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Report No. 136

4.2. Can or cannot a respondent in a restitution of conjugal rights petition plead by way of defence that the marriage does not subsist? Should he or she be driven to a separate suit?-

Section 9 of the Hindu Marriage Act, 1955 provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition, to the District Court for restitution of conjugal rights and the court, on being satisfied of the truth of the statement made in such petition and on being satisfied that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. There is an Explanation to the section, dealing with the burden of proof of reasonable excuse.

There is a conflict of decisions on one question, namely, whether the respondent in the petition for restitution can raise a plea in defence, that the respondent had already obtained dissolution of the marriage according to custom. The High Court of Rajasthan has held1 that such a plea cannot be raised. The reason proffered is that the Act makes no express provision for the adjudication of a claim or defence that the marriage between the contending parties stands dissolved by a decision by a private forum like the Panchayat of the tribe. According to that High Court, such adjudication can be obtained only from the civil court and not from the matrimonial court.

But the High. Court of Jammu and Kashmir 2 has taken a contrary view. In its opinion, a petition under section 9 (for restitution) or under section 13 (for divorce) presupposes an existing valid marriage. The plea that no such marriage exists, either because. it never took place of because it was dissolved under a custom or a special enactment, is a defence open to the opposite party to non-suit the petitioner, even if such a defence has not been specifically provided in section 9.

According to this view, a matrimonial court can, and indeed is bound to, entertain a. defence raising a plea as to non-existence of a marriage or its non-performance or any other legal ground. The matrimonial court must mould its decree or order in accordance with its adjudication on it. It would appear that the latter view is correct. It is worth noting that section 29(2) of the Hindu Marriage Act, 1955 expressly provides that the Act is not to affect any right recognised by custom or conferred by any special enactment to obtain dissolution of a Hindu Marriage.

Thus, a custom is not abrogated by the Hindu Marriage Act, 1955. Incidentally, the Delhi High Court has held that the custom prevailing amongst Sikh Jats of the Amritsar District to dissolve the marriage otherwise than under the Hindu Marriage Act, 1955 is recognised by law, and where such a dissolution has been made out of court, a subsequent marriage cannot be declared null and void.3 The Commission is of the view that,-

(1) in order to immunize the unfortunate spouse involved in a matrimonial litigation from the evil of multiplicity of proceedings, and

(2) in order to ensure that all the controversies between the parties are resolved by the very court before which their matrimonial dispute is initially brought.

instead of driving the parties to a fresh litigation involving incurring of fresh costs the court must be expressly empowered to resolve all the relevant issues so that 'lis' between parties ends once and for all times. To resolve the conflict of views and in view of the considerations stressed earlier, it is recommended that an 'Explanation' broadly on the lines indicated hereunder be added to section 9:-

"Explanation 2.-The Court before which a petition for restitution of conjugal rights is presented under this section shall have jurisdiction to decide whether the marriage has been dissolved in exercise of any right recognised by any custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, being a right saved by sub-section (2) of section 29."

1. Damodar v. Urmila, AIR 1980 Raj 57.

2. Rano Devi v. Rishi Kumar, 1981 HLR 324 (J&K).

3. Balwinder Singh v. Gurpal Kaur, AIR 1985 Del 14.

Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back

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