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Report No. 15

Clause 24

General.-Where either the husband or the wife withdraws from the society of the other, the other party can sue for restitution. This substantive proposition has been placed in sub-clause (1.), The defences that are open have been put in sub-clause (2). The action to be taken by the court has been dealt with in sub-clause (3).

Sub-clause (1).-The wording used in the existing provision is that "either the wife or the husband" may sue for restitution. The wording used in the Hindu Marriage Act and the Special Marriage Act is, that the "aggrieved party" can sue. In the draft, the words "aggrieved party" have been used as more elegant.

Sub-clause (2).-The existing section provides that nothing shall be pleaded in answer to a petition for restitution, which would not be a ground for judicial separation or nullity. To this, the draft makes an addition by providing that a ground for divorce can also be pleaded. On this point, the draft follows the provision in the Hindu Marriage Act.

The negative language used here has been used in the other Acts also, and has therefore been retained.1

Sub-clause (3).-The existing section (as well as the corresponding provision in the other Acts) says, that if there is "no legal ground" why restitution should not be decreed, the court may decree it. This has been retained, after some consideration. (It was, at first, considered that the words "no valid defence" would be better. But, later, it was felt that the existing words are more precise2, 3).

1. For a discussion of the effect of this provision, see J.D.M. Derrett Recent Decisions and some Questions in Hindu Law, (1960) 62 Born LR (Journal) pp. 18, 20.

2. As to the meaning of "legal ground", see LR (1913) 80; 1948 I AER 188; 1950 AER 832.

3. Cf. Clause 39(1).

Report on the Law of Christian Marriage and Divorce Back

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