-absent-rules-
Kerala-high-court/articleshow/19833677.cms (Visited on 24 August, 2018)

6) Judgements on Section 14 of Hindu Marriage Act, 1955, available at:


https://www.legalcrystal.com/cases/search/name:hindu-marriage-act-section-14 (Visited on
25 August, 2018)

7) Universal Law Publishing, The Hindu Marriage Act 1955, (Lexis Nexis, Delhi, 2018)

8) U.P.D. Kesari, Modern Hindu Law (Central Law Publication, Ed. 8th, 2011)

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