Subject:Hindu Law Topic: pic: Hind Hindu u Law Law Juri Jurisd sdic icti tion on and and Proced edur uree in Matr Matriimon monial ial Cases
Table of Contents
Introduction.........................................................4 Jurisdiction and Procedure-..... Procedure-............. ................ .............. .......... ....... ...4 4 Jurisdiction In Matrimonial Cases........... Cases... .............. .......... ........ ....5 5 Procedure In Matrimonial Cases.........................10 CONCLUSION……………………………………………… …………………… 1 !I!LIO"# !I!LIO"#$P%&.... $P%&......................... ...............................................1' ..........................1'
Introduction In the modern life, the matrimonial home plays a very important place during the subsistence of marriage as well as after its disruption. The battered wives also need protection. We do not have any law in respect of either. England has two statues on these subjects: the Matrimonial ome !ct, "#$%. The former protects the rights of wife in the matrimonial home. The latter statue provides her protection from domestic violence. It is now increasingly recogni&ed that wives need protection against the domestic violence' the domestic abuse may include physical attac(s as well as emotional assaults. We also need similar statuses.
Jurisdiction and ProcedureThe indu Marriage !ct, "#)), applies to indus, and it would appear that whenever a person see(s the jurisdiction of the court under the indu Marriage !ct, he or she should be a indu. *ut in certain cases, a non+indu may also invo(e the jurisdiction of the court. Thus, where the petitioner is a non+indu a indu who has converted to a non+indu faith may see( the jurisdiction of the court in respect of a cause of action, which arose to him before his conversion. conversion. ! petition for divorce may be filed against a non+indu when the ground itself is the conversion of the respondent to a non+indu 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 !ct 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 the marriage last resided together, or -iv The petitioner is residing at the time of the presentation of the petition, petition, in a case where the respondent is, at that time, residing outside the territories to which this !ct e/tends, 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 istrict Court!Section "# of The indu Marriage !ct "#)), lays down that a petition in any
matrimonial cause lies in the 0istrict 1ourt. 2ection 3-b defines the 0istrict 1ourt thus, 4in 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 2tate 5overnment, by notification in the 6fficial 5a&ette, as having jurisdiction in respect of the matter dealt with in this !ct,7. Thus, the 0istrict 1ourt means:
-i -i -ii -ii -iii -iii
6rig 6rigin inal al side side of the the ig igh h 1ou 1ourt rt in the the 8re 8resi side denc ncy y tow towns ns,, and and 1ity 1ity 1ivi 1ivill 1our 1ourtt wher wheree it e/is e/ists ts,, The The court court of 0is 0istr tric ictt 9udge 9udge at oth other er pla place ces. s.
In addition to the above courts, or in lieu of them district court will also include 5overnment a subordinate court which has been invested with jurisdiction by a 2tate 5overnment under a notification issued in the 6fficial 5a&ette.
The court of !dditional 0istrict 9udge is not the principal civil court of original jurisdiction. The 0istrict 1ourt, under the !ct, hears petition as personal designata. designata.
nde nderr the the !ct, ct, the the 0ist 0istri rict ct cour courtt has has juri jurisd sdic icti tion on is part partie iess are are ind indus us irrespective of the fact whether they are domiciled in India or not.
The plac placee whe herre a pe peti titi tio on ma$ be file filed! d!-- *efo *efore re the the Marr Marria iage ge ;aws ;aws
-!mendment !ct, "#$%, was passed, some difficult cases came before the courts and the parties were compelled to ta(e recourse to the provision of the 1ivil 8rocedure 1ode, particularly to its 2ection <=. In 5omathi v. >ataranjan " , the jurisdiction of the court was invo(ed within the jurisdiction. The Madras igh 1ourt held that the indu Marriage !ct, unli(e the 0ivorce !ct does not oust the jurisdiction conferred on the civil courtsunder the 1ivil 8rocedure 1ode, and therefore the Matrimonial court has power to e/ercise jurisdiction on the basis of respondents residence. !fter the "#$% amendment, matrimonial court can e/ercise jurisdiction on the basis of residence of respondent. ". "#$3 Mad
nder 2ection "#, a petition in any matrimonial cause -indu Marriage !ct does does not not lay lay down down diff differ eren entt juri jurisd sdic icti tion onal al rule ruless in resp respec ectt of diff differ eren entt matri atrim moni onial caus causes es may be fil filed in the the 0ist 0istri rict ct 1ourt ourt withi ithin n whos whosee 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 the marriage last resided together, or -iv 6r in case the petitio petitioner ner is the wife where where she is residin residing g at the time time of presentation of petition, or -v
The petitioner petitioner is residing at the time time of the presentation presentation of the petition, petition, in in a
