Family Law II_Bars to Matrimonial Reliefs

Bars to Matrimonial Reliefs

  • Section 23 of the Hindu Marriage Act, 1955 only provides the list of grounds/bars to matrimonial reliefs.
  • There are mainly eight bars to matrimonial remedies. They are as follows -
    1.  Doctrine of Strict Proof 
      • The Court cannot merely pass a decree on the basis of admission of the Petition of the parties. 
      • The court may refuse to pass a decree for judicial separation, if it felt that, it was violation of the requirement of doctrine of strict proof enacted in Section 23(1) 
    2. Advantage of one’s own wrong or disability
      • This bar enacted only in the HMA1955.
      • This bars lays down that, if the Petitioner is directly or indirectly responsible for respondent’s wrong the petition cannot be granted.
    3. Accessory
      • This bar is applicable only when the Petition is filed on the ground of respondents’ adultery.
      • Accessory is usually term used in criminal law. It indicates the active participation of the Petitioner in the crime of the Respondent. If such participation is proved then the petitioner cannot get a decree. 
    4. Connivance 
      • The term Connivance is originated from the word connive. It means “to wink at”. 
      • Accessory and connivance have the same quality but in the former one there is an active participation by the Petitioner however, in the latter, there is corrupt intention but not active participation. 
      • Once the intention is proved, the Petitioner cannot entitle a decree.
    5. Condonation 
      • Condonation is applicable to the matrimonial offences of adultery and cruelty.
      • Condonation includes two essential components: forgiveness and reinstatement.
      • Case - Dastane V/s Dastane - In this case the Husband presented the Petition for judicial separation on the ground of wife’s cruelty. However, he was continued to cohabit with wife and few months before presentation of Petition, a child was born. The Supreme Court specifically observed that, the act continuance of sexual intercourse between the parties was nothing but forgiveness and reconciliation.  And therefore it raised a presumption of condonation.
      • It is applicable to all the matrimonial offences, since it is the general bar.
    6. Collusion 
      • We can say collusion means a secret understanding between the persons. 
      • The burden of proof lies on the petitioner to prove that there is no collusion. 
      • The foundation of the doctrine of collusion is on the rule that all those who want relief from the matrimonial court should approach before it with clean hands.
      • Originally under the Hindu Marriage Act, collusion was a bar to all matrimonial reliefs, but the Marriage Laws (Amendment) Act has abolished collusion as a bar to the petition.
    7. Delay
      • Improper or unnecessary delay is bar to matrimonial reliefs under HMA, 1955. The Petition must be presented before the court within reasonable time. 
      • The burden of proof that there has not been improper or unreasonable delay is on the Petitioner. 
    8. Residue Clause, Any other legal ground
      • It may be noted that, since this is general bar applicable to all matrimonial remedies. 
      • The residue clause has not yet come up for interpretation before the Indian Courts.

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