Section 23 – Hindu Marriage Act – Decree In Proceedings.

Code:

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that:

(a) any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b), or sub-clause (c) of clause (ii) of section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud, or undue influence, and

(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted,

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties:

[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi), or clause (vii) of sub-section (1) of section 13.]

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

Explanation:

This section outlines the criteria for a court to grant relief in a Hindu marriage proceeding. This relief can include divorce, judicial separation, nullity of marriage, or restitution of conjugal rights. The court will only grant relief if it is satisfied that:

• (a) Ground for Relief Exists: The petitioner must prove that one of the grounds for seeking relief under the Act is present. The petitioner cannot benefit from their own wrongdoing or disability, except in specific cases mentioned in the Act.
• (b) No Connivance or Condonation: If the ground for the petition is adultery, the petitioner cannot have been complicit, knowingly tolerated, or forgiven the adultery. In cases of cruelty, the petitioner must not have condoned the cruelty.
• (bb) Genuine Consent (Divorce by Mutual Consent): In cases of divorce by mutual consent, the consent must be genuine and not obtained through force, fraud, or undue influence.
• (c) No Collusion: The petition must not be filed or pursued in collusion with the respondent.
• (d) No Undue Delay: There should not be any unreasonable delay in initiating the proceedings.
• (e) No Other Legal Hindrance: There must not be any other legal reason why relief should not be granted.

Further, the court is obligated to attempt reconciliation between the parties before granting relief, if possible, except in cases involving specific grounds under Section 13(1) of the Act.

Illustration:

Imagine a wife filing for divorce on grounds of her husband’s adultery. The court would examine:

• Is there evidence of adultery?
• Did the wife condone or knowingly tolerate the adultery?
• Is there any collusion between the wife and a potential co-respondent?
• Has the wife unreasonably delayed in filing for divorce?
• Are there any other legal reasons why divorce should be denied?

If the court is satisfied with the evidence and finds no legal impediments, it may grant the divorce. However, the court would first attempt reconciliation unless the wife sought divorce based on specific grounds like cruelty, desertion, etc.

Common Questions and Answers Regarding the Code:

Q: Can a petitioner benefit from their own wrongdoing to get a divorce?

A: Generally, no. The petitioner must be innocent or not taking advantage of their own wrong to obtain relief. There are exceptions, however, for specific grounds like cruelty or desertion.

Q: What if the petitioner condoned the adultery or cruelty?

A: The court is unlikely to grant relief if the petitioner condoned the actions forming the basis of the petition.

Q: What is the role of reconciliation in divorce proceedings?

A: It’s mandatory for the court to attempt reconciliation whenever possible, except for specific grounds like cruelty, desertion, etc.

Q: Can a petition be filed in collusion with the respondent?

A: No, the petition must be genuine and not a result of collusion.