case where the respondent is, at that time, residing outside the territories to which this !ct e/tends, 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, - nder the indu Marriage !ct, the 0istrict 1ourt within whose jurisdiction the marriage was solemni&ed has the jurisdiction to ente entert rtai ain n a peti petiti tion on in any matri matrimo moni nial al caus cause. e. In a ind indu u marri marriag age, e, very very elab elabor orat atee cere ceremo moni nies es are are perf perfor orm med both both at hous housee of the the brid bridee and and the the bridegroom. The 0istrict 1ourt of that place will have jurisdiction where the essential ceremonies are performed. !mong indus, such ceremony !mong indus, such ceremonies are usually performed at the brides place. !nd that seems seems to be the rationa rationale le of conferrin conferring g jurisd jurisdict iction ion on the basis of lex loci celebrationis. owever, celebrationis. owever, 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 too( place is situated. %esidence as the basis of jurisdiction! - nder 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, @uestion as to where last resided together is a @uestion of both fact and law and can be resolved by adducing recording evidence under 6rder "?, Aule < of 1ode 6f 1ivil 8rocedure or the residence of the petitioner. The (ey word under all the three clauses is BresidenceC. In 9ana( 0ulari v. >arayana < , soon after marriage the husband and wife love din !mritsar !mritsar.. !fter !fter some time the wife wife left left the the husb husban and d and and went went to live live with with her her siste sisterr at 5urd 5urdas aspu pur. r. The husband,with a view to persuading his wife to return to matrimonial homewent to 5urdaspur and stayed there for a few days. The court held that the last time parties resided together was at !mritsar and not 5urdaspur. owevershort the stay may be at the matrimonial home that is enough. The India 1ourts have e/pressed 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 woul would d be the the plac placee wher wheree they hey last ast resi reside ded d toget ogethe herr. In 9eew 9eewan anti ti v. Dishan3 , parties parties belonged to !lmora, but were married in 0elhi and resided together in 0elhi for some time, the 2upreme 1ourt held that 0istrict 9udge !lmora, had no jurisdiction to entertain the nullity petition. In case when both the spouses are employed at different place and they have made a wor(ing 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 <. "#)# #)# 8unj unj )=. 3. "#F< 21 3..
The @uestion came up before the 8unjab and aryana igh 1ourt in 8ritima v.Mohinder ?. The court observed, 42uch visits of the wife or the husband cannot be termed as casual or flying. 6n the other hand, such visits though be termed as temporary visits by both the spouses, come within the meaning of the word 4resides7 and the word 4resided7. In this case before the disruption of marriage, the husband has resided at the wifeCs place. The court held that wifeCs place would be deemed to be the place where parties last resided together, and the court at the wifeCs place would have jurisdiction to try the divorce petition. *ut after !mendment of <==3 wife can file the petition at the place where she is residing on the date of presentation of petition. 2he cannot be compelled to move and application under 2ection <) or <$ in court which had earlier an ex partedecree partedecree of divorce. The The 2upr 2uprem emee 1our 1ourtt has has held held that that once once the the cour courtt deci decide dess that that it has has no jurisdiction it cannot proceed on the merits merits of the case.
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P%'C()%( I* M+T M+T%IM'*I+ %IM'*I+L L C+S(S C+S(S 2ect 2ectio ions ns "# to
Particulars in the petition and its ,erification!- 2ection <= 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 igh 1ourt 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 particulars of any prior proceedings proceedings between the parties to the petition petition and their outcome. The igh 1ourt Aules 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 re@uired to be given, such as when the ground is adultery, the adulterer is a necessary party and should be ta(en in pleading. It is necessary necessary that all material material facts and grounds must be stated in the petition, petition, and if a petitioner omits a ground, it cannot be ta(en in replication. In such a case petition should be amended. ! petition in a matrimonial cause has to be verified in the same manner as a plaint is re@uired to be verified under the 1ivil 1ivil 8rocedure 1ode.
+lternati,e and contradictor$ pleas and relief! - In pleadings, parties often
ma(e alternative and contradictory pleas. This is often done in matrimonial pleadings also. 2ection "3+! specifically provides for alternative relief in divorce proceedings. *ut the section covers certain specific cases. owever, under 6rder %, Aule < and 6rder $, Aule 1.8.1 an alternative relief can be granted granted in cases cases not covere covered d by 2ectio 2ection n "3+!. "3+!. but contra contradic dictor tory y pleadi pleadings ngs cannot be ta(en up. !lternative plea of divorce or restitution can be ta(en up. 8leading should be specific.
Co-respondent and inter,ener! -It has been laid down in the igh 1ourt Aules
that when a petition for judicial separation or divorce is based on the grounds of respondentCs adultery, then the alleged adulterer or adulteress should be made a party to the petition, unless the alleged adulterer or adulteress is dead, or his or her name is not (nown to the petitioner or for any reason the court considers that he or she need not be made a co+respondent. In 2arla v.2ha(untala v.2ha(untala) , the 8unjab igh 1ourte/pressed the view adulteress who is re@uired to be made a co+respondent is neither a necessary nor a proper party. It is submitted she is certainly a proper party, otherwise the petitioner may violate the Aule with impunity. impunity. 2ome of the igh 1ourt Aules provide that on the application of the petitioner, the court may award damages against the co+respondent. It is submitted that the absence of the specific provisions, the court has no inherent power to award damages against the co+respondent.
Cross-petition and sta$ of proceedins! -nder the indu Marriage !ct."#))
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 petitionerCs adultery, cruelty, or desertion and may ta(e a counter claim for a matr matrim imon onia iall reli relief ef on any any one one or more more of thes thesee grou ground nds. s. 2ect 2ectio ion n <3+! <3+! specifically empowers the court to give the resident relief to which he or she would have been entitled had he been a petitioner. *ut if no counter relief is claimed, then no matrimonial relief can be granted even if the ground for such a relief is established. ). "#%% "#%% 8unj 8unjab ab 33$. 33$.
In 1.2annaih v. 8adma % , the Darnata(a igh 1ourt observed that the wifeCs application for alimony and maintenance for herself and the children in the husbandCs petition for restitution of conjugal rights may be treated as a counter claim. It is submitted that this is not a correct view. !n application for alimony and maintenance for herself and children is merely an application for ancillary relief. In a petition for maintenance under indu !doptions and Maintenance !ct, no petition for counter claim of divorce can be made. made.
Sta$ of proceedins! -In some situations in the matrimonial petition, stay of
proceedings may be sought by either spouse. The indu Marriage !ct or the igh court Aules do not contain any provision in this regard, but stay of proceedings may be obtained under 2ection "= read r ead with 6rder ?", Aules ) and %, 1.8.1. as well as under the inherent jurisdiction of the court under 2ection ")", 1ivil 8rocedure 1ode. 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 stri(e 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 subse@uently the other spouse also presents a petition for divorce or %. "#F3 #F3 Dan Dantt "" ""?
other matrimonial relief in the same court or in a different court. nder the 181, the civil courts have power of joinder joinder of causes of actions, but the power is limited. 2ection <"+!, indu Marriage !ct 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. 2ection <"+! does not apply 2ection
(,idence! -nder 2ection <"+1, unstamped and unregistered documents have
been made admissible for the purpose of evidence in matrimonial matrimonial causes.
Hearin in camera! - 2ection << provides that the hearing in matrimonial cases
shall be in camera, and that any matters matters relating to such proceedings proceedings cannot be published or printed without the prior permission of the court. !ny judgement of the igh 1ourt or the 2upreme 1ourt in any matrimonial matter under the !ct may be published with the prior permission of the court.
(nforcement of decrees and orders! - 2ection
and orders made by the court in any proceedings proceedings under the indu Marriage !c !c shall be enforceable in li(e manner as the decrees and orders made in the e/erc e/ercis isee of the the orig origin inal al civi civill juri jurisd sdic icti tion on are are enfo enforc rcea eabl ble. e. ! judg judgem ement ent pronounced by competent court in a matrimonial cause determining the the status of parties but also against the whole world.
+ppeals! - 2ection
and decrees passed under the indu Marriage !ct e/cept as against all the interim order and orders and decrees for costs only. The period of limitation for appeals and orders is #= days. 8rovisions of 2ections )) and $, ;imitation !ct, apply to appeals under 2ection
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Aemarriage after the e/piry of period for appeal is valid. Hiling of appeal beyond that period is maintainable.
%emarriae durin the Pendenc$ of +ppeal In eena v. Aomesh F , the 8unjab and aryana igh 1ourt 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 remarri remarriage age during during the pendenc pendency y of appeal appeal is 4wilfu 4wilfull disobe disobedie dience nce to other other process of law7 and a 4civil contempt7.
ismissal of petitions under 'rder /#. %ule 0. Ci,il Procedure Code!-
When petition is dismissed in a matrimonial cause under 6rder #, Aule F, 181, a new position position may be filed' it is not barred by 6rder #, an e/ parte decree can be set aside under 6rder #, Aule "3, 181 but the 5auhati igh 1ourt ta(es a contrary view. 0! "#)) 8 G <"3
Pendin cases- +pplication of the Marriae Laws 1+mendment2 +ct. "#34!-
2ect 2ectio ion n 3#-< 3#-<,, Marr Marria iage ge laws laws -!men -!mendm dment ent !ct, ct, "#$% "#$%,, lays lays down down that that an amended provision of the indu Marriage !ct 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 leal representati,e. + !n action in a matrimonial cause is a
personal action. 6n the death of a party, his or her legal representative cannot be substituted. %eference %eference to arbitration! arbitration! - 2inc 2incee a judg judgem emen entt in matr matrim imon onia iall caus causee is a
judgement in rem, matrimonial matters cannot be decided by a reference to arbitration.
C'*CL)SI'* 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 We do not have any law law in resp respec ectt of eith either er.. Engl Englan and d has has two two stat statue uess on thes thesee subj subjec ects ts:: the the Matrimonial ome !ct, "#$%. The former protects the rights of wife in the matrim matrimoni onial al home. home. The latter latter statue statue provid provides es her protec protectio tion n from domest domestic ic violence. It is now increasingly recogni&ed that wives need protection against the domestic violence' the domestic abuse may include physical attac(s as well as emotional assaults. We also need similar statuses.
